industrial court malaysia case no. 4/4

INDUSTRIAL COURT MALAYSIA
CASE NO. 4/4-691/10
BETWEEN
PUAN SUZANA BINTI ZAKARIA
AND
SISTEM TELEVISYEN MALAYSIA BERHAD
AWARD NO.
1171 OF 2014
BEFORE :
Y.A. TUAN P IRUTHAYARAJ A/L D PAPPUSAMY
Chairman (Sitting alone)
VENUE :
Mahkamah Perusahaan Malaysia
Kuala Lumpur
DATE OF REFERENCE:
14.05.2010
DATES OF MENTION :
26.07.2010, 06.09.2010, 08.11.2010, 17.01.2011,
15.03.2011, 18.11.2013
DATES OF HEARING :
26.04.2011, 17.02.2012, 07.11.2012, 09.11.2012,
04.02.2013, 05.02.2013, 27.05.2014, 28.05.2014,
09.06.2014, 10.06.2014, 02.07.2014, 03.07.2014,
04.07.2014, 11.08.2014, 12.08.2014
[1]
DATES OF WRITTEN:
SUBMISSIONS
Written Submission by the Company filed on
28.08.2014;
Written Submission by the Claimant filed on
18.09.2014;
Written Submission in Reply by the Company
filed on 29.09.2014;
REPRESENTATION :
En. Shaik Azrin bin Shaik Daud of Messrs
Shaik Azrin & Co represented the Claimant.
En. M.V. Gopal of MEF represented the
Company.
[2]
REFERENCE :
This is a reference by the Honourable Minister of Human Resources under
Section 20(3) of the Industrial Relations Act 1967 for an award in respect of
a dispute arising out of the dismissal of PUAN SUZANA BINTI
ZAKARIA (hereinafter referred to as “the Claimant”) by SISTEM
TELEVISYEN MALAYSIA BERHAD (hereinafter referred to as “the
Respondent”).
[3]
AWARD
The parties to the dispute are Puan Suzana binti Zakaria (“the Claimant”)
and Sistem Televisyen Malaysia Berhad (“the Respondent”). The dispute
which has been referred to the Industrial Court by way of a Ministerial
Reference under Section 20(3) of the Industrial Relations Act 1967 (“the
Act”) is over dismissal of the Claimant by the Company on 21.08.2007.
Background Facts
The Claimant commenced employment with the Company on 01.04.1995 as
an Executive, Production Resource at the Entertainment Department of the
Company. On 01.08.1996, she was transferred to one of the Company’s
subsidiary, Ambang Klasik Sdn. Bhd (“AKSB”). During the Claimant’s
tenure at AKSB, she was promoted to the position of Senior Executive,
Album Promotion with effect from 01.01.2001.
AKSB on 08.02.2002.
[4]
She was retrenched by
Pursuant to the Industrial Court Award No. 416 of 2005, the Claimant was
reinstated on 17.03.2005 and posted to the Human Resources Department
as a Senior Executive. On 13.04.2005, the Claimant was assigned to the
Business Development Department.
On 01.01.2006, the Claimant was
transferred to Branch Management Group and placed under the Special
Project Unit where the Claimant was assigned to secure the necessary
licences and permits from the respective local authorities namely, Dewan
Bandaraya Kuala Lumpur (“DBKL”) and Majlis Bandaraya Shah Alam
(“MBSA”) for events organised by the Company.
The audit committee of the Company in the course of their review of
Special Project (TVN) had discovered suspicious documents purportedly
issued by DBKL and MBSA in connection with Karnival Sure Heboh (2005),
Karnival Jom Heboh (2006) and Junior Sports Carnival (2006) events.
Hence the audit committee commenced a preliminary investigation on
29.06.2007, produced and presented a report (“the report”) on its findings
to the management of the Company. The report essentially concluded inter
alia that based on the comparison of documents submitted to the Finance
[5]
Department by the Claimant against documentary evidence obtained from
both DBKL and MBSA which indicated that false documents had been used
to account for cash advances taken for the purpose of securing licenses
from DBKL and MBSA. Based on the documentary evidence and also
compounded by the Claimant’s own admission that she had personally
dealt with the respective local authorities to secure licenses for Karnival
Sure Heboh (2005), Karnival Jom Heboh (2006), and Junior Sports Carnival
(2006) the audit committee concluded that there is a prima facie case against
the Claimant with regard to this matter.
Pursuant to this audit, the Company issued the Claimant a show cause
letter dated 06.07.2007 and requested the Claimant to provide a letter of
explanation by 13.07.2007 on certain inconsistencies that have been
discovered by the Company.
The Company had written to MBSA and DBKL on 16.07.2007 and sought
clarification from them with regard to the licences/permits obtained by the
Claimant.
[6]
DBKL and MBSA replied vide letter dated 17.01.2007 and 18.07.2007
respectively wherein they clarified on the licenses submitted by the
Claimant against their records.
DBKL in their reply letter dated 17.07.2007 stated at paragraph 2 at page 30
of COB-1 that “2.
Sukacita dimaklumkan bahawa jabatan telah menyemak
dengan fail permohonan yang dipohon dari Sistem Televisyen Malaysia Berhad
dan didapati terdapat beberapa perbezaan seperti di Lampiran”. MBSA in their
reply letter dated 18.07.2007 stated at paragraphs 2 and 3 at page 39 of
COB-1 that “2. Dengan ini dimaklumkan bahawa pihak Majlis telah menyemak
dokumen dan resit yang dilampirkan bagi tujuan di atas. Adalah dimaklumkan
segala maklumat yang dilampirkan pihak tuan pada dokumen dan resit adalah
tidak benar dan tiada dalam rekod system Majlis.
3.
Untuk pengetahuan tuan kadar bayaran yang dinyatakan juga berbeza
daripada rekod di Majlis. Berikut adalah kadar bayaran yang diluluskan oleh
Majlis”.
[7]
Based on the investigation report by the audit committee together with the
clarification provided by DBKL and MBSA in their respective reply letters,
the Company decided to hold a Domestic Inquiry (“D.I.”) on the Claimant.
For this purpose a Charge Letter dated 30.07.2007 containing the charges
was issued to the Claimant together with the Notice of D.I. which was
schedule to be held on 08.08.2007.
The Claimant attended the D.I. on 8 and 9 August 2007 to answer the
charges. The D.I. panel found the Claimant guilty of both charges levelled
against her.
The Company based on the findings of the D.I. panel dismissed the
Claimant on 21.08.2007.
Witnesses
1.
For the Company the following witnesses testified:-
[8]
(a)
Tengku Iestarabie Putra b. Tengku Alaudin is the General
Manager, Film and Dance Studio Business Corporate Affairs
(COW-1) and his witness statement is marked as COWS-1;
(b)
En. Nik Norisra bin Nik Norzlan is currently the Manager
Group Corporate Governance but he was an Executive with the
Internal Audit Department in 2005 (COW-2) and his witness
statement is marked as COWS-2;
(c)
En. Halim bin Mas’od is currently the General Manager, Project
Management but he was the Manager, Special Project in 2007
(COW-3) and his witness statement is marked as COWS-3;
(d)
En. Amiruddin bin Ismail is the Senior Executive, Finance
(COW-4) and his witness statement is marked as COWS-4;
(e)
Puan Sarah binti Salleh is the Pembantu Tadbir Kanan (Sr
Assistant Administrator) in Jabatan Pelesenan di Dewan
Bandaraya Kuala Lumpur (COW-5) and her witness statement
is marked as COWS-5;
[9]
(f)
Puan Najati binti Mohamad is the Kerani Proses at Jabatan
Pelesenan DBKL (COW-6) and her witness statement is marked
as COWS-6;
(g)
En.
