Cassation
No. 890 of 2019 (Administrative)
Panel:
Chief Judge/Mohammed Abdul Rahman Al Jarrah - Head of the Chamber - and
Counsellors/ Judges Ashraf Mohammed Shehab and Sabri Shamsuddin.
1)
Administrative decision. Time-limit. Notice serving. Grievance. Annulment
Lawsuit. Judgment “flawed substantiation”. Reversal “accepted
grounds”.
-
A lawsuit for annulment of administrative decisions shall not be accepted after
the lapse of sixty days from the date of publication of the contested
administrative decision, or of serving notice of said decision to the concerned
party, or of his proven knowledge of said decision.
-
The time-limit for accepting lawsuits for annulment of administrative decisions
shall be interrupted if a grievance is filed to the administration, and the
grievance shall be decided upon within sixty days from the date of filing. The
lapse of sixty days from the date of filing the grievance without any reply
shall be deemed as a rejection thereof.
2)
Trial court “its discretionary power”. Pleas “plea for
dismissal of the lawsuit”. Standing. Judgment “flawed
substantiation”. Reversal “accepted grounds”.
-
A plea for dismissal of the lawsuit for having been filed against a party
lacking standing shall be deemed a substantive plea that may be brought at any
time before the trial court including its two levels.
-
Inferring whether or not a party lacks standing shall be deemed a substantive
matter, as long as there are valid reasons established in the documents, away
from any violation of the law.
1-
Whereas it is prescribed as per the provision of Article (84) of the Civil
Procedures Law that a lawsuit for annulment of administrative decisions shall
not be accepted after the lapse of sixty days from the date of publication of
the contested administrative decision, or of serving notice of said decision to
the concerned party, or of his proven knowledge of said decision; however, such
time-limit will be interrupted if a grievance is filed to the administration,
and such grievance shall be decided upon within sixty days from the date of
filing. The lapse of sixty days from the date of filing the grievance without
any reply shall be deemed as a rejection thereof.
Whereas it is established in the documents that the contested decision
transferring the Respondent and changing her job title was issued on 3/1/2018
and she has filed a grievance against said decision on 1/9/2018; whereas the
documents contained no evidence proving that she has been informed of the
administration's reply to her grievance; thus, the lapse of sixty days from the
date of filing the grievance shall be considered as a rejection thereof; and as
she has filed her lawsuit on 6/6/2018 after the lapse of the sixty-day time
limit following the ipso facto rejection of the grievance; thus, the lawsuit for
annulment of the aforementioned decision shall be deemed to have been filed
after the lapse of the time-limit set; and whereas the court has not adhered to
said view in the contested judgment; therefore, it necessitates its reversal in
this respect.
2-
Whereas it was prescribed as per the ruling of the present court that a plea for
dismissal of a lawsuit for having been filed against a party lacking standing
shall be deemed a substantive plea that may be brought at any time before the
trial court including its two levels; and although inferring whether or not a
party lacks standing shall be deemed a factual matter that shall be subject to
the exclusive discretion of the trial court, as long as such discretion is based
on valid reasons established in the documents, away from any violation of the
law.
Whereas it is established in the documents that the decision terminating the
service of the Respondent was issued by the Board of Trustees of ...
Establishment; thus, said Establishment shall be deemed to have standing in the
lawsuit to be filed against said decision, on the ground that it was issued by
said Establishment; despite the Respondent’s allegations the decision was
issued by Ms./..., the representative of the Appellant - ... Establishment -; as
said allegations shall be rejected since the aforementioned Ms. ... has signed
the contested judgment on behalf of the Board of Trustees of... Establishment in
her capacity of representative of said Establishment rather than a
representative of the Appellant; despite as well the Respondent’s
allegations that the Appellant has appointed her and the authority legally
having competence to terminate her service shall be same one having competence
to appoint her; thus, the Appellant shall be deemed the one to have standing in
the lawsuit, since such allegations shall be deemed rejected since they merely
constitute objections to the validity of the contested judgment and the extent
of its legality for being issued by a person lacking competence; and examining
such matter requires looking into the merits; which shall follow the examination
of standing in the lawsuit, that shall be deemed to exist if the decision issued
is attributed to the party having issued it, even in the event it is flawed with
lack of competence; hence, based on the aforementioned and taking into account
that the party - ... Establishment having issued the contested decision lacks
competence in this respect, the Lawsuit shall be deemed to have been filed
against a party lacking standing with respect to the request of annulment of the
decision terminating the Respondent’s service, and shall therefore be
rejected; and Whereas the court has not adhered to that view in the contested
judgment; thus, it necessitates its rejection in this regard.
Whereas,
in the facts - as apparent in the contested judgment and all cassation documents
- the Respondent has filed Lawsuit No. 3808 of 2018 (Administrative- Plenary
– Sharjah) on 6/6/2018, administrative – plenary – Sharjah, on
6/6/2018, against the Appellant, requesting the annulment of Decision No. 49 of
2018 whereby she has been dismissed from service, in addition to the
consequences resulting from said decision, and the annulment of the decision to
change her job title from Deputy Director of the Human Resource and Information
Technology Department to Supervisor of ... and ... Center and the consequences
resulting from said decision, while preserving her right to compensation based
on the ground that on 3/1/2018 a decision was issued to transfer her and change
her job title in violation of the law, then she was surprised by the issuance of
a decision to dismiss her service on 16/4/2018; and she objects to said decision
on the ground that it is not based on a valid reason, and that the offences with
which she was charged are not commensurate with the penalty of dismissal from
service, in addition to the abuse of power; and she finally filed the
aforementioned requests.
