Monday, April 7, 2008



This was an appeal case tried in Federal Court of Malaysia. The appellant in this case R Rama Chandran an Employee was dismissed by the second respondent, the Malaysian Co-operative Consumer Society Ltd in the capacity as an Employer after two years of employment.

The Employee made a representation to the Director General for Industrial Relations under Section 20(1) of the Industrial Relations Act 1967 [hereinafter referred as the Act] claiming that he was dismissed by the Employer without just cause or excuse and asking that he must be reinstated to his former post, failing which he should be entitled to reasonable compensation for loss of earnings and loss of substantial gratuity, higher rates of the Employees’ Provident Fund [EPF], deprivation of housing loan and other benefits. His representation was referred to the Industrial Court, which subsequently held that the Employee was dismissed with just cause or excuse.

Later the Employee applied to the High Court for Judicial Review on various grounds appearing in his affidavit in support, which appear sufficiently in the judgments of the Federal Court but his application was dismissed. The Employee then appealed to the Federal Court against the decision of the High Court.

Broadly stated, the questions of law for the determination of the Federal Court were:-

  1. Whether the Award of the Industrial Court should be quashed; and
  2. If so, whether in the particular circumstances of this case the Federal Court had the power not merely to quash the Award of the Industrial Court and remit the case to the Industrial Court to hear and determine the same according to law, but to go further and itself find that the Employee had been dismissed from service without just cause or excuse, and to award fair compensation.


The question arise in this case was in regard with Labour Law. An Employee under an employment terminated his Employment by way of dismissal by an Employer. Now the Employee; R Rama Chandran claimed for wrongful or unlawful dismissal and relief by reason of failure of Industrial Court to consider allegations of biasness and victimization raised by him. Therefore, serious error of fact and law affect its jurisdiction. The issues that courts should determine is whether:-

(i) The dismissal was wrongful and without just cause or excuse; and
(ii) Award of the Industrial Court should be quashed


Allowing the Employee’s appeal, the presiding judges in this case came up with certain view for their judgments which as follows:-

  1. Reasons given for the termination of the Employee’s services in the Employer’s letter dated 20 April 1988 were not genuine and that the purported termination was mala fide and the Industrial Court in its Award did not at all address its mind to the issue of bias raised by the Employee which, in the Court’s view, was the central pillar of his case. The failure of the Industrial Court to address its mind to this fundamental issue was a serious error which affected jurisdiction and which resulted in the Award being quashed.
  2. The Industrial Court must scrutinize the pleadings and identify the issues, note evidence, hear the parties arguments and finally pronounce its judgment having strict regard to the issues. However, in this case, the Industrial Court had totally failed to consider the allegations of misconduct but simply concluded that because the letter of termination was grounded on retrenchment exercise, it was not bound and therefore not obliged to consider the issues of bias and misconduct.
  3. For question whether superior court can make a decision while quashing a decision of inferior court; there is no provision in the Courts of Judicature Act 196 and the Rules of the High Court 1980 or the Act expressly or impliedly prohibiting the High Court from granting any relief as provided for in the Act when quashing an Award of the Industrial Court. The court cannot override an express provision of the law, but if there is no express provision in the statute, then the court can exercise its powers in a suitable.
  4. A decision susceptible to Judicial Review is not only open to challenge on the ground of procedural impropriety but also on the grounds of illegality and irrationality; and in practice, this permits the Court to scrutinize such decisions not only for process but also for substance.
  5. On the question whether the extent of the Court’s powers in review jurisdiction includes the power to make consequential orders or releif for fair compensation in favour of the Employee, instead of remitting the case to the Industrial Court to make the same according to law, the members of this Court who comprised the majority were of the view that the entire material evidence for the purpose of assessing the monetary compensation payable being before them, all that was required was a simple arithmetical calculation, a task which this Court should perform.
  6. Section 30(3) of the Act requires the Industrial Court to make its Award without delay and where practicable within 30 days. Here, the Employee had been without a job for seven years, and the object and spirit of the Act to have industrial disputes speedily resolved in the national interests had been defeated and frustrated. The courts, therefore, should not be obliged to continue to arrive at decisions which are both unjust to the citizens and inimical to the public well-being simply because of something decided centuries ago.
  7. Finally, based on the facts on record, this was a fit and proper case where the jurisdiction of the Court should not end with the quashing of the Award. The High Court jurisdiction should not be curtailed or narrowed or constricted by mere reference to the old historical development in which the writ of certiorari was developed and came to be granted by the courts in England. If the application for certiorari is dismissed, that ends the matter. But if the application is allowed, the Court has surely to mould the order. If it were to merely grant certiorari to quash the Award and nothing more, this would deprive the writ of its vital and effective meaning and may result in grave injustice being caused to the Employee.