Rosli
bin
Bakar
is
the
Pengarah
Pelesenan
dan
Penguatkuasaan at MBSA (COW-7) and his witness statement
is marked as COWS-7;
(h)
En. Zulkifli bin Muhammad is the Penolong Pengarah Kanan at
the DBKL (COW-8) and his witness statement is marked as
COWS-8;
(i)
En. Azizan bin Md. Dewa is the Senior Account Executive in the
Company (COW-9) and his witness statement is marked as
COWS-9;
(j)
En. Dicky Sophian bin Saed is the Accounts Executive in the
Company (COW-10) and his witness statement is marked as
COWS-10;
(k)
En. Zahid bin Johan Lai is currently the head of Branch
Activation of the Marketing Department of NSTP. In 2005 he
[10]
was a Manager, Special Project in TV3 (COW-11). He gave oral
evidence without any witness statement.
(l)
Puan Zurina binti Azmi is Pembantu Tadbir at Jabatan
Pelesenan dan Penguatkuasaan di MBSA (COW-12). She gave
oral evidence without any witness statement.
For the Claimant only she herself testified (CLW) and her witness
statement is marked as CLWS.
Issues
The issues for determination are as follows:(a)
Whether the Claimant was dismissed by the Company;
(b)
If so, whether the dismissal of the Claimant by the Company was
with just cause or excuse.
[11]
The Law
The function of the Industrial Court has been propounded by Mohd. Azmi
FCJ in the Federal Court case of Milan Auto Sdn. Bhd. v Wong She Yen
[1995] 4 CLJ 449 (“Milan case”) which is as follows:“As pointed out by this Court recently in Wong Yuen Hock v Hong Leong
Assurance [1995] 3 CLJ 344, the function of the Industrial Court in dismissal
cases on a reference under s 20 is twofold: first, to determine whether the
misconduct complained of by the employer has been established and secondly
whether the proven misconduct constitutes just cause or excuse for the dismissal.”
In the case of Goon Kwee Phoy v. J & P Coats (M) Sdn. Bhd. [1981] 2 MLJ
129 (“Goon’s case”) the Federal Court enunciated the following principle:“….. Where representations are made and are referred to the Industrial Court for
enquiry it is the duty of that Court to determine whether the termination or
dismissal is with or without just cause or excuse. If the employer chooses to give a
reason for the action taken by him the duty of the Industrial Court will be to
enquire whether that excuse has or has not been made out. If it finds as a fact that
[12]
it has not been proved then the inevitable conclusion must be that the termination
or dismissal was without just cause or excuse. The proper enquiry of the court is
the reason advanced by it and that court or the High court cannot go into another
reason not relied on by the employer or find one for it.” [Emphasis added]
It is trite law that the Company bears the burden to prove that the Claimant
had committed the alleged misconduct and that the misconduct warrants
the Claimant’s dismissal [see Ireka Construction Berhad v. Chantiravathan
a/l Subramaniam James [1995] 2 ILR 11 (Award No. 245 of 1995)].
The Company need only to prove misconduct justifying the dismissal or
termination on the balance of probabilities [see Telekom Malaysia
Kawasan Utara v Krishnan Kutty a/l Sanguni Nair & Anor [2002] 3 CLJ
314 (CA)].
[13]
Let me now deal with the following issues:(A)
Whether the Claimant was dismissed by the Company in the first
place?
The answer to this question is in the affirmative since the Claimant was dismissed by the Company vide the said Dismissal Letter dated 21.08.2007.
(B)
Whether the dismissal of the Claimant by the Company was with
just cause or excuse?
The contents of the said Dismissal Letter dated 21.08.2007 is reproduced as
follows:-
[14]
[15]
[16]
Before dealing with Charges (a) and (b) as to whether the Claimant is
guilty of them, I must deal with the preliminary point raised by the
Claimant in her written submission. The preliminary point is this.
(i)
Whether the charges against the Claimant is valid?
The Claimant essentially contended that the charges preferred by the
Company against her is null and void on grounds of vagueness and want
of material particulars as the charges against her were semi-criminal in
nature.
In this regard she specifically stated the following 2 reasons why the
charges were not valid:(a)
that the Company had taken a general and simple approach by
lumping the charges together without specifying which bills and
licenses were submitted and on what particular dates and to whom
the bills were actually submitted; and
[17]
(b)
that it is unfair for the Claimant to have faced the charges which were
general in nature without specific details.
In support of her contention she referred to the following cases:(i)
Mahaini Mat Rasid v NZ Wheels Sdn Bhd Award No. 677 of 2013
(“Mahani Mat Rasid”)
(ii)
Esso Production (M) Inc v Maimunah bte Ahmad & Anor [2002] 2
MLJ 458 (“Esso Production”)
(iii)
Intrakota Consolidated Bhd v Mohamad Roslin Md Shah & Anor
[2008] 8 CLJ 81 (“Intrakota”)
In my view the principles applicable in the above mentioned cases based
on the validity of charges can be distinguished from the nature of charges
in the instant case on the following grounds:-
(i)
Firstly in the case of Mahaini Mat Rasid the 2 nd Charge in that case
reads as follows:-
[18]
“Pada 18hb Januari 2006, jam lebih kurang 10.30 pagi anda telah
mengeluarkan kata-kata berunsur ugutan kepada Pegawai Sumber Manusia
Kumpulan, Mohd Iskandar Dzulkarnain dengan disaksikan Pengurus
Workshop, James Kow bersama-sama Penolong Pengurus, En Harun Ali di
Pejabat Pengurus Bengkel NZ Wheels Sdn Bhd Klang apabila disoal siasat
mengenai perkara di atas”.
The key element in this 2nd Charge to be proven is “mengeluarkan kata-kata
berunsur ugutan”. The major problem with this element is that the 2 nd
Charge does not specify clearly what were the exact words used by the
Claimant as amounting to “kata-kata berunsur ugutan” (words of elements of
threat). Hence the charge was vague and therefore was bad in law. In
short the charge was invalid.
(ii)
In the case of Esso Production the two (2) charges referred to were:“1. That you received $400.00 from Aladdin bin Mohd. Hashim, knowing
that this sum was part of the money received from Company’s contractors,
Oilfield Resources Sdn. Bhd. Or its representatives in return for assistance
rendered in relation to payment of that contractor’s invoice in contravention
of the Company’s Gift and Entertainment Policy and the Conflict of Interest
Policy.
2.
That you concealed and failed to disclose to the Company’s
Management, the existence of irregular business practices and/or violation
by employee and/or yourself, of the above-mentioned Company’s policies”.
[19]
The High Court judge at the Judicial Review stage commented (which was
upheld by the Court of Appeal) that since the 2 charges are criminal or
semi-criminal in nature and as such the material particulars such date, time
and place the offences were alleged to have been committed were absent
since Charge 1 refers to “the receiving of RM400.00 from Aladdin bin Mohd
Hashim.....” and Charge 2 refers to “concealing and failing to disclose”. Hence,
the 2 charges were invalid and void ab initio.
(iii)
In the case of Intrakota, the charge referred to was:“Bahawasanya saudara Mohamad Roslin bin Md. Shah (02987), seorang
petugas dalam perkhidmatan Intrakota Consolidated Berhad, telah
melakukan salah laku mengarah penumpang memberi wang kertas RM2.00
No. Siri DW 3273427 yang merupakan tambahan penumpang tersebut
kepada rakan saudara semasa menjalankan tugas memandu bas WFK 2526
pada 7 April 2000”.
