DALAM
MAHKAMAH RAYUAN
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO. W-02-792-2005
ANTARA
DR.
DAVID VANNIASINGHAM RAMANATHAN … PERAYU
DAN
SUBANG JAYA MEDICAL CENTRE
SDN BHD … RESPONDEN
[Dalam Perkara Saman Pemula No. R1-24-56 Tahun 2005 Dalam Mahkamah
Tinggi Malaya di Kuala Lumpur (Bahagian Rayuan Dan Kuasa-Kuasa Khas)
Dalam
perkara mengenai pekerjaan Plaintif sebagai seorang doctor di hospital Defendan
sejak
Dan
Dalam
perkara mengenai Representasi bagi Pengembalian Jawatan bertarikh
Dan
Dalam perkara mengenai Perkara 8(1) Perlembagaan Persekutuan
Dan
Dalam perkara mengenai Perenggan 1 dalam Jadual kepada Akta Mahkamah Kehakiman 1964
Dan
Dalam perkara mengenai Seksyen-seksyen 20(1), 1(A), (2) dan (3) Akta Perhubungan Perusahaan 1967
Dan
Dalam perkara mengenai Seksyen-seksyen 41, 42, 50, 51, 52, 53 dan 55 Akta Relif Spesifik 1950
Dan
Dalam perkara mengenai Aturan 7, Aturan 28, Aturan 15 kaedah 16, Aturan 29 dan Aturan 92 kaedah 4 Kaedah-kaedah Mahkamah Tinggi 1980
ANTARA
DR. DAVID VANNIASINGHAM RAMANATHAN … PLAINTIF
DAN
SUBANG JAYA MEDICAL CENTRE SDN BHD … DEFENDAN]
Coram:
Abdul Aziz Mohamad, JCA (now FCJ)
Mohd
Ghazali Mohd Yusoff, JCA
Zaleha
Zahari, JCA
JUDGMENT
1. 1. The appellant, a general surgeon, had been
practising as a medical practitioner at the respondents’ hospital since 1985
under successive agreements called “Agreement Active Status”, the last of which
was dated
“7. PERIOD Of AGREEMENT
a)
This Agreement shall come into force on the 1st day
of October 1995 for a period up to
b)
In the event SJMC elects not to renew any term
of this Agreement, SJMC agrees to
hold prior consultation
with and receive input from the
MAB.
c) Notwithstanding
anything to the contrary, this Agreement
may at any time be terminated by mutual consent of the parties hereto.”
2. On
3. Considering himself a “workman” as
defined in the Industrial Relations Act 1967 and the respondents his employer
and the notice as tantamount to a dismissal of himself by his employer without
just cause or excuse, on 1 July 2005 the appellant filed at the appropriate
office of the Director General for Industrial Relations his representations in
writing to be reinstated in his former, or what would soon be his former,
office. The making of the representations was done pursuant to section 20(1) of
the Act. The Director General was to
take necessary steps towards an expeditious settlement of the
representations. If there was no
likelihood of the representations being settled he was to report to the
Minister, who, under section 20(3), may, if he thinks fit, refer the
representations to the
4. On
5. As to the appellant’s reason for
needing the injunction, in his oral submission before us the appellant’s
counsel submitted that if the appellant was allowed to remain and work at the
hospital, should he succeed in getting reinstatement, he would be there already,
whereas if he was deprived of his job for many years before he succeeded in the
Industrial Court, the court might not order reinstatement for reason of
unfitness or unsuitability as happened in R
Rama Chandran v The Industrial Court of Malaysia [1997] 1 MLJ 145 at p. 185
D-E. In this connection counsel cited
Goddard CJ’s lament in Ashton v Shoreline
Hotel [1994] 1 ERNZ 421 at page 436 about the remedy of reinstatement in
the Employment Tribunal having become “something of an endangered species” and
his call for the ordering of reinstatement where there is no good reason for
refusing to order it. It is fair to
point out that the fear of not being given reinstatement was not quite the
reason given by the appellant in his affidavit.
In paragraph 23 of his affidavit dated
“(b) This process may easily take up to 3
years, if not longer. Thus, the statutory remedy of reinstatement may be meaningless when and if it is
awarded given that the fairly
large body of patients under my care would
have been reassigned or referred to other doctors
and my position as a Consultant General Surgeon
in the Defendant hospital extinguished.”
What
the appellant feared was not that reinstatement would be refused him but that
“when and if it is awarded” the order of reinstatement might be meaningless for
the stated reasons.
6. At the High Court the learned judge
heard the summons-in-chambers inter partes, and he dismissed it. Consequently he also dismissed the originating
summons. This appeal followed.
7. The learned judge agreed with the
respondents’ contention that such an injunction as the plaintiff sought “cannot
be given during the pendency of a representation for reinstatement under the
Act”. He went on to say in paragraph 15
of the grounds of judgment: “In fact there has been a succession of cases which
have declined or revoked interim injunction during the pendency of a referral
to the
8. The other case, which appears to be a
reinstatement case, is Penang Han Chiang
Associated Chinese School Association v National Union of Teachers in
Independent Schools, West Malaysia [1988] 1 MLJ 302, a decision of the
Supreme Court, then the apex court. It
was about certain teachers employed by the appellants on a fixed term, yearly,
basis under service agreements which provided for renewal of the contract. Disputes arose between the appellants and the
teachers but the cause or nature of the disputes is not spelt out in the
judgment. A complaint was made to the
Ministry concerned and the Minister referred the complaint to the
“ Now, this is an action where the
respondents, purporting to represent former teachers employed by the appellant,
alleges breaches of service contracts, which trade dispute had been referred by
the Minister of Labour to the Industrial Court for a hearing. In our judgment, when a trade dispute had
been invested in the
We
take that to be a conclusion reached after rehearing the whole application on
its merits. The interlocutory injunction
was set aside.
