DEMOSTHENIS IOANNOU ν. REPUBLIC (CHAIRMAN OF THE COUNCIL FOR THE REINSTATEMENT OF DISMISSED CIVIL SERVANTS) (1967) 3 CLR 33

(1967)3 CLR 33 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων

(1967)3 CLR 33 1967 January 14 [TRIANTAFYLLIDES, J.] IN THE MATFER OF ARTICLE 146 OF THE CONSTITUTION DEMOSTHENIS IOANNOU, Applicant, and THE REPUBLIC OF CYPRUS, THROUGH THE CHAIRMAN OF THE COUNCIL FOR THE REINSTATEMENT OF DISMISSEDCIVIL SERVANTS. Respondent. (Case No. 29/66) Public Officers-Dismissed Public Officers exclusively for "political" reasons-"Entitled officers"-Reinstatement-The Dismissed Public Officers Reinstatement Law 1961 (Law No. 48 of 1961)-"Political reasons" and "entitled officers"-Section 2-Refusal of Applicant's claim for reinstatement-On tile ground that his services were not terminated for "political reasons" in the sense of section 2, supra-Reasonably open to the Respondent Council to reach such conclusion-Indeed such conclusion was the only proper conclusion in the circumstances-No need for further inquiry in this case-Constantinou case and Hadjilouca case (Infra) both distinguished. "Entitled Officers"-See above. "Political reasons"-See above. Reinstatement-Reinstatement of dismissed public officers exclusively for "political reasons"-See above. Dismissed Public Officers-Reinstatement-See above. Under the Dismissed Public Officers Reinstatement Law, 1961 (Law No. 48 of 1961) public officers in the service of the former colony of Cyprus and dismissed by the then British authorities exclusively for "political reasons" as defined in section 2 of the said Law are "entitled officers" entitled to be reinstated under certain conditions. The Applicant in the present case, a temporary prison warder, was dismissed from his service by the former British authorities for reasons of unsatisfactory service and inefficiency. He applied in due course to the Respondent Council for reinstatement under the aforesaid Law but his application was refused, the said Council having found that he could not be said to have become an "entitled officer" within the definition of the Law, section 2 (supra), inasmuch as he was not dismissed from the service for "political reasons". By this recourse, under Article 146 of the Constitution, the Applicant challenges the validity of the Respondent s council s said refusal to reinstate him as aforesaid. The Court, after reviewing the facts and in dismissing the application: Held,

(1)(

1. a)in order that Applicant could have been found to be an entitled officer" his services ought to have been terminated for "political reasons" within the definition in section 2 of Law No. 48 of 1961 (supra) and, moreover, in accordance with the definition of the expression "entitled officer" in the same section, such termination ought to have been due "exclusively" to the said reasons. (
2. b)Reasons of unsatisfactory service and inefficiency, such as those for which Applicant's services were terminated, could not come, in the least, within the definition of "political reasons" in section 2 of the said Law No. 48 of 1961 (supra).

(2)In my opinion, the conclusion reached by the Respondent Council that the Applicant's services were not terminated for "political reasons", in the sense of the said Law No. 48 of 1961 (3upra), was reasonably open to it. It was, indeed, the only proper conclusion in the circumstances of this case.

(3)(

1. a)I cannot hold in the present case that the Respondent Council has failed to conduct a full inquiry. It has borne in mind the Applicant's nationalistic activities. Enquiring into that aspect of the matter further, would not have been of any use, in the circumstances, because what mattered was to discover whether the British authorities, in terminating at the time the services of the Applicant, acted exclusively for "political reasons" i.e. because of Applicant's activities in assisting EOKA; and in this respect, the personal file of the Applicant established beyond doubt that this was not so at all. (
2. b)This is not an instance in which the Applicant had resigned apparently voluntarily on the face of the official records, and it was being suggested that in fact, he had been under psychological pressure so to do, in which case a full inquiry beyond the official records might have been necessary. (Constantinou and the Republic

(1966)3 C.L.R. 793 distinguished; Hadjilouca and The Republic

(1966)3 C.L.R. 854, distinguished). Application dismissed. No order as to costs. Cases referred to: Constantinou and the Republic

(1966)3 C. L.R. 793, distinguished; Hadjilouca and the Republic,

(1966)3 C. L. R. 854, distinguished. Recourse. Recourse against the decision of the Respondent Council by virtue of which Applicant was not found to be an entitled officer under the provisions of the Dismissed Public Officers Reinstatement Law 1961, (Law 48/61). L. Clerides for the Applicant. K Talarides, Counsel of the Republic, for the Respondent. Cur. adv. vult. The following Judgment was delivered by: TRIANTAFYLLIDES, J.: The Applicant in this Case complains against a decision of the Respondent Council, communicated to him by letter dated the 28th January, 1966, (see exhibit 1), by virtue of which he was not found to be an entitled officer under the provisions of the Dismissed Public Officers Reinstatement Law 1961 (Law 48/61). As it appears from the file of the Respondent Council, relating to the case of the Applicant (see exhibit 4), the Applicant first applied for reinstatement, under the said Law, on the 10th December,

