KUALA LUMPUR (Oct 16): The High Court on Thursday has dismissed a retired navy personnel’s legal action representing 3,210 other former Malaysian Armed Forces (MAF) personnel who were seeking higher pension payments as they alleged that the pensions they were currently receiving from their retirement which took effect before Jan 1, 2013, were lower than what they were entitled to.

Judge Datuk Raja Ahmad Mohzanuddin Shah Raja Mohzan, in his broad grounds, said the court agreed with the federal government that the salary adjustments referred to by the plaintiff were not issued to pensioners as a result of a salary revision, but rather was the result of amendments to the terms of service of the MAF.

This, the judge added, does not affect retirees who retired before the amendments took place.

“The rule applies only to the MAF members who are currently serving and agree to accept the option of the change of appointment wh,ich will bind them to the new terms of service.

“As a consequence, I am constrained to dismiss the originating summons [filed by the plaintiff],” he said.

However, Raja Ahmad did not impose the plaintiff to pay costs, and described the action as not frivolous in attempting to enforce their rights and their contributions to the nation.

This case is different from another action filed by Major (Rtd) Mior Rosli Mior Md Jaafar and 49 other former armed forces veterans, which is pending on appeal at the Federal Court, where the Court of Appeal had this year allowed the government’s appeal to set-aside the claim on their arrears.

In this (Thursday’s) case, the plaintiff, Rafique Ali Ahmad Nordin, had named the Armed Forces Council, the Defence Ministry, and the government as defendants, where in his representative action for 3,210 other former armed forces personnel, he sought for the defendants to pay pensions to, or adjust pensions for them, in accordance with the Pensions Regulations 1982.

They also claim that the defendants’ actions in paying pensions that are less than what the others should have received are wrongful and violate Article 147 of the Federal Constitution.

Following that, they want the defendants to provide statements or actual pension amounts from the date of their retirement until the date of filing of the action, and pay the total amount of shortfall.

Claim of shortfall but dismissed by court

Rafique claimed in his originating summons (OS) filed in April this year that there was allegedly a shortfall of more than RM80,000 in his pension, which he says could be applicable to others.

While the court dismissed the government’s application to strike out their action as the government claimed the plaintiff should have filed it by way of a judicial review and not an OS, Raja Ahmad ruled that the OS and their application do not encroach the realm of public law, as their action does not challenge the defendants’ decision making process, but rather the purported violation of the Pensions Regulations 1982.

Raja Ahmad said Rafique’s claim was premised on the defendants’ alleged failure to adjust his pensions and that of the others, in accordance with the Pensions Regulations 1982, and hence resulting in the shortfall.

The defendants meanwhile argued that over the relevant period, the government had only made six salary revisions, and every time there is a revision, the pensions of the armed forces pensioners were adjusted according to the formula prescribed under Regulation 54 of the Pensions Regulations 1982.

The government further claimed that the Malaysian government did not make any salary revisions between 2012 and 2024 that resulted in adjustments to pensions under the Pensions Regulations 1982, and that from 2013 to 2023, their pension amounts had been increased by 2% annually.

The defendants further said that an adjustment to pensions would not be triggered by a new salary scale that is not issued as part of a salary revision by the Malaysian government, and that the Mior Rosli appellate court decision applies.

Raja Ahmad in his decision on Thursday decided that the adjustment of pensions for Rafique had been carried out in accordance with the Pensions Regulations 1982 provisions and hence, there is no shortfall.

“In this regard, the court cannot agree with the plaintiff’s argument that the pensions for the plaintiff and 3,210 others should be adjusted every time a new salary scale has been issued by the Malaysian government.

“As a result of this, any salary scales that are not issued as a result of the Malaysian government’s salary revisions would not lead to an adjustment of pensions. The law in this regard is trite that the precondition of the salary revision is expressly stated in the definition of ‘current salary scale’ under Regulation 51 of the Pensions Regulations 1982, stating that it refers to the most recent salary scale applicable in the event of a salary revision by the government,” he said.

Rafique was represented by Datuk Dr Shukor Ahmad and Datuk Baljit Singh Sidhu, while Senior Federal Counsel Nurhafizza Azizan and Federal Counsel Muhamed Sallehuddin Md Ali appeared for the defendants.

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