Security of Tenure of Public Servants & Their Disciplinary Process – Dismissal & Reduction in Rank

This is a commentary on the Security of Tenure of Public Servants & Their Disciplinary Process leading to a Dismissal & Reduction in Rank inspired by a recent news.

???? ???? ????? ??? ? ??? ?? ???-??? ????????? ??? ??????? ?? ????? ??? ?????? ???? ??? ???? ?? ???????? ??????? ?? ??????? ????????.

Minister Tiong King Sing explained that the removal was due to Ammar’s poor performance. See https://lnkd.in/g2mj2xUb 

However, some had challenged the removal as wrongful/unconstitutional, such as for failing to adhere to the due process and conditions under Article 135(2) of the Federal Constitution, which covers restrictions on dismissal and reduction in rank of a civil servant. See https://lnkd.in/g9vGcfyE.

Ammar himself has said that he was stunned to receive the termination, and was never given any prior notice or warning letter.

?? ??? ??? ????????’? ???????? ?? ?????? ????? ?? ?? ??? ???? ???????????, ??????

Further news have come out since that provided more facts which are relevant:

1. Ammar remains in employment, but was only removed from his post as DG
2. Ammar’s grade as a civil servant has remained.
3. Ammar had been reassigned into the role of Deputy DG instead.

My view is that the termination of the post of DG is valid because:

1. There is a difference between termination of post v dismissal / reduction in rank in the civil service. As per the FC case of ?????? ??? ???? ?. ??????? ??????????? ????? ?????? ???????? & ???????????? ???????? & ??? [????] ? ??? ???.
2. The former, which in this case the appointment of Ammar in the post of DG, is a power granted to the Minister pursuant to S.10(1) of the Malaysia Tourism Promotion Board Act 1992.
3. The power to appoint, comes with the power to remove, as per S.47 of the Interpretation Acts 1947 and 1968.
4. It is the latter, i.e. dismissal or reduction in rank, that requires compliance with Article 135(2) of the Federal Constitution as well as the Statutory Bodies (Discipline And Surcharge) Act 2000.
5. The rules, regulations, & process under Article 135(2) of the Federal Constitution & the Statutory Bodies (Discipline And Surcharge) Act 2000, had not been complied with in this case.
6. However, since Ammar had not been dismissed, and had not been reduced in rank (his grade has remained the same), the two laws do not apply & need not be adhered to.

Specifically the Federal Court in ?????? held as follows:

[24] This is the suitable juncture to address the core issue raised in the question of law – whether the Minister could dismiss the appellant or could dismiss the appellant in the manner adopted. First, it must be borne in mind that there is a world of difference between grade and post in the public service. Every officer joins the public service at a certain grade. He/she is promoted or demoted in grade. If a post is to be held by an officer of a certain grade, then the officer to assume and execute the duties of that post must be an officer of the required grade, either in current position or with promotion. But once an officer is promoted or demoted to a certain grade, his/her grade stays with him/her until his/her early or compulsory retirement. His/her post may change or may even be taken away altogether. An officer may not even hold a post. But his/her last grade will stay unaffected, regardless of the attendance or absence of an official post. And unless dismissed, an officer retires only upon him/her attaining the retirement age.”

In conclusion, I believe the removal of Ammar as DG was lawful.

Had the Minister wanted to terminate Ammar not only from his post as DG, but his employment all together, or to reduce Ammar’s grade, that can only be done, in summary, as follows:

1. Through a specially constituted Disciplinary Committee;
2. The Disciplinary Committee shall investigate the misconduct / poor performance;
3. If the Disciplinary Committee believes that there is prima facie case against the subject officer, there shall be a charge proferred against the subject officer, and which the subject officer has a right to reply to the same through a representation;
4. If the Disciplinary Committee there upon finds the reply to be not satisfactory, it can proceed to impose the punishment;
5. If the Disciplinary Committee believes further clarification is needed, it may constitute an Investigative Committee, which then a procedure like a “domestic inquiry” will be held for the subject officer;
6. Upon the completion of the investigation, the Investigation Committee shall submit a report on such investigation to the Disciplinary Committee;
7. Then, again the Disciplinary Committee will impose the punishment; and
8. If the subject officer is dissatisfied with the punishment, he/she may file an appeal to a specially constituted Disciplinary Appeal Committee.

At the end of the day, only the Disciplinary Committee can impose the dismissal or reduction in rank on the subject officer, and not the Minister.

We hope this clarifies the Disciplinary Process leading to a Dismissal & Reduction in Rank for a public servant which is similar but yet different to a private employee.

Should you face a similar situation, or know someone that does, feel free to contact us for help or representation.

Side Note 1: It is odd for the Minister to say that Ammar had been reassigned by him as Deputy DG, because the appointment of Deputy DGs should be through the Board i.e. Malaysia Tourism Promotion Board, not by the Minister himself, although his approval is required (as per S. 10(2) Malaysia Tourism Promotion Board Act 1992.

Side Note 2: P. Manoharan had been appointed as the new DG.