Kuwait Court of Cassation principle number 58

Summary: - The law’s vesting an administrative authority with a particular competence. Effect: it may neither relinquish nor delegate it. Reason: exercising that competence is a duty incumbent upon it, not a right belonging to it. Exception: where the law permits this, and the delegation is specific, not comprehensive, and is made clearly, without ambiguity or obscurity, since it may not be presumed implicitly. - Referring holders of posts in the general leadership posts group for investigation is, in principle, permissible 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 prescribes in accordance with the interests of the work. The competent Minister is precluded from exercising the delegated competences during the term of the 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 is competent to impose disciplinary penalties on holders of posts in 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 impose the penalty in the first instance. Reason: 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 on a public employee, by having it issued by an authority other than the one empowered to review it. The purpose of this safeguard. Issuance of the decision by the Minister when he has neither the power to issue it nor the power to refer for investigation. The decision is tainted by lack of competence. Annulment of this decision on a ground that does not give rise to a right to compensation. Rule: It is established that, where an administrative authority is vested by law with a particular competence, it may neither relinquish nor delegate it, because exercising the competence is then a duty incumbent upon it, 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, not comprehensive, and made clearly, without ambiguity or obscurity; it may not be presumed implicitly. Article (56) of the Decree concerning the Civil Service System provides that: “Employees holding posts in the two groups of general leadership posts shall be referred for investigation by a decision of the competent Minister.” Article (5) of Decree-Law No. 116/1992 concerning Administrative Organisation, the Determination of Competences and their Delegation provides that: “The Minister may entrust some of his competences conferred upon him under laws and regulations to the governors, and may also entrust some of these competences to: a- the Undersecretary or the 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 the delegation is made. An authority that has entrusted some of its competences to another authority pursuant to the preceding articles may not exercise these competences during the term of the delegation.” This indicates that referring holders of posts in the leadership and general posts group for investigation is, in principle, permissible 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 prescribes, in accordance with the requirements of the interests of the work. In this latter case, the competent Minister is precluded from exercising the delegated competences during the term of the delegation. Since the documents establish that the Minister of Public Works issued Decision No. 19/2006 delegating to the Undersecretary the exercise of some of his competences, including the competence to refer holders of general posts for investigation, and the documents contain nothing indicating revocation of this delegation, the Minister’s Decision No. 20 of 2009 referring the respondent in the appeal for investigation was issued by a person without the 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 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 impose the penalty in the first instance; otherwise, the legislature’s arrangement for imposition of the penalty by the Undersecretary and then its reconsideration by the Minister would be meaningless. It would also defeat an advantage and safeguard established by the legislature for the employee, namely deliberation in imposing the penalty and close examination through an assessment by the Undersecretary first and issuance of the penalty decision, followed by the Minister’s review 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 wishes to achieve, a public interest it seeks 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. 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 liable to annulment. Since this annulment relates to the defect of lack of competence, it does not warrant compensation.