Kuwait Court of Cassation principle number 155

Summary: - Adding periods of service preceding acquisition of Kuwaiti nationality. Its condition. The addition must be to periods of contribution to insurance under Part Three of the Social Insurance Law or to periods subject to the provisions of Law No. 69 of 1980, which are actual periods for which contributions have been paid. Those periods are to be added under the same conditions and rules under which they would be added had they followed acquisition of Kuwaiti nationality, and the addition must increase the pension for pensioners and entitled beneficiaries. - Non-commissioned officer—military. His entitlement to a retirement pension where his service ends at his request. Its condition. His service calculated in accordance with the law must be fifteen years and he must have reached the age of fifty. His not having reached that age when making his request. Consequence thereof. His actual service must be no less than twenty years for him to be entitled to a pension. - A request by a non-commissioned officer—military 0 to add periods of service preceding acquisition of Kuwaiti nationality for entitlement to a retirement pension. Its condition. He must be entitled to a retirement pension assuming no addition, or upon termination of service on reaching the age of fifty. An example of the appellant—a non-commissioned officer—not being entitled to a retirement pension under the Social Insurance Law and Law No. 69/1980 because he had not reached the age of fifty, despite satisfaction of the other condition, namely that his service for which contributions were actually made had reached fifteen years, because the law requires both conditions concurrently. Rule: It is established in the case law of this Court that the provision in Article Seven of Decree-Law No. 69 of 1980 concerning Retirement Pensions and Gratuities for Military Personnel that "A retirement pension is payable in the following cases: 1) Termination of the beneficiary's service due to death, a judgment establishing uninterrupted absence, or discharge .. or the occurrence of death or total disability ... 2) Termination of the beneficiary's service upon reaching the legally prescribed age for leaving service or upon being referred for retirement, provided that his service calculated under this Law is at least fifteen years. 3) Termination of the beneficiary's service for reasons other than those specified in the preceding two paragraphs, where his service calculated under this Law is fifteen years and he has reached the age of fifty; if he has not reached that age upon termination of service, entitlement to a pension requires that his actual service calculated under this Law be no less than twenty years." And the provision in the last paragraph of Article Four of the same Decree-Law, following its amendment by Law No. 37 of 1982, that "The provisions of Article (30 bis) of the Social Insurance Law shall apply to the beneficiary"; and in the first paragraph of Article 30 bis of Social Insurance Law No. 61 of 1976, added by Law No. 37 of 1982, that "At the request of the insured person, periods spent in service before acquiring Kuwaiti nationality may be counted, in accordance with the conditions and rules issued by decision of the Minister following approval of the Board of Directors"; and in Article One of Minister of Finance Decision No. 21 of 1982 concerning the conditions and rules for adding periods of service preceding acquisition of Kuwaiti nationality, that "At the request of the insured person or beneficiary, periods of service preceding acquisition of Kuwaiti nationality spent in the following bodies may be added to periods of contribution to insurance under Part Three of the Social Insurance Law or to periods subject to the provisions of Law No. 69 of 1980: 1) Government bodies ..."; and in Article Two of the same Decision that "The provisions of this Decision shall apply to all periods preceding acquisition of Kuwaiti nationality, even if appointment during those periods was by contract, at a fixed salary, to a temporary position or for temporary work. Subject to the provisions of the preceding paragraph, the periods specified in this Decision shall be added in accordance with the conditions and rules under which those periods would be added had they followed acquisition of Kuwaiti nationality .."; and in Article Three thereof that "The addition of the periods of service specified in this Decision requires satisfaction of the following conditions: - 1) They must be periods of actual service for which the insured person received his salary .... 4) Entitlement to a retirement pension assuming no addition, or upon termination of service on reaching the age of fifty. Nevertheless, if service ends before reaching that age and all or part of the said period is necessary for entitlement to a pension, the addition shall not take place until that age is reached, death occurs or total disability arises"; and in Article Nine thereof that "The provisions of this Decision shall apply to pensioners and entitled beneficiaries governed by the provisions of the aforementioned Social Insurance Law or Law No. 69 of 1980 if the addition would increase the pension .."; and the provision in Article 99 of Law No. 32 of 1976 concerning the Army, following its amendment by Law 23 of 2000, that "The service of a non-commissioned officer or enlisted person shall end for one of the following reasons: - 1) ... 2) Reaching the age of fifty-five. By decision of the competent Minister, service may be extended for one or more periods not taking him beyond sixty years of age, and this period shall be included in the calculation for retirement. ... 3) Referral for retirement. ...."; and in Article 101 thereof that "A non-commissioned officer may be referred for retirement if he has completed forty-five years of age and has spent no less than fifteen years in service"; and in Article 102 thereof that "A military person may request referral for retirement if he has spent twenty full Gregorian years in service," indicate that periods of service preceding acquisition of Kuwaiti nationality may be added only to periods of contribution to insurance under Part Three of the Social Insurance Law or to periods subject to the provisions of Law No. 69 of 1980, which are actual periods for which contributions have been paid. These periods are to be added under the same conditions and rules under which they would be added had they followed acquisition of Kuwaiti nationality. Such addition must also increase the pension for pensioners and entitled beneficiaries. Among the cases of entitlement of a non-commissioned officer—military—to a retirement pension is termination of his service at his request, provided that his service calculated in accordance with the law is fifteen years and he has reached the age of fifty. If he has not reached that age when making his request, entitlement to a pension requires that his actual service be no less than twenty years. Adding periods of service preceding acquisition of Kuwaiti nationality for entitlement to a retirement pension also requires that he be entitled to a retirement pension assuming no addition, or upon termination of service on reaching the age of fifty. That being so, and as it is established by the papers that the appellant is a non-commissioned officer born on 8/10/1968—as established in the statement of claim—and joined the Ministry of Defence on 28/1/1987 when he was not of Kuwaiti nationality, then acquired Kuwaiti nationality on 1/12/1998 and was registered with the Public Institution for Social Security with effect from that date, accordingly, although his service for which contributions were made to insurance under Part Three of the Social Insurance Law became more than fifteen years after he acquired Kuwaiti nationality, it is established that his service did not end upon reaching the legally prescribed age, nor had he reached the age of fifty when requesting referral for retirement. Therefore, by requesting referral for retirement, he is not entitled to a retirement pension under the aforementioned Social Insurance Law and Law 69 of 1980, because one of the two conditions of entitlement, namely reaching the age of fifty, is not satisfied, even if the other condition, namely that his service for which contributions were actually made had reached fifteen years, is satisfied, since the law requires both conditions concurrently. That being so, and as the appellant is not entitled to a retirement pension assuming no addition because one of its two conditions is absent, it follows that the condition for adding periods of service preceding his acquisition of Kuwaiti nationality, which requires that he be entitled to a retirement pension assuming no addition, is not satisfied. Since the challenged judgment adhered to this view and dismissed the appellant's action seeking entitlement to referral for retirement and payment of a retirement pension, it was founded on a sound basis in fact and law. The criticism directed against it on the ground of appeal is therefore unfounded, requiring dismissal of the appeal.