In this case at the Judicial Review stage, High Court Judge commented on
the defective nature of charge as follows:“Adverting to the case before me, I am of the view that the charge as
preferred is defective and bad in law for non-disclosure of material
particulars as complained by the Claimant. On the same account it is
also highly prejudicial to the Claimant’s defence. Since the Claimant
was accused of directing the penumpang to pay his bus fare to the
Claimant’s rakan, it is only proper that the identity of the said
[20]
penumpang and rakan should be disclosed in the charge. God knows
how many penumpang has embarked and disembarked from his bus
since he took over duties on that day. Therefore in such event the
need to identify which penumpang in issue is very real. The non
disclosure of the identity of the said penumpang is certain to hamper
the adequacy of the Claimant’s defence for he would be placed in
limbo to conjecture which particular penumpang was meant by the
Company. The same equally applies to the non-disclosure of said
rakan and the time and place where the alleged offence was
committed. Only God knows how many rakan the Claimant had
along in his bus that day. Or which rakan is the relevant rakan in
issue”.
Based on this rationale, the High Court held that the defective charge is
void ab initio.
As far as the instant case is concerned I am satisfied that the following
essential particulars are present in the charges:-
Charge (a)
(i)
Charge (a) contains the following key particulars:a)
the time period of the offence being between “December 2005
to January 2007”;
[21]
(b)
the nature of offence being the “submission of false bills
totalling RM41,720.00”;
(c)
the purpose for this sum of RM41,720.00 in item (a) above is for
securing of licenses from DBKL and MBSA;
(d)
it also specifies the securing of licenses for the 5 specific events
listed below in the said charge;
(e)
the said charge specifically makes reference to the comparison
between the “bill amount submitted” by the Claimant and the
“actual cost” incurred by the Company for securing of the
licenses for each of the 5 events mentioned therein;
(f)
as a matter of fact page 59 of COB-1 specifically states after the
said charge as follows:“Attached under Appendix A are copies of these bills
submitted by you against actual receipts and confirmation
letter provided to the Company by DBKL.
In addition listed under Appendix B, are the copies of bills
submitted by you against the letter received by the Company
from MBSA confirming that the bills were not issued by them”.
[Emphasis Added]
[22]
g)
the Claimant never denied the existence and attachment of
Appendix A and B under Charge (a). There is no evidence that
their existence were rebutted at the D.I. and certainly the
existence of Appendix A & B were also not denied during the
hearing proper as well;
h)
the D.I. panel in their Panel Findings found at page 142 of
COB-1 at item 4 had stated “The panel was also informed of the
audit process that led to the charges only being levelled against her in
2007 and understand that although the charges levelled against her
took place in 2005 and 2006, this was due to the scheduled Internal
Audit review by CGRM on Special Projects. The Prosecutor also
showed evidence of CGRM seeking explanation from DBKL and
MBSA regarding the disputed documents”. This is to explain why
the Company only charged the Claimant in 2007 and not
earlier.
(i)
It is undisputed that the Claimant is the only officer who is
responsible for applying and obtaining for permits and licenses
[23]
from DBKL and MBSA for the various events mentioned in the
said Charges (a) and (b) respectively.
(j)
The Claimant took issue as to whom the bills were actually
submitted to. Eventhough the said charge makes reference that
the said false bills were submitted to Encik Azizan Md Dewa,
Amirudin Ismail and Aziz Badri but there is no doubt from the
said charge that they were all from the Account or Finance
Department and this has not been denied in SOC. Therefore
even if they did not testify at the trial, it is not fatal because the
detail comparison between the “Bill amount submitted” by the
Claimant to the Company and the “actual cost” incurred by the
Company is sufficient enough to establish the essential
ingredient of the said charge as to whether the bill amount
submitted were false.
In my view based on the above analysis the Claimant’s said
preliminary matter that Charge (a) is invalid is certainly without
merit. I therefore rule that the whole of charge (a) is valid.
[24]
Charge (b)
(ii)
Charge (b) contains the following key particulars:(a)
the time period of the offence being “September 2006 to
November 2006”;
(b)
the nature of the offence being “Claimant’s submission of two
(2) false licenses: for the specific events 1 and 2 mentioned
therein;
(c)
as a matter of fact page 59 of COB-1 specifically states after the
said Charge (b) as follows:“Attached under Appendix C1 and C2 are the two (2) false
licenses you had submitted against the actual licenses given to
the Company by DBKL.
Cumulatively (i.e. Charge (a) and Charge (b)) you are alleged
to have fraudently claimed from the Company a total sum of
RM44,220.00 from these 7 bills and licenses when the actual
cost only amounted to RM13,720.00. This represent an access
of RM30,500.00 in false claims you collected from the
Company”. [Emphasis Added]
(d)
the Claimant never denied the existence and attachment of
Appendix C1 and C2 being two (2) false licenses. Neither did
[25]
the Claimant rebut their existence at the D.I. and their existence
were not also not denied at the hearing proper as well;
(e)
The D.I. panel in their Panel Findings found at page 142 of
COB-1 at item 4 had stated “The panel was also informed of the
audit process that led to the charges only being levelled against her in
2007 and understand that although the charges levelled against her
took place in 2005 and 2006, this was due to the scheduled Internal
Audit review by CGRM on Special Projects. The Prosecutor also
showed evidence of CGRM seeking explanation from DBKL and
MBSA regarding the disputed documents”. This is to explain why
the Company only charged the Claimant in 2007.
(f)
The Claimant questioned on the issue as to whom the Claimant
had submitted the 2 false licenses to. Eventhough the said
Charge (b) makes reference that the said 2 false licenses for the
2 events mentioned therein were submitted to En. Azizan Md
Dewa, En. Amiruddin Ismail and En. Mohd Azri Badri but she
has not denied this fact in her SOC. They were all from the
[26]
Finance Department except En. Mohd Azri who is from Brand
Management Group.
(g)
It is undisputed that the Claimant is the only officer who is
responsible for applying and obtaining for permits and licenses
from DBKL and MBSA for the various events mentioned in the
said Charges (a) and (b) respectively.
In my view based on the above analysis the Claimant’s said
preliminary matter that Charge (b) invalid is certainly without merit.
I therefore rule that on the whole Charge (b) is valid.
Since the Company had conducted a D.I. prior to the Claimant’s
dismissal it is therefore necessary to examine whether the Company
had complied with the rules of natural justice when it conducted the
D.I.
(ii)
Whether the D.I. held by the Company was prima facie valid and the
notes of the D.I. are accurate?
[27]
The law is that in cases where D.I. had been conducted the Court should
first consider whether or not the D.I. was valid and secondly, whether the
D.I. notes are accurate. Bumiputra Commerce Bank Bhd v Mahkamah
Perusahaan & Anor [2004] 7 CLJ (“Bumiputra Commerce Bank Berhad”).
Furthermore in an unreported judgment in the case of Plaintree Wood
Products Sdn. Bhd v Industrial Courtland & Anor (Case No. R1-25-42 of
2005). His Lordship Raus Sharif J (as he then was) clarified the principle in
the case of Bumiputra Commerce Bank Berhad whereby he stated “Di
dalam kes Bumiputra Commerce Bank Berhad, apa yang saya putuskan adalah
mengenai kegagalan Mahkamah Perusahaan untuk mengambilkira nota
keterangan domestic inquiry yang telah dikemukakan sebagai keterangan.
Mahkamah Perusahaan di dalam kes itu tidak langsung merujuk kepada nota
keterangan domestic inquiry dalam membuat penilaian fakta dan kegagalan itu
telah saya putuskan sebagai satu kesilapan undang-undang. Pada saya responden
kedua adalah bebas untuk membentangkan kesnya ini dan untuk menyokong
dakwaan bahawa beliau telah dibuang kerja tanpa alasan yang munasabah. Di
pihak pemohon pula, jika terdapat keterangan mengenai domestic inquiry,
terpulanglah kepada pemohon untuk mengemukakannya.
