Kota Kinabalu: The High Court here allowed a judicial review by former Sabah Water Department engineer Teo Chee Kong, quashing the decision by the Secretary of Sabah Public Service Commission to sack him – ironically just 11 days before his due retirement.
Judicial Commissioner Dayang Ellyn Narisa Abang Ahmad, in her grounds of judgment dated June 9, held that the impugned decision dated Jan. 16, 2025 was “tainted by illegality”.
The Court ordered that Teo be treated as having remained in service until his compulsory retirement on Jan. 27, 2025, with full entitlement to pension, gratuity and other retirement benefits arising from that status.
“The practical consequence of quashing the dismissal is that the Applicant must be treated as having remained in the service until his compulsory retirement on 27 January 2025.
“He is therefore to be treated as having retired on that date, with the pension, gratuity and all other retirement benefits that follow from that status,” she said.
Teo, 61, who was the prosecution’s key witness in the Water Department’s Corruption trial, obtained leave to the Judicial Review in July last year, naming the Secretary of SPANS, the Sabah Water Department (JANS) and the State Government as respondents, in the application.
Teo, who served as a Jurutera Gred J52 with the JANS, was dismissed from service just 11 days before his compulsory retirement on Jan 27, 2025. Teo entered the service of the Sabah State Government in 1989.
On Oct. 4, 2016, he was arrested by the Malaysian Anti-Corruption Commission (MACC) and was suspended from duty with effect from that date, receiving only half his salary thereafter.
He was later charged on Dec 13, 2017, with 146 criminal charges at the Sessions Court, here. However, on March 17, 2022, the prosecution decided under Section 254 of the Criminal Procedure Code not to proceed further with the charges and the Sessions Court discharged and acquitted him on all 146 charges.
It was after he agreed to become state witness under a deal whereby he returned RM30 million to the State Government and in return for being allowed to keep some 15 land titles. There was no appeal against the acquittal.
According to the judgment, notwithstanding the acquittal, the respondents did not uplift the applicant’s suspension, did not reinstate him and continued to withhold part of his salary.
On Nov. 8, 2024, SPANS issued a show-cause letter to Teo under Peraturan 241(2)(b) of the Peraturan-Peraturan Pegawai Awam Negeri Sabah 2008 (PPPANS 2008) and he submitted his written representation on Dec 12, 2024.
On Jan 16, 2025, SPANS decided to dismiss him from the service under Peraturan 246(g) PPPANS 2008.
In considering the application, the Court examined Peraturan 232(7) PPPANS 2008, which addresses the consequences of an acquittal in criminal proceedings.
The Judicial Commissioner held that reinstatement to duty under the provision was permissive, while payment of withheld emoluments was mandatory.
“The above provision in my view clearly states that the reinstatement to duty is permissive as the word used is ‘boleh’ (may). But payment of the withheld emoluments is mandatory and this can be seen in the word used is ‘hendaklah’ (shall),” she said.
She further said: “In the circumstances and upon an unappealed acquittal, the disciplinary authority in this case has a discretion whether to restore the officer to duty.
However there is no discretion to withhold the emoluments that accrued during the suspension.”
The Court found that Teo was acquitted on March 17, 2022 and no appeal was filed, but the respondents never paid him the withheld emoluments, never restored his salary and never recorded any reason for not doing so.
“In my ruling this is a plain breach of the mandatory duty in Peraturan 232(7) as regards the emoluments,” the Judicial Commissioner said.
The Court also considered Peraturan 234 PPPANS 2008. The Judicial Commissioner said the show-cause letter dated Nov 8, 2024 mirrored the factual allegations underlying the 146 criminal charges of which Teo had been fully acquitted.
She noted that the respondents did not identify any fresh ground or fresh material distinct from the criminal allegations on which the disciplinary action was founded.
“On the material before me I am satisfied that the disciplinary action substantially raised the same issues as the criminal proceedings, and so fell foul of Peraturan 234.”
The Judicial Commissioner held that the impugned decision was tainted by illegality.
The Court granted an order of certiorari quashing the Jan 16, 2025 decision.
“The practical consequence of quashing the dismissal is that the Applicant must be treated as having remained in the service until his compulsory retirement on 27 January 2025.
He is therefore to be treated as having retired on that date, with the pension, gratuity and all other retirement benefits that follow from that status.”
The Court awarded costs of RM10,000, subject to allocatur, to be paid by the respondents to Teo. Teo had sought judicial review of SPANS’ decision dated Jan 16, 2025 dismissing him from his post as a Grade J52 engineer with the Sabah Water Department under Peraturan 246(g) of PPPANS 2008.
Among the reliefs sought were an order of certiorari to quash the dismissal, declarations that the disciplinary action was unlawful, and orders compelling the respondents to pay his salary, allowances and other benefits up to his retirement on Jan 27, 2025.
Teo also sought declarations that the disciplinary proceedings were conducted without properly determining the alleged breach against him, that he was dismissed without due consideration of his representation during the show-cause process, and that his discharge and acquittal on all 146 criminal charges should be taken as meaning he had not tarnished the image and reputation of the public service.
Teo was represented by Datuk Ram Singh together with Prem Elmer Ganasan, while the respondents were represented by Calvin Joy Ensui of the State Attorney-General’s Chambers.