In
the session of 29/1/2019, the court ruled to annul the two contested decisions
and the resulting consequences. The Appellant has field Appeal No. 331 of 2019
against that judgment. In the session dated 28/10/2019, Sharjah Federal Court of
Appeal has ruled to confirm the appealed judgment; thus, the Appellant has filed
the present Cassation.
Whereas the court has examined the Cassation in the deliberation room, it
considered that it is worthy of hearing, and has set a date for the
hearing.
Whereas the Cassation was based on three grounds whereby the Appellant objects
to the contested judgment in the second ground stating that it erred in the
application of the law, was insufficiently substantiated and contained flaws in
reasoning, as the Appellant has filed a plea for dismissal of the lawsuit for
annulment of the contested two decisions for having been filed after the lapse
of the sixty-day time-limit set for appeals against administrative decisions
issued in violation of the provisions of Article (84) Bis of the Civil Procedure
Law; however, the court has not adhered to that view in the contested judgment;
thus, it necessitates its reversal.
Whereas
this objection is apposite regarding the request of annulment of the contested
decision of transfer and change of job title, as it is prescribed as per the
provision of Article (84) of the Civil Procedures Law that a lawsuit for
annulment of administrative decisions shall not be accepted after the lapse of
sixty days from the date of publication of the contested administrative
decision, or of serving notice of said decision to the concerned party, or of
his proven knowledge of said decision; however, said time-limit shall be
interrupted if a grievance if filed to the administration, and the grievance
shall be decided upon within sixty days from the date of filing. The lapse of
sixty days from the date of filing the grievance without any reply shall be
deemed as a rejection thereof.
Whereas
it is established in the documents that the contested decision transferring the
Respondent and changing her job title was issued on 3/1/2018 and she has filed a
grievance against said decision on 1/9/2018; whereas the documents contained no
evidence proving that she has been informed of the administration's reply to her
grievance; thus, the lapse of sixty days from the date of filing the grievance
shall be considered as a rejection thereof; and as she has filed her lawsuit on
6/6/2018 after the lapse of the sixty-day time limit following the ipso facto
rejection of the grievance; thus, the lawsuit for annulment of the
aforementioned decision shall be deemed to have been filed after the lapse of
the time-limit set; and whereas the court has not adhered to said view in the
contested judgment; therefore, it necessitates its reversal in this
respect.
Whereas the appellant objects to the contested judgment in the third point of
the first ground stating that it violated law and erred in its application, as
the contested decision terminating the service of the Respondent has been issued
by ... Establishment; and thus the latter shall be deemed the party against
which the lawsuit is to be filed; however the Respondent has not filed any
lawsuit against said Establishment at any stage of the proceedings; thus, the
lawsuit shall be dismissed for having been filed against a party lacking
standing. However, the court has rejected the plea for dismissal based on that
ground in violation of the law, and necessitates its reversal.
Whereas this objection is apposite since
it is prescribed as
per the ruling of the present court that a plea for dismissal of a lawsuit for
having been filed against a party lacking standing shall be deemed a
substantive plea that may be brought at any time before the trial court
including its two levels; and although inferring whether or not a party lacks
standing shall be deemed a factual matter that shall be subject to the
exclusive discretion of the trial court, as long as such discretion is based on
valid reasons established in the documents, away from any violation of the
law.
Whereas it is established in the documents that the decision terminating the
service of the Respondent was issued by the Board of Trustees of ...
Establishment; thus, said Establishment shall be deemed to have standing in the
lawsuit to be filed against said decision, on the ground that it was issued by
said Establishment; despite the Respondent’s allegations the decision was
issued by Ms./..., the representative of the Appellant - ... Establishment -; as
said allegations shall be rejected since the aforementioned Ms. ... has signed
the contested judgment on behalf of the Board of Trustees of... Establishment in
her capacity of representative of said Establishment rather than a
representative of the Appellant; despite as well the Respondent’s
allegations that the Appellant has appointed her and the authority legally
having competence to terminate her service shall be same one having competence
to appoint her; thus, the Appellant shall be deemed the one to have standing in
the lawsuit, since such allegations shall be deemed rejected as they merely
constitute objections to the validity of the contested judgment and the extent
of its legality for being issued by a person lacking competence; and examining
such matter requires looking into the merits; which shall follow the examination
of standing in the lawsuit, that shall be deemed to exist if the decision issued
is attributed to the party having issued it, even in the event it is flawed with
lack of competence; hence, based on the aforementioned and taking into account
that the party –
... Establishment having issued the contested decision lacks competence in this
respect, the Lawsuit shall be deemed to have been filed against a party lacking
standing with respect to the request of annulment of the decision terminating
the Respondent’s service, and shall therefore be rejected; and whereas the
court has not adhered to that view in the contested judgment; thus, it
necessitates its rejection in this regard.
Whereas
the dispute is suitable for adjudication and the court addresses its
adjudication as per the provisions of Article (184) of the Civil Procedure
Law.
Therefore,
based on the aforementioned, the court rules to dismiss the lawsuit for having
been filed after the lapse of the time-limit with respect to the request for
annulment of the decision of transfer and change of job title of the Respondent,
and for having been filed against a party lacking standing as for the request
for annulment of the decision terminating the service of the Respondent.