[28]
Tugas Mahkamah
Perusahaan
ialah
untuk
membuat
keputusan
berpandukan
keseluruhan
keterangan yang dikemukakan melalui keterangan-kegerangan saksi yang
dikemukakan oleh kedua-dua pihak. Sudah tentu Mahkamah Perusahaan tidak
semata-mata terikat kepada nota prosiding di dalam domestic inquiry”.
[Emphasis Added]
In the instant case, eventhough the D.I. was conducted but there is no
adverse allegation of a defective D.I. having been conducted except for the
allegation of the charges being defective in the SOC. This has been dealt
with earlier by the Court.
In my view, the D.I. was conducted professionally and ample opportunity
was given for the Claimant to defend herself. In this sense the principle of
natural justice had been complied.
Nevertheless this Court will bear in mind the Court of Appeal decision in
Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan & Other Appeals
[1997] 1 CLJ 665 (“Hong Leong Equipment”) where the Court held that:[29]
“The fact that an employer has conducted a domestic inquiry against his
workmen is, in my judgment, an entirely irrelevant consideration to the
issue whether the latter had been dismissed without just cause or excuse.
The findings of a domestic inquiry are not binding upon the Industrial
Court which rehears the matter afresh. However, it may take into account
the fact that a domestic inquiry had been held when determining whether the
particular workmen was justly dismissed.
Were it otherwise, the guilty or innocence of a workman, upon a charge of
misconduct would be decided not by the Industrial Court, but the employer
himself. That, with all respect, is not the purpose for which Parliament
went through the elaborate process of legislating the Act and setting up
special machinery for the vindication of the right of workmen”.
This Court would therefore take into account the fact that a D.I. had been
held, as well as the evidence at the trial proper as a whole in determining
whether the Claimant had been dismissed with or without just cause or
excuse.
Let me now deal with the charges for which the Claimant was found guilty
and dismissed.
[30]
Charge (a)
Charge (a) item 1 : Karnival Jom Heboh - Bukit Jalil 2006
Charge (a) item 1 in respect of the event Karnival Jom Heboh - Bukit Jalil
2006 specifically states that the Bill amount submitted by the Claimant for
securing license for this event from DBKL was RM14,400.00 (page 22 of
COB-1) whereas the ‘actual cost’ incurred by the Company was only
RM100.00 (page 32 of COB-1). The question for determination is this.
Is the bill amount submitted by the Claimant of RM14,400.00 from DBKL
as shown at page 22 of COB-1 a false bill as compared to the bill at page
32 of COB-1 which shows that the actual cost is only RM100.00?
Let me reproduce the (a) the alleged document of false bill amount
submitted by
the Claimant for the sum of RM14,000.00 and (b) the
document containing the actual cost incurred for the sum of RM100.00.
[31]
The false bill at page 22 of COB-1
[32]
The ‘actual cost’ of bill at page 32 of COB-1
[33]
Evidence, Evaluation and Finding
This refers to Charge (a) item (1) for the event Karnival Jom Heboh – Bukit
Jalil 2006 where the Claimant was charged for submitting a false bill for the
sum of RM14,400.00. This bill is found at page 22 of COB-1, where it states
that the payment is for ‘Bayaran Khemah/Gerai Sementara dan Permit. This
amount was stated as payment for Khemah/Gerai Sementara of 144 x RM50
x 2 hari. The receipt indicated that this payment was for the period
02.09.2006 to 03.09.2006.
With regard to this payment of RM14,400.00 as shown on page 22 of
COB-1, the Court asked the Claimant the following questions after Q15 in
examination in chief:“Court: What proof that these documents show that DBKL has received
this payment. Any evidence of proof?
A:
I paid cash and there is ‘resit tunai’ at the resit/bil.
Court: Even you have taken the receipts, you have to prove that DBKL
received the money. There is no evidence in the documents to say it
is paid to DBKL on pages 20, 22, 23. The print of payment does
not appear on page 20 as having received by DBKL like that of
page 31.
[34]
A:
Now, having seen page 31 with the print, I see that pages 20, 22,
23 does not carry the print out. That is how bill 20, 22, 23 came
into existence.”
It is very clear that the Claimant was unable to show to this Court any
physical evidence of proof of payment to DBKL of the said sum on pages
20, 22, and 23.
As against this the Company produced page 32 of COB-1 which indicated
that the payment for this event was only RM100.00 that was received by
DBKL from TV3. The receipt showed payment for ‘Bayaran Khemah
Sementara, and the payment was RM50.00 x 2 hari. The period of the
function was from 02.09.2006 to 03.09.2006, which is the same period as
shown on the receipt submitted by the Claimant at page 22 of COB-1.
DBKL had confirmed in their reply at page 51 column (g) of COB-1 to the
query by TV3 that the payment charged by DBKL and received by DBKL
from TV3 was RM 100.00.
[35]
The Company submitted page 32 of COB-1 through COW-6 Puan Najati Bt.
Mohamad, who was employed as a Kerani Proses with DBKL. She
confirmed in her evidence in chief as follows:
“Q38.
Berkenaan dengan muka surat 22, sila rujuk kepada muka surat
Boleh puan sahkan adakah muka surat 22
atau muka surat 32 yang di keluarkan oleh
DBKL?
Saya sahkan muka surat 32 COB-1 di
keluarkan oleh DBKL. To a continuing question by this
32.
A:
Honourable Court, the witness answered as follows:
Q40(Court). Boleh terangkan proses untuk buat semakan sampai membuat
bayaran?
A:
Saya menyediakan muka surat 32 COB-1 selepas surat di muka
surat 6 COB-3 telah di hantar kepada pemohon (Claimant) untuk
memberitahu adakah bayaran dan buat bayaran. Selepas itu, apabila muka surat 32 di sediakan oleh saya, pemohon datang ke pejabat
DBKL, jumpa saya dan ambil muka surat 32 untuk membuat bayaran di kaunter kewangan. Selepas bayaran, Claimant kembali kepada saya dan untuk menyerahkan salinan resit bayaran. Saya beri
resit asal kepada pemohon dan saya simpan salinan pembayaran
dalam fail.
Q41. Berkenaan dengan muka surat 32, siapa dari
TV3 yang buat permohonan?
[36]
A:
Mengikut borang di muka surat 60 COB-2 dan
covering letter dari TV 3 bertarikh 31.07.2006 it
was Suzana.
Q43.
Where is the surat kelulusan?
A:
Page 6 of COB-3.”
Based on the evidence stated above the evidence of COW-6 clearly
indicated that the amount paid was RM100.00, and that this amount was
paid by the Claimant who after payment went and saw COW-6 and
showed her the proof of payment before being given the original. The
document produced in Court as page 32 was taken from the file of DBKL
and produced in Court during the hearing through COW-6. This clearly
demonstrates that page 22 of COB-1 which was produced by the Claimant
is a false document as charged by the Company. Page 22 of COB-1 does not
contain the machine print out just like that of page 32 of COB-1. In the
circumstances of the case the Court is of the considered view that the bill
submitted by the Claimant at page 22 of COB-1 is a false bill indeed.
Accordingly, the Company has proven Charges (a) item 1 on balance of
probability.
[37]
Charge (a) item 2: Karnival Jom Heboh - Bukit Jalil, 2006
The question for determination in respect of this charge is this.
Is the submission of the purported bill amount of RM5,000.00 from DBKL
as shown at page 23 of COB-1 as payment for Bayaran Duti Indemniti is
false?
Charge (a) item 2 in respect of the event of Karnival Jom Heboh – Bukit Jalil
2006 it specifically states that the Bill amount submitted by the Claimant
was RM5,000.00 purportedly from DBKL.
