Sunday, October 2, 2011

[2011]3 ILR page 241

JUDICIAL REVIEW NO:R3(1)- 25-367-2009] 25TH OCTOBER 2010

In considering this application, I am mindful of the approach that this Court ought to take and I can no better than to refer to the judgment of Mohd Ghazali Yusoff JCA ( as His Lordship then was) in the case of Mernara Panglobal SDn. Bhd v Arokianathan Sivaprasagam [2006] 2 CLJ 501 of JR as follows:

I would think that in dealing with Judicial  Review a Judge should have the following principles, inter alia, in the forefront of his mind:

  1. JR is not an appeal from a decision but a review of the manner in which the decision was made.
  2. The HC is not entitled on an application for JR to consider whether the decision itself, on the merits of the facts, was fair and reasonable.
  3. The HC through JR, should not introduce technicalities of the Court of Law to the Industrial Court;this would certainly be so as s.30(5) of the Act imposes a duty upon the Industrial court to have regard to substantial merits of a case rather than to technicalities and it also requires the Industrial Court to decide a case in accordance with equity and good conscience.
  4. the main and only function of the IC in dealing with a reference under Sect.20 of the Act is to determine whether the misconduct or irregularities complained of  by the Management as to the grounds of dismissal were in fact committed by the workman and if so,whether such grounds constitute just cause for the dismissal.
  5. the Court should not be burdened with the technicalities regarding standard of proof, the rules of evidence and procedure that are applied in the Court  of  law;

Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn. Bhd [2010] 6 MLJ -at page 1

Harianto's Case has conveniently by-passed  the latest views on JR in Ranjit Kaurs Case. Why are the lower Courts still  stating that JR is not concerned whether the decision itself, on the merits of the facts was fair and reasonable when the Federal Court had stated  in Ranjit's case that there is no more distinction between JR and the Appeal  process?

There is a  glaring inconsistency now in this aspect of the law.
Students who want to score an "A' for this paper need to thrash out this issue  in a meticulously manner.

No comments:

Post a Comment