9. From the phrases “allegation of
wrongful dismissal” and “to reinstate the workman” in the passage it may be
assumed that in that case the teachers had complained of wrongful dismissal and
had sought reinstatement, although it is not revealed how all that was
connected to a reference under section 8, which concerns complaints of
contravention of sections 4, 5 and 7 about rights in respect of trade
unionism. But the message is clear. Where a trade dispute, “particularly one
involving allegation of wrongful dismissal”, is with the
10. As to why the Supreme Court considered
that the granting of the interlocutory injunction was not an exercise of
judicial discretion, the reason is given at page 303 G-I (left) in the
following words:
“The learned
judge did not appear to consider the balance of convenience. If he had done so, he seemed to have
disregarded the well-established rule that a contract for service or service
contract would not be specifically enforced by the High Court (see section
20((1)(b) of the Specific Relief Act 1950) and that an injunction cannot be
granted to prevent the breach of a contract the performance of which would not
be specifically enforced (see section 54(f) of the same Act and Hill v C.A. Parson & Co. Ltd. [1977]
3 All E.R. 1345).”
Although
disregard of the unavailability of injunction to specifically enforce a service
contract was the reason for the finding that the granting of the interlocutory
injunction in that case was not an exercise of judicial discretion, the
decision of the Supreme Court to set aside the interlocutory injunction after
rehearing the whole application on its merits was not founded on that
reason. From the passage earlier quoted
in which the Supreme Court stated their conclusion, the reason appears to be of
a jurisdictional nature. The thinking
seems to be that since the power to decide a trade dispute, including the reinstatement
of a workman, is vested in the Industrial Court and not in the High Court, the
High Court has no jurisdiction to play any role in respect of the dispute,
including the granting of interlocutory injunctions for the relief of a party
to the dispute.
11. Learned counsel for the appellant in his
oral submission advanced this argument in order to persuade us not to treat the
decision as good authority. He said that
it was not brought to the attention of the Supreme Court that section 20(1) of
the Act provides, by the remedy of reinstatement, an exception to the rule that
a contract of service cannot be specifically enforced and that in Fung Keong Rubber Manufacturing (M) Sdn.
Bhd. v Lee Eng Kiat & Ors [1981] 1 MLJ 238 the Federal Court, the then
apex court, at page 239 H (right), described the remedy of reinstatement as “a
statutorily recognized form of specific performance”. The argument might be relevant only if the
reason for the setting aside of the interlocutory injunction was because a
contract of service cannot be
specifically enforced, but as has been observed, that was not the reason. The reason was of a jurisdictional nature.
12. The appellant’s counsel also sought to
distinguish the Penang Han Chiang
case from the present case by the fact that in that case the dispute had gone
to the
13. The appellant’s counsel further submitted
that according to Penang Han Chiang
an interlocutory injunction may be issued in “very special circumstances”. Apart from the fact that the decision gives
no indication of the kind of circumstances that may be considered very special
and the fact that we are moreover reluctant to hold that the circumstances in
this case are very special, it seems to us that the Supreme Court themselves
did not envisage the existence of very special excepting circumstances as
likely. They said that no attempt had
been made to show the existence of very special circumstances in the appeal and
the reason for the absence of such an attempt was, to them, the obvious one of
jurisdiction. It was as though to the
Supreme Court, for the reason of jurisdiction, and not for any want of merit,
any attempt to show the existence of very special circumstances would have been
in vain, and the respondents knew it.
14. It makes good sense that in a case of
representations for reinstatement under section 20(1) of the Act the High Court
should not grant, or should be incapable of granting, an interlocutory
injunction so that the workman remains in the job until the determination of
his representations. The Minister, in
deciding under section 20(3) whether or not “he thinks fit” to refer a
workman’s representations to the Industrial Court, will have to act according
as to whether he finds that there are issues that need to be tried in the
Industrial Court. In this case, for
instance, the issues are whether the appellant is a “workman” and, if he is,
whether the respondents’ refusal to renew the agreement was valid. The decision of the Minister is subject to
judicial review by the High Court subsequently.
For the High Court to now consider granting an interlocutory injunction,
it will have to decide, first and foremost, whether there are serious issues to
be tried in the
15. The learned judge was right in relying on
Penang Han Chiang as an authority
that bars the granting of the interlocutory injunction that the appellant
sought. That authority is binding on us,
but apart from that, as has been explained, it is right that an interlocutory
injunction should be incapable of being granted to enable a workman to remain
in his job until his representations come to the end of the process. It is therefore not necessary to consider the
string of cases from other jurisdictions cited by the appellant’s counsel,
headed by Hill v C.A. Parsons & Co.
Ltd. [1972] 1 Ch. 305, to persuade us that interlocutory injunctions have
been granted as an exception to the rule that contracts of service are not
specifically enforceable, beyond saying that those are not cases that involved the
impediment of another jurisdiction, the industrial-relations jurisdiction, as
the present case does.
16. We dismiss this appeal with costs and
order that the deposit be paid to the respondents to account of taxed costs.
Dated:
DATO’ ABDUL AZIZ BIN MOHAMAD
Judge
Federal Court of Malaysia
Counsel
for the appellant: Su Tiang
Joo
(Teh
Eng Lay with him)
Solicitors for the appellant: Cheah
Teh & Su
Counsel for the respondents: Dato’ M. Pathmanathan
(Rutheran
Sivagnanam with him)
Solicitors for the respondents: R. Sivagnanam & Associates
D:J-W0279205(CAV)
8.12.2006