The Claimant had produced at page 23 of COB-1 of an alleged false bill for
RM5,000.00 as payment for Bayaran Duti Indemniti. This was for the same
function for the period 02.29.2006 to 03.09.2006. In reply to the query from
the Company, DBKL confirmed at page 51 under column (h) that there was
no payment involved for indemnity. In fact the Company had produced the
Indemnity letter at page 11 of COB-3 which the Claimant had signed and it
does not indicate payment involved.
In this regard let me reproduce the documents at pages 23 and 51 of COB-1
for ease of reference.
[38]
The false bill at page 23 of COB-1
[39]
The'actual cost' of bill at page 51 of COB-1
[40]
COW-6 Puan Najati had confirmed in her examination in chief with regard
to page 23 of COB-1 as follows:“Q23 Sila rujuk kepada mukasurat 22 dan 23 of COB-1. Adakah bil-bil ini
yang berjumlah RM17,280.00 dan RM5,000.00 seterusnya
dikeluarkan oleh Jabatan Pelesenan DBKL?
A: Tidak. Sebarang bil yang dikeluarkan oleh
DBKL, mesti ada catatan mesin sebagaimana
yang telah dijelaskan awal tadi. Tambahan pula,
jika kita rujuk mukasurat 23, bayaran duti
indemniti yang berjumlah RM5,000.00 telah
tertera dimana tidak pernah dicajkan oleh
Jabatan Pelesenan DBKL.” [Emphasis Added]
Another interesting point to note is that this indemnity letter at page 11 of
COB-3 is dated 01.09.2006. This date is the same date as that of payment
made to DBKL which is at page 32 of COB-1, and this clearly indicates that
the Claimant was at DBKL to sign the indemnity form. In all probability the
Claimant would have made the payment at DBKL on the same date for
which DBKL had produced the counter foil to Court, which is at page 32 of
COB-1.
[41]
When the Court inquired as to whether there was any physical evidence of
payment being made by the Claimant with regard to page 23 of COB-1, the
claimant was unable to produce any such evidence. Puan Sarah the
Pembantu Tadbir Kanan (COW-5) had confirmed in her evidence in chief in
answer to Question 7 at column (h) at page 51 of COB-1 that no payment
was involved for duty indemnity.
Based on the evidence stated above the Court is of the considered view that
the Company’s Counsel has convincingly established that the Claimant has
submitted a false bill amount of RM5,000.00 which is found at page 23 of
COB-1 since evidence clearly shows that there was no payment for duty
indemnity. Hence, it is my considered view that Charge (a) item 2 has been
made out by the Company.
Charge (a) item 3: Junior Sports Carnival – Bukit Jalil 2006
The question for determination is this.
Is the submission of the purported bill for the amount of RM1,200.00 at
page 25 of COB-1 as payment for Bayaran Binaan Sementara di Wilayah
Persekutuan a false bill?
[42]
Charge (a) item 3 in respect of the event Junior Sports Carnival - Bukit Jalil
2006 specifically states that the Bill amount submitted by the Claimant for
securing license for this event from DBKL was RM1,200.00 which was paid
for Bayaran Binaan Sementara Di Wilayah Persekutuan (page 25 of COB-1).
The event was held from 18.11.2006 to 19.11.2006. A careful examination of
this receipt shows that it did not have the machine print out acknowledging payment by DBKL. Neither did it indicate the date of payment.
The Company however produced page 36 of COB-1 through COW-6 Puan
Najati, who confirmed in her examination in chief at Q33 that the payment
for this project only cost RM100.00. This receipt had the machine print
acknowledging payment of RM100.00 from DBKL and the date of payment
is shown as 17.11.2006, which was one day before the event took place. At
this stage it is relevant to reproduce page 25 of COB-1 which is the false bill
amount of RM1,200.00 and page 36 of COB-1 which is the actual cost
incurred for the sum of RM100.00.
[43]
The false bill at page 25 of COB-1
[44]
The ‘actual cost’ of bill at page 36 of COB-1
[45]
Puan Najati’s evidence was further confirmed by DBKL in their letter to the
Company, at page 51 of COB-1, where at paragraph (j) they confirmed that
the payment involved was only RM100.00 and not RM1200.00 as claimed
by the Claimant. Puan Sarah COW-5 had confirmed in her evidence in
chief in answer to Q7 at column (j) at page 51 of COB-1 that the actual
payment was only RM100.00.
The Company’s Counsel has therefore cogently and convincingly
submitted that based on concrete evidence that the bill submitted by the
Claimant at page 25 of COB-1 is a false bill amount of RM1,200.00 as there
is no machine print out from DBKL like that appearing at page 36 of COB-1
where the payment for this payment was only RM100.00. Hence, it is my
considered view that based on the clear evidence adduced before this
Court Charge (a) item 3 has been made out by the Company against the
Claimant.
[46]
Charge (a) item 4 : Karnival Sure Heboh – Shah Alam 2005
The question for determination is this.
Is the submission of the purported bill amount of RM9,100.00 at page 14 of
COB-1 as payment for Bayaran Karnival TV3 Sureheboh a false bill?
Charge (a) (4) in respect of the event for Karnival Sure Heboh – Shah Alam
2005 specifically states that the Bill amount submitted by the Claimant for
securing license and permit for this event from MBSA was RM9,100.00
(page 14 of COB-1). When the Court asked for physical evidence of having
paid that sum to MBSA, she was unable to show such evidence. As against
this bill, the Company produced COB-1 page 14(a) and COB-1 page 14(b);
COB-1 page 26(a) and page 9 of COB-1 to show that the cost for this event
was only RM6,900.00. At this stage it is relevant to reproduce page 14 of
COB-1 which is the false bill amount of RM9,100.00 and page 14(a) and
14(b) of COB-1; and page 26(a) and page 9 of COB-1 which shows the actual cost incurred for the sum of RM6,900.00.
[47]
The false bill at page 14 , 14(a) and 14(b) of COB-1
[48]
[49]
[50]
The ‘actual cost’ of bill at page 26(a) and 9 of COB-1
[51]
[52]
Encik
Rosli
Bin
Bakar
(COW-7),
the
Pengarah
Pelesenan
dan
Penguatkuasaan gave the following evidence via his witness statement
COWS- 7:
“Q6. Could you elaborate on the matter?
A:
The first issue is for permit hiburan which is at page 14 of COB-1 and
page 15 of COB1 which specifies the various fees to be paid for
various items. The bill shows a figure of RM9,100.00 for 2005 and
RM12,020.00 for 2006”.
Q7.
Is that correct?
A:
No, that is not correct. If I can refer to page 39 of COB-1, that is my
reply to TV3, where I have stated that the actual amount incurred
totals RM6900.00 for 2005 (page 26 and 27 of COB-1) and for 2006
it is RM 6460.00 (Page 28 of COB-1). I wish to state here that pages
14 and 15 of COB-1 were not issued by my department as the bar
code is different. The bar code we use can be seen in this sample that I
have with me now. Once payment is made, there will be a bar code at
the bottom which reflects the amount in a bar code which is missing
from pages 14 and 15 of COB-1. The top bar code is for the account
number for payment. That is also different at page 47 of COB-1.
The second issue is in relation to a bill for the amount of RM
12,020.00 which is at page 15 of COB-1. This amount as shown on
page 15 is different from out actual bill which is at page 13 which
shows the amount paid as RM6,460.00. I also confirm that page 15 of
COB-1 is not issued by our Department for the same reasons as stated
for the earlier bill. The other thing which I wish to state is the license
is only issued after the bill is paid.”
