Ketua Pengarah, Pertubuhan Keselamatan Sosial v Jothy A/P Rajoo (BA-16-8-01/2020)

The appellant the Director General of the Social Security Organisation appealed against the decision of the Social Security Appellate Board (“Board”) in allowing the respondent to receive the survivor’s pension pursuant to section 17A of the Employees’ Social Security Act, 1969 (“ the Act”). Having heard the arguments I allowed the appeal by remitting the case to the Board to allow the Social Security Organisation (“Organisation”) to verify the document entitled Maklumat Caruman and for the Board to reconsider the appeal filed by the respondent. 2

On 15.9.2005 the insured (deceased)’s wife Madam Jothy a/p Rajoo (respondent) submitted a claim for survivor’s pension. The claim was rejected by the appellant on the ground that the deceased did not fulfil the qualifying period under subsection 17A(3) of the Act. The respondent thereafter on 17.7.2019 resubmitted the same and the claim was again rejected on the same ground. The respondent then filed an appeal to the Board on 1.8.2019.

On 16.8.2019 PERKESO Rawang requested the respondent to submit the deceased’s record of contribution to the Employees Provident Fund (“EPF”) (Maklumat Caruman) to ascertain the number of monthly contributions made for the purposes of subsection 17A(3) of the Act. A reminder dated 3.9.2019 was sent to the respondent and none was forthcoming.

During the proceedings before the Board on 6.12.2019 the Respondent produced a document entitled Maklumat Caruman purportedly issued by the EPF. The Board admitted the said document and upon examining the record of contribution, the Board was satisfied that the deceased had made more than sufficient number of monthly contributions as required under subsection 17A(3) of the Act and therefore, the appeal by the Respondent was allowed. 3

The learned counsel for the appellant pointed out the respondent never produced the said Maklumat Caruman when requested and although the respondent did not object to the admission of this document the respondent applied for an adjournment to verify the same. In addition the learned counsel pointed out that pursuant to subsection 56(1) of the Act discretion is given to the appellant to take into account contributions which were deducted but not paid to the Organisation. It was submitted that the Board had usurped the discretion given to the Organisation by taking the said Maklumat Caruman as proof without any verification.

The learned counsel for the respondent raised an objection premised upon subsection 91(2) of the Act that the appeal shall lie if it involved a substantial question of law. As there was no question being formulated for the court’s consideration the appeal was not proper. Further the finding of the Board was one of fact. References were made to Ketua Pengarah Pertubuhan Keselamatan Sosial v. Tham Tian Siong [2008] 8 CLJ 341; Ketua Pengarah Pertubuhan Keselamatan Sosial v. Vadivelan Sandara Saigara [2008] 9 CLJ 428; and Ketua Pengarah Pertubuhan Keselamatan Sosial v. Ismail Mahat [2015] 1 LNS 1391.

It was further submitted by that the Board did not err in considering the Maklumat Carian as the information contained therein contradicted the Organisation’s evidence (exhibit 4) which failed to show the correct number of monthly contributions made by the deceased and that the appellant had failed to explain the absence of the said information in exhibit 4. 4

I agreed that whether the deceased had made sufficient monthly contributions is an issue of fact. However the manner of proving the said fact and admitting the same is a question of law. For a document or evidence to be admitted as proof it has to be relevant and admissible. I mindful of regulation 11(g) of the Employees’ Social Security (Social Security Appellate Board Procedure) Regulations, 1976 which states: “(g) the provisions of law relating to evidence shall not apply to proceedings before the Board;” Nevertheless I do not think the Board can ignore the principles of justice and fairness.

The respondent did not make exhibit 14 available to the Organisation when the latter requested for the Maklumat Caruman and was caught by surprise when the said exhibit was produced during the proceedings before the Board. To my mind, the Organisation rightly made the application for adjournment to verify the same. Exhibit 14 was indeed crucial to the claim made by the respondent. The burden lies with the respondent to show that the deceased did make sufficient monthly contributions to support the claim. The respondent did discharge the said burden by producing exhibit 14. However, it was only produced during the proceedings. It is only fair and just to allow the appellant to verify the said Maklumat Caruman. The learned counsel for the appellant told the Court that if the information contained in the Maklumat Caruman was accurate, the Organisation would process the said claim. Since they were not given 5 the said opportunity, the Board had erred by relying on an unverified evidence when it allowed the appeal by the respondent.

Clearly the Board had misdirected itself in taking this unverified document as truth when it was never submitted to the Organisation earlier when requested. In addition the Board failed to consider subsection 56(1) of the Act which gives the discretion to the Board to consider whether the deceased’s employer did in fact failed to remit the deductions made from the deceased’s salary to the Organisation. Subsection 56(1) reads: “Section 56. Discretion to compute the qualifying period and the rate of monthly invalidity pension.

Notwithstanding the provisions of sections 17, 17A, 20 and 29 and the Eighth Schedule, the Organization may take into account, for the purposes of computing the qualifying period for invalidity pension, survivors' pension, funeral benefit and the rates of monthly invalidity pension and survivors' pension, any contribution in respect of an insured person which, though due under this Act, have not actually been paid.

If, but for taking into account contributions referred to in subsection (1), a person would not complete the qualifying period or would be entitled to the invalidity pension or survivors' pension at a lower rate, the actuarial present value of the pension or such part of the pension as is attributable to the contributions taken into account in subsection (1), may be recovered by the Organization from the employer who has failed to pay the aforesaid contributions, or if there is more than one such employer, from all of them, in proportion to the amount of contributions they failed to pay.”. 6 [11] The Organisation pursuant to this provision can exercise its discretion to override the strict requirement of subsection 17A(3) of the Act. And to enable it to exercise the said discretion the information contained in the Maklumat Caruman needs to be verified. The Board in disallowing the adjournment requested had deprived the Organisation from applying subsection 56(1). [12] Based on these reasons, I allowed the appeal and remitted the case to the Board. The Board shall allow the appellant to verify the Maklumat Caruman and shall reconsider the appeal by the respondent in the event the Organisation decides to maintain the decision not to allow the claim submitted by the respondent. T.T (TUN ABD MAJID BIN DATO’ HAJI TUN HAMZAH) Hakim Mahkamah Tinggi Malaya, Shah Alam Tarikh: 16 November 2020 7 Peguamcara-Peguamcara:- Peguamcara Pihak Perayu Sivabalan, Goh Wan Ping TETUAN MASTURA PARTNERSHIP K-5-3, Solaris Mont Kiara, Jalan Solaris Mont Kiara, 50480 Kuala Lumpur Tel: 03 – 6201 5566 Faks: 03 – 6201 0000 Emel: info@masturapartnership.com.my Peguamcara Pihak Responden Natalia Ishak TETUAN SKRINE Unit No. 50-8-1, Tingkat 8, Wisma UOA Damansara, 50 Jalan Dungun, Damansara Heights, 50490 Kuala Lumpur Tel: 03 – 2081 3999 Faks: 03 – 2094 3211 Emel: natalia.ishak@skrine.com