Kuwait Court of Cassation principle number 530

Summary: - The law’s vesting an administrative authority with a particular competence. Its effect. It may not relinquish or delegate it. Reason therefor. Exercising this competence is a duty upon it and not a right belonging to it. Exception. The law permits this, and the delegation must be specific and not total, and expressed clearly without ambiguity or obscurity, since it may not be implicitly presumed. - Referral of holders of the general leadership 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 by the Minister and within the limits he prescribes in accordance with the interests of the work. The competent Minister is barred from exercising the delegated powers during the period of delegation; otherwise, it is tainted by lack of competence, resulting in its invalidity and the invalidity of the procedures taken on its basis. - The Undersecretary’s competence to impose disciplinary penalties on holders of the general posts group, except dismissal from service, which is by decision of the Minister. The Minister’s right to review these penalties does not mean that he may impose the penalty in the first instance. Reason therefor. The legislature laid down a provision to that effect which must be observed and not departed from. - The safeguard of deliberation in issuing a disciplinary penalty against a public employee by having it issued by an authority other than that empowered 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 is vitiated by lack of competence. Annulment of this decision for a reason that does not give rise to a right to compensation. Rule: It is established that if an administrative authority is vested by law with a particular competence, it may not relinquish or delegate it, because exercising that competence—in that event—is a duty upon it and not a right belonging to it, and it may not entrust it to another. Exceptionally, however, competence may be delegated where the law permits this. In that case, the delegation must be specific and not total, and expressed clearly without ambiguity or obscurity; it may not be implicitly presumed. Whereas Article (56) of the Decree on the Civil Service System provides that “Referral of employees holding posts in the two groups of general leadership posts for investigation shall be by decision of the competent Minister,” and Article (5) of Decree-Law No. 116/1992 concerning Administrative Organization, the Determination of Competences and Delegation thereof provides that “The Minister may entrust some of his powers conferred upon him by laws and regulations to the governors, and may also entrust some of these powers to: a- the Undersecretary or the Assistant Undersecretary ...”, and Article (9) thereof provides that “Delegation shall be issued and revoked by a written decision of the delegating authority, and notified to the authority to which powers are delegated. The authority that has entrusted some of its powers to another authority pursuant to the preceding articles may not exercise these powers 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 by the Minister, and within the limits he prescribes, in accordance with the interests of the work. In this latter case, the competent Minister is barred from exercising the delegated powers during the period of delegation. Whereas it is established from the papers that the Minister of Public Works issued Decision No. 19/2006 delegating to the Undersecretary the exercise of some of his powers, including the competence to refer holders of general posts for investigation, and the papers contain nothing evidencing revocation of this delegation, the Minister’s Decision No. 20 of 2009 referring the respondent for investigation was therefore issued by someone without power to issue it and is tainted by lack of competence. This results in its invalidity and the invalidity of the procedures taken on its basis, including Penalty Decision No. 7 of 2010, which was also issued by the Minister, penalizing the respondent by reducing his monthly salary by one quarter for three months. This competence is reserved to the Undersecretary under Article 61 of the Decree concerning the Civil Service System, which provides that “.........As for holders of the general posts group, the Undersecretary shall be competent to impose all disciplinary penalties except dismissal from service, which shall be by decision of the Minister....”. The Minister’s right to review these penalties does not mean that he may impose the penalty in the first instance. Otherwise, the legislature’s arrangement for imposition of the penalty by the Undersecretary followed by reconsideration by the Minister would be meaningless, and would defeat a benefit and safeguard established by the legislature for the employee: deliberation in imposing the penalty and careful examination through an assessment by the Undersecretary first and issuance of the penalty decision, followed by the Minister’s supervision of that assessment. Furthermore, 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 perceived, 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 empowered to review it. Accordingly, the challenged penalty decision was issued by the Minister, who had no power to issue it, and on the basis of procedures initiated by the decision referring the matter for investigation, which he issued while also lacking power to do so. This vitiates the challenged decision by lack of competence and renders it deserving of annulment. Since this annulment relates to the defect of lack of competence, it does not warrant compensation therefor.