[53]
Pages 14 (a), 14 (c), and pages 15(a), 15(c) were produced by this witness
and Puan Zurina (COW-12) to show how the actual bill looks with all the
actual bar code on these documents, which as COW-7 explained was so
different from the documents produced by the Claimant at pages 14 and 15
of COB-1, which COW-7 confirmed was not issued by his Department.
All actual payments made were confirmed by Cik Zurina Bte. Azmi
(COW-12) the witness from MBSA, who referred to pages 26 and 27 of
COB-1 which reflects the actual amount to be paid was RM 6,900.00 which
included the payment of cagaran of RM5,000.00. She explained in Q4 in her
examination in chief the steps taken to issue the bill. In the instant case at
step 2 she said she will prepare the surat Kelulusan for Permit Hiburan
which she confirmed to be at pages 26 and 27 of COB-1. Step 3 would be
for the Claimant to come to MBSA to make payment. Step 4 is for the
witness to release the Bil Pelbagai Hiburan and the Bil Cagaran. Step 5 is
for the Claimant return to her after having made the payment to show
proof of that payment.
[54]
If we refer to COB-1 page 14(b) which is the payment resit for Permit
Hiburan, and COB-1 page 26(a) which is payment for Cagaran, the amount
paid in the sum of RM1,900.00 and RM5000.00 respectively was on
08.12.2005 which also tallies with the amount stated at page 26 of COB-1.
The temporary license issued for this purpose is at page 9 of COB-1, which
again carries the same date as 08.12.2005 and the amount of RM6,900.00.
COW-12 confirmed in Q15 of her evidence in chief that this license at page
9 is issued to the claimant after the claimant had made the payment for the
two bills.
It is also important to note that COW-12 clarified in Q18 of her examination
in chief as follows:
“Q18. Why did you say you only issued page 14(a) and not page 14 of
COB-1?
A: At page 14 the spelling for the word ‘Perlesenan’ is wrong as compared to the right spelling at page 14(a)”.
The barcode at page 14 when compared to 14(a) is different because
MBSA produces only the pattern as shown on page 14(a) and not
page 14.
Thirdly, the number akaun at page 14 is different which belongs to
another customer whereas at page 14(a) it is mentioned as TV3 which
is correct.
[55]
Fourthly, the No. Resit at page 14 of COB-1 is different as compared
to no. bill at page 14(a) of COB 1. The term No. Bil at page 14(a) is
what MBSA produces.
Fifthly, the term ‘tarikh bayaran’ on page 14 is different. The term
tarikh bil at page 14(a) is what MBSA produces.
Sixthly, the butiran bil at page 14 is different as compared to 14(a), as
the code numbers are different. Page 14 code number is 71800 and
14(a) is 71801. The correct code is 71801.
Seventhly, at page 14, the butiran bil 2 and 3 tiada di muka surat
14(a). At page 14, the description is not spread over as what appears
at page 14(a).
Eightly, page 14 the jumlah RM9,100 compared to page 14(a) yang
saya buat ialah RM1,900.00 bersama dengan barcode whereas at page
14 no barcode, Page 14 (a) is from MBSA.”
COW-12 had also given evidence in Court that she gave the letter at pages
26 and 27 to the claimant when she came to make payment, and if one
looks at the date of the letter at page 26 of COB-1 it states as 8 Dis. 2005,
and if one looks at COB-1 page 14(a), page 14(b) and page 26(a), the date of
payment is shown as 08.12.2006. However, the Claimant has denied receipt
of this letter from MBSA, for reasons best known to herself.
[56]
Evidence, Evaluation and Finding
All the evidence given by COW-12 was not challenged in cross examination
of this witness, which would infer that this witness was telling the truth in
Court as against the claimant’s bare denial of not having received the
documents from MBSA.
COW-12 was also referred to the refund of cagaran and stated the
following in her evidence in chief:
“Q28, Did MBSA refund this bil cagaran for 2005 and 2006?
A:
For 2005 only”.
As to the question of why the bil cagaran was issued under the claimant’s
name this witness stated the following in her examination in chief:
“Q26. Refer to pages COB 1 page 14(d) and COB 1 page 15 (d). Both are for
cagaran for 2005 & 2006. Why is the bills issued under Suzana
Zakaria’s name?
A:
Suzana minta saya key in nama dia di Bil Cagaran sebab for refund.”
The Claimant was shown COB-1 page 151 which was an application for
refund dated 07.12.2006 and asked this question in cross examination:
[57]
“Q37.Look at the document dated 07.12.2006 where you have signed. It that
your name and signature?
A:
It is my name. The signature looks like my signature.”
However, this document was in the MBSA file, and COW-12 had confirmed
in Court that a refund had been made to the Claimant. This is further
reinforced by the document COB-1 page 26(b) which is a document from
MBSA indicating that a refund had been made in the claimant’s name vide
voucher number V200700413 for the amount of RM5,000.00.
As for the claim by the Claimant that the signature on page 151 looks like
her signature, meaning she was not willing to confirm in Court that it was
her signature, one need not be an expert to know that the signature of the
Claimant on COB-1 page 151 is the same as that found on page 46 of COB-1
which is the reply of the claimant to the show cause letter as well as on
pages 58 and 65 to quote a few examples. In my considered view the
Claimant was not being truthful in Court when she did not want to
confirm that it was her signature at page 151 of COB-1. Documents show
that she had applied for the refund and had received the refund from
[58]
MBSA as confirmed by COW-12. I believe the evidence of COW-12 when
she testified that the Claimant had applied for the refund vide document at
page 151 of COB-1 and had received the refund.
In this regard the
Claimant is not a truthful witness.
Based on the above analysis of the evidence adduced, it is my considered
view that the Company had established that Bill amount submitted for the
sum of RM9,100.00 as payment for holding the Karnival Sure Heboh – Shah
Alam was indeed false. The actual amount is only RM6,900.00 which has
been proven by the Company on the balance of probability. I have no
difficulty in believing the Company’s evidence in this regard.
Charge (a) item 5 : Karnival Jom Heboh – Shah Alam 2006
The question for determination in respect of this charge is this.
Is the submission of the purported bill amount of RM12,020.00 by the
Claimant under Charge (a) item 5 as payment for Bayaran Karnival TV3
Jom Heboh false?
[59]
Charge (a) item 5 in respect of the event of Karnival Jom Heboh – Shah
Alam 2006 specifically states that the Bill amount submitted by the
Claimant for securing the permit and license for this event from MBSA was
RM12,020.00 (page 15 of COB-1). A careful examination of this document
shows that it did not have any machine print out on it as evidence of payment. When the Court asked the Claimant for physical evidence of payment made to MBSA for this amount, she was unable to produce any evidence to substantiate her claim. On the other hand the Company produced
COB-1 pages 15(a) and 15(b); page 28(a) and page 13 of COB-1 to show that
the actual cost incurred for this event was only RM 6,460.00. At this stage
it is relevant to reproduce page 15 of COB-1 which is the false bill amount
of RM12,020.00 and also page 15(a) and 15(b) pages 28(a) and page 13 of
COB-1 which shows the actual cost incurred for the sum of RM6,460.00.
[60]
The false bill at page 15, (15(a) and 15(b) of COB-1
[61]
[62]
[63]
The ‘actual cost’ of the bill at page 28 and 13 of COB-1
[64]
[65]
The Court refers to the evidence given by COW-7 for Charge (a) item 4 at
paragraph 19 of this submission and adopts the same evidence for this
Charge as well. COW-7 further explained the procedure of payment at Q10
of his evidence in chief as follows:“Q10.What is the procedure that MBSA has when a Company request for a
license for entertainment?
A:
The first action by the applicant company is to fill in a special form
for entertainment – COB-6, page 1. We will process the application
and include the fees involved.
