HO FOOK KEONG v Ketua Pengarah Pertubuhan Keselamatan Sosial (BA-16A-1-05/2022)

[10] In this regard, this court made reference to Section 91 of the Employees’ Social Security Act 1969 which provides as reproduced below: “(1) Save as expressly provided in this section, no appeal shall lie from an order of the appellate boards set up by or under this Act.

An appeal shall lie to the High Court from an order of an appellate board set up by or under this Act if it involves a substantial question of law.

The period of limitation for an appeal under this section shall be sixty days from the date the order is made.” [11] This court made further reference to subregulations 17(1) and (2) of the Employees’ Social Security (Social Security Appellate Board Procedure) Regulations 1976 which states: “(1) There shall be no appeal to the High Court from an order of the Board unless the order involves a substantial question of law.

The notice of appeal shall be filed with the Board in Form 1 within sixty days from the day on which the order was made.” [Emphasis added] [12] A perusal of the provisions reproduced above clearly indicate that any appeal from the Social Security Appellate Board is required to be made by way of Form 1. There is nothing unclear about the provisions. [13] In this appeal, the appellant had filed his appeal by way of an originating summons. The provisions of the law as provided in the Employees’ Social Security Act 1969 and the Employees’ Social Security (Social Security Appellate Board Procedure) Regulations 1976 is unambigous. Any appeal shall be filed with the Social Security Appellate Board in Form 1. [14] The issue is whether the word ‘shall’ in subregulations 17(2) of the Employees’ Social Security (Social Security Appellate Board Procedure) Regulations 1976 is mandatory. [15] NS Bindra’s Interpretations of Statues [Tenth Edition] at page 999 stated: “Ordinarily, the word ‘shall’ and ‘must’ are mandatory and the word ‘may’ is directory although they are often used interchangeably. It is this use, without regard to the literal meaning, that generally makes it necessary for the courts to resort to construction in order to ascertain the real intention of the draftsman. Nevertheless, it is generally presumed that the words are intended to be used in their natural meaning.” [16] In the view of this court, based on Bindra (supra) the word “shall” in the regulations refers to a mandatory nature. In other words, there is no discretion. The appeal must be filed by way of Form 1. In this regard, this court agrees with the submission of the learned counsel for the respondent that the mode of this appeal is wrong and this appeal should be dismissed. [17] Nonetheless, even if this court were to consider the merits of the appeal, this court finds that the appellant in this case had failed to meet the statutory requirements. [18] Section 17 of the Employees’ Social Security Act 1969, states that an insured person suffering from invalidity as defined in section 16 shall, unless he has attained sixty years of age, be entitled to receive invalidity pension if he has completed a full or a reduced qualifying period. [19] The facts of this appeal disclose that the appellant was 60 years and 9 months at the time the appellant made the application for invalidity assistance/pension. This denotes that the appellant does not fall within the ambit of the provision of section 17 of the Employees’ Social Security Act 1969 as the appellant had exceeded the age threshold of 60 years. [See: Ketua Pengarah Pertubuhan Keselamatan Sosial v Barang Anak Embuyung [2020] 1 LNS 1052.] [20] Furthermore, in order to qualify for the invalidity assistance/pension, an insured person must have made 12 contributions, in accordance with section 17 and section 21 of the Employees’ Social Security Act

In this appeal, it is an undisputed fact that the appellant had made 11 contributions. This court is therefore satisfied that the appellant had failed to meet the statutory requirement of 12 contributions in order to be eligible for invalidity assistance/pension. [21] Nevertheless, subregulation 46(5) of the Employees' Social Security (General) Regulations 1971 allows a person above 60 years old to obtain invalidity assistance in certain circumstances. In order to be eligible for the invalidity assistance under subregulation 46(5), the person must be suffering from a morbid condition and that the person is not gainfully employed. [22] In this case, the appellant is not suffering a morbid condition which is a permanent condition. The appellant is gainfully employed being a practising advocate and solicitor. Hence, this court finds the appellant is not eligible for invalidity assistance/pension under subregulation 46(5) of Employees’ Social Security (General) Regulations 1971.

[23] In the upshot, this court is satisfied the mode of this appeal is wrong. The appeal lodged in this court was not in Form 1 as provided for in subregulation 17(2) of the Employees’ Social Security (Social Security Appellate Board Procedure) Regulations 1976. For this reason, this court finds this appeal to be incompetent. [24] This court therefore dismisses this appeal with no order as to costs. Date: 05 May 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For The Applicant: Ho Fook Keong, Ivan Tetuan Ho & Rakan-Rakan Advocates & Solicitors Suite 9-18, 9th Floor, Wisma Zelan, No. 1, Jalan Tasik Permaisuri 2, Bandar Tun Razak, 56000 Cheras, Kuala Lumpur. horakan28@gmail.com +6 03 9173 2150 For the Respondent: Muhammad Suhaib Bin Mohamed Ibrahim Tetuan Skrine Advocates & Solicitors Level 8, Wisma UOA Damansara, 50 Jalan Dungun, Damansara Height, 50490 Kuala Lumpur. md.suhaib@gmail.com +6 03 2081 3999