The most significant of the case R Rama Chandran V The Industrial Court Of Malaysia & Anor [1997] 1 MLJ 145 is that there appears to be a fear among some unions and workers generally [with the speed with which judicial review is affecting employment laws] that the superior courts may become too legalistic in exercising its supervisory role as the Judges may be remote from the everyday workings of the industrial relations and its problems unlike the Industrial Court specially constituted to deal with these on a daily basis in the course of its adjudication of disputes.

In the final analysis at least three [3] questions arise out of the exercise of the power of judicial review by the Courts. They are as follows:-

  1. Do they result in decisions that are too legalistic and complex and thereby limit the expansion and application of the scope of social justice?
  2. Does it allow inferior Tribunals like the Industrial Court to play its role in fulfilling the purpose to which it was set up?
  3. Do the review courts take into consideration or have the feel for socio-economic realities?

In Malaysia, our Constitution is based firmly on the separation of powers. Parliament makes the laws and the Judiciary interprets them. The Judiciary also develops the common law. Parliament confers all manner of powers on the Executive and other bodies. It is for the courts to ensure that those powers are neither exceeded nor abused but exercised lawfully. Hence the power of judicial review conferred on the courts.

The development of the law of judicial review and hence its scope depends very much on the extent to which the superior courts are prepared to take it to. Recently, the courts have been more active in enlarging the scope of the review process.

Previously a review could end with the quashing of a decision and/or an Order of Mandamus directing the inferior court to do something. However, in the recent case of R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 the Federal Court, after reviewing an Award of the Industrial Court for substance as well as the process, went further than the traditional method of granting relief. After quashing the Award of the Industrial Court the Federal Court itself proceeded to mould the relief that could be granted by the Industrial Court.

In the past the court would have remitted the case back to the Industrial Court for it to decide and grant any relief required. Thereafter, in several cases the superior courts in review proceedings after quashing a decision went on to determine and grant the relief instead of remitting the case back to the Industrial Court.

However, more recently there appears to be a reversal of this policy. A case in point is Koperasi Serbaguna Sanya Bhd (Sabah) v. Dr James Alfred (Sabah) & Anor [2000] 4 MLJ 87 (CA); Federal Court [2001] 3 MLJ 529 (FC). In this regard the scope of Judicial Review appears to be fluid and fluctuating.

The scope and extent of judicial review has, I think, been stated by the Federal Court in the landmark case of R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145. The views expressed therein have been accepted and adopted by the Malaysian Judiciary at the highest level. Indeed, in the recent case of Petroleum Nasional Bhd v. Nik Ramli Nik Hassan [2002] 2 MLJ 288.

Through my observation it’s quite clearly, the views expressed by the majority in R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 are not the product of what some legal commentators described as “Judicial Excessive”. On the contrary, they reflect the kind of controlled judicial activism that is needed in order to meet, in a supervisory context, the ever-widening powers conferred upon statutory tribunals or other bodies which have proliferated in modern times and affecting, quite conceivably, and all facets of society.

It has to be noted that in judicial review, the court does not substitute its opinion for that of the decision-maker on whom Parliament has conferred the power of decision. The court rules only on the legality of a decision - not on its correctness. In so doing, the court is not acting against the will of Parliament but in support of it. That is how it should be. In my view, by imposing requirements of fairness and rationality on public decision-makers, judicial review ensures that individuals are not subjected to arbitrary treatment by those entrusted with governmental power.

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