After that this application will be tabled at a special meeting within
my Department for approval – COB-6 page 2.
Once approved, we will prepare the necessary bill and approval letter
to the applicant – pages 26, 27, 28 and 29 of COB-1. Then notify the
applicant to pay the fee together with the bill, or we will call the
applicant to collect and pay the bill and after the payment of the bill,
the license is issued – pages 9 and 13 of COB-1.
Q11. Is the system of billing and bar code the same now as it was in 2006?
Q12. When the payment is made based on the bill, the bill issued by MBSA,
is it directed to the applicant or is it posted to the applicant?
A:
When the bill is paid, and is printed on the bill as paid, we will give
the original copy of the bill to the applicant directly. Second copy is
kept by the Accounts Department and the 3 rd copy is kept by my Department in the file.
Q13. Pages 9 and 13 of COB 1, who is the person the document is addressed
to?
A:
It was addressed to Suzana Zakaria of TV3.”
[66]
As directed by the Court the Company produced the counterfoil for both
sums. In this regard, this witness produced the documents which are at
pages 14(a), 14(b), 14(d), 14(e), 15(a), 15(b), 15(d), 26(a), and page 28(a) of
COB-1, to confirm that all the payment made to MBSA, tallies with the
payment sum indicated on pages 9 and 13 of COB-1, and on pages 26 to 29
of COB-1.
In cross examination COW 7 was asked:
“Q1. I refer to page 39 of COB1. This is your reply to the Company’s
inquiry in respect of lesen hiburan for 2005 and 2006. Would you
agree with me that in your reply you did not confirm that pages 14
and 15 which was inquired by TV3 were false?
A.
In my letter it is stated as ‘tidak benar’. That is what I have stated.
COURT: Is the Company letter here?
A.
Yes, at page 47.”
This witness also gave evidence in examination in chief on the bar code:
“Q19. What is the purpose of the bar code?
A.
The bar code is when the claimant makes payment at the counter, the
counter payment clerk will scan the bar code and issue a payment receipt.
Q20. So, this Bil Pelbgai (14(a) of COB-1) will be considered as a receipt?
[67]
A:
No.
Q21 (By Court) When will the document 14(a) be considered as receipt of
payment?
A.
After they have made full payment at the counter based on the sum as
stated in 14(a).
Q22. When the payment is made at the counter, would there by an official
receipt issued by the counter clerk?
A:
Yes.
Q23. (Document introduced to witness) Please let us know what is this
receipt for) Counterfoil copy shown to Court.
A:
This receipt is for payment for Permit Hiburan Sementara for STMB
(TV3)
Document marked as COB 1 page 14(b).
Q24. Is the amount the same as reflected on page 14(b) the same as in page
14(a)?
A:
Yes.
Q25. Refer to page 26 of COB-1. (Document introduced for cagaran of
RM5,000.00 as COB 1 page 26(a)). What is this document?
A:
A payment receipt for the payment of Cagaran for 2005 for
RM5,000.00.
Q26. Refer to page 26 (a) of COB-1. Under whose name the receipt is
issued?
A:
Under Suzana Zakaria.
Q27. (Document introduced as COB-1 page 26(b).). What is this
document?
[68]
A:
This document is our record of transaction regarding the refund for
the cagaran amount of RM5,000.00 to the Claimant’s company by
way of cheque.”
COW-12 gave evidence in Court that she gave pages 28 and 29 of COB-1 to
the Claimant when she came to make payment, and had also indicated in
her hand written note on page 28 of COB-1 that the Claimant had made
payment on 07.12.2006. She had also made a note on page 29 of COB-1 that
the document was received by hand by the Claimant on 07.12.2006. When
we compare this with COB-1 page 15(a) which is the Bil Pelbagai the date is
7.12.2006. When we look at COB 1 page 15(b) which is payment for Permit
Hiburan Sementara which amount is RM1,460.00 and COB-1 page 28 (a)
which is the payment for cagaran of RM5,000.00, the date of payment is
07.12.2006. Page 13 of COB-1 is the temporary license given to TV3 for this
event, and the amount stated there is RM6,460.00 which tallies with all the
other documents produced by the Company.
It is the Company’s humble submission that the date and the payment
made tallies with the sum shown on page 28 of COB-1 which COW-12 had
[69]
given to the Claimant. However, when it was put to the Claimant that this
document at pages 28 and 29 of COB-1 was given to her, there was a bare
denial from her that she did not receive it, yet she was unable to show any
proof that payment was made on the document that she produced at page
15 of COB-1. In my considered view based on the evidence the Company
has proved Charge (a) item 5 on the balance of probability.
Charge (b) item 1 : Karnival Jom Heboh – Bukit Jalil 2006
The question for determination in respect of this charge is this.
Is the submission of the purported amount of RM1,000.00 as shown at
page 20 of COB-1 being payment for securing license for holding this event
false?
Charge (b) item 1 in respect of the event of Karnival Jom Heboh – Bukit Jalil
2006 specifically states the Bill amount submitted by the Claimant for the
sum of RM1,000.00 as shown at page 20 of COB-1 is based on false
license (page 20 of COB-1). A careful examination of this receipt shows that
it did not have the machine print acknowledging payment from DBKL.
Neither did it indicate the date of payment.
[70]
The Company produced page 31 of COB-1 to show that the actual payment
was only RM120.00 for this event. The document at page 31 had a machine
print indicating payment had been made on 01.09.2006, which is the same
date as the indemnity form that was signed by the Claimant on 01.09.2006
which is found at page 11 of COB-3. However, the claim submitted by the
Claimant did not have any such machine print to indicate that payment
had been made to DBKL. When asked by Court for any physical evidence
of payment, the Claimant was unable to show any such evidence. At this
stage it is relevant to reproduce page 20 of COB-1 which is the false license
amount of RM1,000.00 and page 31 of COB-1 which is the actual license
amount for the sum of RM120.00.
[71]
The false license amount at page 20 of COB-1
[72]
The ‘actual license amount’ at page 31 of COB-1
[73]
Moreover, if we compare page 20 with page 31 of COB-1, the signatories
are different. Page 20 is purportedly signed on behalf of the Datuk Bandar
Kuala Lumpur, whereas page 31 shows that it was signed by the Pengarah
Jabatan Pelesenan. COW-6 confirmed that all documents issued from her
Department would be signed by the person from Jabatan Pelesenan, and
not from the Datuk Bandar’s Office. I have no hesitation based on the above
mentioned evidence that page 20 of COB-1 was a false entertainment
license for the amount of RM1,000.00 to cheat the Company.
The Company would like to refer to page 21 of COB-1 which the Claimant
claimed was given to her by her Superior at the DBKL Officer, (Re Q15 in
cross examination of Claimant with regard to Step 7) In this letter the cost
of the items were listed as follows:
2.1.
Duti Indemniti of RM5,000.00 which refers to page 23 of
COB-1;
2.2 . Lesen Hiburan of RM 1,000.00 which refers to page 20 of
COB-1;
[74]
2.3.
Permit Khemah/Gerai Sementara of RM 2,880.00 which refers to
page 22 of COB-1; and
2.4.
Wang Cagaran Lesen of RM 14,400.00 which refers to page 22 of
COB-1.
The Claimant claimed in her examination in chief that she had shown this
letter to her superior who had accompanied her to DBKL. However,
COW-8, Encik Zulkifli who is the Penolong Pengarah Kanan with DBKL,
whom the Claimant claimed had signed the letter, gave his evidence in
chief in Court as follows:
“Q5. Sila rujuk mukasurat 21 di COB-1. Adakah surat ini dikeluarkan oleh
anda?
A:
Tidak.
Q6.
