Kuwait Court of Cassation principle number 205

Summary: - The law vesting an administrative authority with a particular competence. Its effect. It may not relinquish or delegate it. The reason. Its exercise of that competence is a duty incumbent upon it and not a right belonging to it. The exception. The law permitting this, and the delegation being specific rather than total, and made clearly without ambiguity or obscurity, since it may not be presumed by implication. - Referral of holders of the group of general leadership posts for investigation may, in principle, be made only by a decision of the Minister. Neither the Undersecretary nor the Assistant Undersecretary may exercise this competence except upon an express written decision issued by the Minister and within the limits he determines in accordance with the interests of work. The competent Minister is prohibited from exercising the delegated competences during the period of delegation; otherwise, it is tainted by lack of competence, resulting in its invalidity and the invalidity of procedures issued on its basis. - The Undersecretary’s competence to impose disciplinary penalties on holders of the general posts group, except dismissal from service, for which a decision is issued by the Minister. The Minister’s right to review these penalties does not mean that he may initially impose the penalty. The reason for this. The legislature has laid down a provision to that effect which must be observed and not departed from. - The safeguard of deliberation in imposing a disciplinary penalty upon a public employee by having it issued by an authority other than that possessing the power to review it. The purpose of this safeguard. Issuance of the decision by the Minister when he has no power to issue it and no power to refer for investigation. The decision being tainted by lack of competence. Annulment of that decision for this reason does not give rise to a right to compensation. Rule: It is established that where an administrative authority is vested with a particular competence by law, it may neither relinquish nor delegate it, because exercising that competence is then a duty incumbent upon it and not a right belonging to it, and it may not entrust it to another. However, exceptionally, delegation of competence is permissible where the law permits it. In that event, the delegation must be specific rather than total, and made clearly without ambiguity or obscurity; it may not be presumed by implication. Article (56) of the Decree concerning the Civil Service System provides that: “Referral of employees holding posts in the two groups of general leadership posts for investigation shall be by a decision of the competent Minister.” Article (5) of Decree-Law No. 116/1992 concerning administrative organisation, determination of competences, and delegation thereof provides that: “The Minister may entrust certain of his competences conferred upon him under laws and regulations to the governors, and may also entrust certain of these competences to: a- the Undersecretary or Assistant Undersecretary ...”. Article (9) thereof provides that: “Delegation shall be issued and revoked by a written decision of the delegating authority and shall be communicated to the authority to which delegation is made. An authority which has entrusted certain of its competences to another authority—in accordance with the preceding Articles—may not exercise those competences during the period of delegation.” This indicates that referral of holders of the leadership and general posts group for investigation may, in principle, be made only by a decision of the Minister. Neither the Undersecretary nor the Assistant Undersecretary may exercise this competence except upon an express written decision issued by the Minister, within the limits he determines according to the requirements of the interests of work. In this latter case, the competent Minister is prohibited from exercising the delegated competences during the period of delegation. Since it is established from the papers that the Minister of Public Works issued Decision No. 19/2006 delegating to the Undersecretary the exercise of certain of his competences, including competence to refer holders of general posts for investigation, and the papers contain nothing indicating revocation of that delegation, Ministerial Decision No. 20 of 2009 referring the respondent in the appeal for investigation was therefore issued by someone without the power to issue it and is tainted by lack of competence. This results in its invalidity and the invalidity of procedures issued on its basis, including Penalty Decision No. 7 of 2010, which was likewise issued by the Minister, penalising the respondent in the appeal by reducing his monthly salary by one quarter for three months. This is a competence reserved to the Undersecretary under Article 61 of the Decree concerning the Civil Service System, which provides: “......... As regards holders of posts in the general posts group, the Undersecretary shall be competent to impose all disciplinary penalties except dismissal from service, for which a decision shall be issued by the Minister....”. The Minister’s right to review these penalties does not mean that he may initially impose the penalty. Otherwise, the legislature’s arrangement for imposition of the penalty by the Undersecretary and then reconsideration thereof by the Minister would be futile, and would forfeit an advantage and safeguard established by the legislature for the employee, namely deliberation in imposing the penalty and careful consideration through an assessment by the Undersecretary first and issuance of the penalty decision, followed by the Minister’s supervision of that assessment. Moreover, where the legislature lays down a legislative provision, it must be observed and must not be contravened or departed from, in compliance with the will of the legislature, which determined, for considerations it deemed appropriate, safeguards it wished to achieve, a public interest it sought, and constitutional principles by which it is bound, that the disciplinary decision should be issued by an authority other than the authority possessing the power to review it. Consequently, the challenged penalty decision was issued by the Minister when he had no power to issue it, and on the basis of procedures initiated by the decision referring the matter for investigation, which he issued when he likewise had no power to do so. This taints the challenged decision with lack of competence and renders it deserving of annulment. Since this annulment relates to lack of competence, it does not warrant compensation therefor.