Adakah surat ini ditandatangani oleh anda?
A:
Tidak. Tandatangan saya adalah seperti mana pada mukasurat 6
supplementary bundle (COB-3).”
This witness was also taken through both the documents at page 21 of
COB-1 and page 6 of COB-3 and he confirmed that all the information
reflected on page 6 is correct when compared to page 21 of COB-1. COW-7
[75]
Puan Sarah had also confirmed in her evidence in chief in reply to Q7,
where at column (f) she confirmed that the payment as in the file at DBKL
was for the amount of RM120.00.
In my view therefore the Claimant was not a truthful witness in Court
when she said that this document was given to her by her superior at
DBKL, as this document was not issued by DBKL as confirmed by COW-8.
In the circumstances of the case, it would not be possible for her superior to
show a document which was not issued by DBKL.
What is relevant to note is that there was no cross examination of COW-8
by the claimant on the evidence given by this witness in Court, meaning
that this witness’s evidence remains unrebutted.
In my considered view
based on the totality of the evidence, the Company had made out Charge
(b) item 1 against the Claimant.
[76]
Charge (b) item 2 : Junior Sports Carnival – Bukit Jalil 2006
The question for determination in respect of this charge is this.
Is the submission of the purported amount of RM1,500.00 as shown at
page 24 of COB-1 being payment for securing license for holding this event
false?
Charge (b) item 2 in respect of the event of Junior Sports Carnival – Bukit
Jalil 2006 specifically states that the license amount submitted by the
Claimant for the sum of RM1,500.00 as shown at page 24 for this event as
payment for “Lesen untuk membuka Tempat Hiburan and Lesen Hiburan”
is based on a false license. This document did not carry any machine print
to show that this amount had been received by DBKL to indicate payment.
This document was also purportedly signed on behalf of Datuk Bandar
Kuala Lumpur. The Company on the other hand produced page 35 of
COB-1 to show that the actual payment made for this event was only
RM40.00. This was further confirmed by DBKL in their letter of 17.07.2007,
where at page 51 of COB-1 item (i) they stated that the payment received
by DBKL from TV3 was RM40.00. It is also pertinent to note that page 35
of COB-1,
signed
by
the Pengarah
[77]
Jabatan Pelesenan, is from the
department that issues the licenses, whereas the document submitted by
the Claimant at page 24 of COB-1 shows that it was signed on behalf of
Datuk Bandar Kuala Lumpur. At this stage it is relevant to reproduce page
24 of COB-1 which is the false license amount and also page 35 of COB-1
which is the actual license amount.
[78]
The false license amount at page 24 of COB-1
[79]
The ‘actual license amount’ at page 35 of COB-1
[80]
COW-5 Puan Sarah had confirmed in her examination in chief in answer to
Q7, she replied at (i) “Lesen yang dikemukakan oleh TV3 adalah sebanyak
RM1,500.00. Semakan dari Jabatan Pelesenan DBKL menunjukkan pembayaran
yang dibuat adalah sebanyak RM40.00 (di mukasurat 13 COB-3.)”.
Page 13 of COB-3 is the same as page 35 of COB-1 which reflects the
amount of RM40.00 as having been paid by TV3, for which the machine
print is shown on page 35 of COB-1. COW-6, Puan Najati confirmed this
evidence in her witness statement at Q25 where she confirmed that the
payment made was RM40.00.
In my considered view based on evidence the Company had established
Charge (b) item 2 against the Claimant. I am convinced based on evidence
that the Claimant had submitted false bill amounts and obtained excessive
amount which is over and above the required amount to paid to DBKL and
MBSA for the licenses and permits for the said events mentioned in
Charges (a) and (b).
[81]
Principles on honesty and integrity must be complied by employees in
an organisation
As a matter of law, submission of false bills under charge (a) and
submission of false licenses under charge (b) are very serious misconducts
that cannot be condoned in any organisation.
It basically amounts to
cheating the Company. These are the following decided cases that support
principles relating to honesty and maintenance of integrity among
employees in an organisation.
B.R. Ghaiye in his book entitled “Misconduct In Employment” at page 41
stated as follows:“If a servant is incompetent and does not discharge his duties with that
degree of skill and tact ordinarily expected of him in the branch in which he
is employed and which has been expressly or impliedly promised, he
commits a breach of legal duty and is liable to be dismissed. The failure to
afford the requisite skill agreed expressly or impliedly proves his breach of
legal duties and amounts to misconduct.”
OP Malhotra in “The Law of Industrial Disputes” Sixth Edition at page
1167 has clearly stated the principle in relation to dishonest behavior:“Dishonesty by lying orally is as much a misconduct as making any record
or document which intentionally makes a false statement. For instance, the
[82]
case of making false entries in the official records, certifying receipts of more
than what has, in fact been received or certifying receipts of goods which
never were received at all, will constitute acts of dishonesty or fraud.”
In the case of Federal Auto Cars Sdn. Bhd v Roslan Mustapha (Award 544
of 2000) where the Court held as follows:“The obligations pertaining to trust and confidence are reciprocal. An
employee who expects his employer to honour this obligation has a reciprocal
duty to honour his employer's corresponding expectations in this regard.
The Court holds that the Claimant had by his conduct set out hereinbefore
undermined the relationship of trust and confidence which ought to exist
between an employer and his employee.”
In the case of Zulkifli Abdul Latif v. Sistem Penerbangan Malaysia Bhd
[2006] 3 ILR 1923 (Award 1483 of 2006) the Court held as follows:“Honesty and integrity are virtues that cannot be compromised in an
employee no matter what position he holds in an organization. In the
instant case, the claimant had, by his acts of misconduct, not only acted
against the interests of the company but compromised the said virtues and
further betrayed the trust and confidence reposed in him by the company.
Since the claimant's misconduct marred the trust and confidence that the
company had in him, the company was right in taking the said virtues into
account besieds the nature and gravity of the misconduct committed when
imposing the appropriate punishment on the claimant in the circumstances
of the instant case.....
…..In industrial jurisprudence, where an employer no longer has confidence
and trust in an employee by reason of the employee's dishonesty, the loss to
the bank in terms of monetary loss is not a predominant factor. The court
was of the view that honesty and integrity was amongst the key
characteristics that any employee should possess, no matter what form of
[83]
employment the employee was engaged in. The amount of monetary loss
though insignificant to the company was not the primary issue in this case.
The issue which the company found to be unacceptable was the fact that the
claimant had knowingly attempted to deceive the company”.
In the case of Petronas Carigali Sdn. Bhd v Kalik Hashim [2007] 3 ILR 7
where the Claimant who was employed as Clerk 1 with the company was
charged with committing fraud by falsifying the accounts of payment of
limousine charges.
falsifying.
He was charged on 22 accounts with regard to
The company subsequently dismissed him.
The Learned
Chairman upheld the dismissal of the Claimant.
Conclusion
After taking into account the totality of the evidence adduced by both
parties and bearing in mind s.30(5) of the Industrial Relations Act 1967 to
act accordingly to equity, good conscience and substantial merits of the
case without regard to technicalities and legal form and after applying the
principles in the above mentioned cases, this Court finds that the Company
has on the balance of probability established Charges (a) and (b) against the
Claimant.
[84]
Since Charges (a) and (b) are indeed very serious misconducts the
Company's action in dismissing the Claimant was a just punishment and
was with just cause or excuse. Accordingly, the Claimant's claim is hereby
dismissed.
HANDED DOWN AND DATED THIS DAY 20th OCTOBER 2014.
- signed (P IRUTHAYARAJ A/L D PAPPUSAMY)
PENGERUSI
MAHKAMAH PERUSAHAAN MALAYSIA
KUALA LUMPUR
[85]