1. By letter dated the 18th July, 1962, he was notified that his application had been rejected. Upon that, he filed, on the 28th November, 1962, a recourse (300/62) against the rejection of his application. It is common ground that this recourse was withdrawn with a view to Applicant's case being reconsidered by the Respondent Council. With a view to such reconsideration the Applicant on the 1st May, 1965, placed before the Council, in writing (see exhibit 3), material relevant, according to him, to his application for reinstatement; he, also, at the same time, supplied to the Respondent Council the names of persons who could give information in support of his application. On the 27th January, 1966, the Respondent Council reached, after reconsideration, a duly reasoned decision in the matter, (see, again exhibit 4); for the reasons given therein, it was found that Applicant s claim for reinstatement could not be accepted. The relevant employment history of Applicant is, in accordance with his personal file (see exhibit 5), as follows: On the 8th November, 1955, he was first employed as temporary prison warder (P.W. 841) at the Central Prisons. On the 24th December, 1955, he was found guilty of neglect of duty, as a sentry, and he was severely reprimanded. The Applicant was, next, posted at the Pyla Detention Camp, as a warder, as from April,
2. On the 8th August, 1956, an attempt was made by four detainees to escape from the said Camp; the attempt was unsuccessful. As the Applicant had failed to record movements from, and to the relevant Compound of the Camp at the material time-as he had been instructed to do-and as, according to 'the written observations of the Commandant of the Camp (see blue 29 in exhibit 5), he was considered to be dangerous because of his obvious sympathies for the detainees, he was returned, on the 9th August, 1956, to the Central Prisons, where he was assigned new duties there. On the 18th August, 1956, the Applicant was punished disciplinarily, by a fine, of £2, for having failed to record the movements of detainees in the Camp on the 8th August,
3. The four detainees were prosecuted for attempted escape, before the Special Court of Larnaca, in case 397/56, (see the record exhibit 6) which was heard on the 6th September, 1956; they alleged that they had only been playing hide-and-seek and they were acquitted; the Applicant was a witness for the prosecution and he assisted the accused detainees by stating that hide-and-seek was a popular game in the Camp. On the evidence before me I have no doubt that the Applicant bad assisted the attempted escape of the detainees; also I do accept that while being posted at the Central Prisons he had helped, as best as he could, members of EOKA who were detained therein. Eventually, on the 1st November, 1956, the Applicant was notified in writing that his services were terminated as from the 1st December, 1966, in accordance with paragraph 7

(1)of the Prisons (Prison Service) Regulations 1948, which provided that the engagement of a temporary Warder may be determined at any time without assigning any reason, on a month's notice. In a certificate given to the Applicant by the Director of Prisons on the 17th November, 1956, it was stated that he was a person of good character, but he was never likely to make the grade as a permanent prison warder because he was too familiar with convicts and, so, he could not enforce discipline (see blue 37 in exhibit 5); The said certificate was given to Applicant with a view, apparently, to his obtaining employment as a fire-man with the British military authorities; and he did obtain such employment. The Applicant made repeated attempts to re-enlist as a prison warder but the authorities took the view that this was not possible. In a letter dated the 4th December, 1957, from the Director of Prisons to the Commissioner, Nicosia and Kyrenia, (blue 41 in exhibit 5) it was stated that "As he"-Applicant-"showed no signs of improvement in spite of various warnings made to him on his shortcomings, it was thought fit to discharge him rather than retain him a permanent burden on the Prison Service". There has never been any mention, in the relevant contents of his personal file, that the Applicant was not considered to be a good security risk, from the point of view of being involved in, or associated with, the EOKA Liberation Struggle. The Respondent Council, bore fully in mind-as it appears from the decision dated 27th January, 1966, in exhibit 4-that it was the Applicant's contention that he had assisted in the attempt to escape by the detainees, that he V had further given evidence later in their favour, and that he had been punished disciplinarily in relation to the said escape. It found, nevertheless, on perusal of the personal file of the Applicant (exhibit 5), that he was not an "entitled officer" under Law 48/61, because he had not been dismissed from the service for political reasons". In order that Applicant could have been found to be an "entitled officer" his services ought to have been terminated for "political reasons", as such reasons are defined in section 2 of Law 48/61, and, moreover, in accordance with the definition of an "entitled officer", in the same section, such termination ought to have been due "exclusively" to the said reasons. Reasons of unsatisfactory service and inefficiency, such as those for which Applicant's services were terminated, could not come, in the least, within the definition of "political reasons" in Law 48/

1. In my opinion, the conclusion reached by the Respondent Council, that the Applicant's services were not terminated for political reasons, in the sense of Law 48/61, was reasonably open to it, and I would go as far as to say that it was the only proper conclusion in the circumstances. There is not a single statement in the Applicant's personal file suggesting that the termination of his services was due to political reasons. The only entry therein which could be said to bear some connection with political, reasons is the letter of the Commandant of Pyla Detention Camp, dated 9th August, 1956, (see blue 29 in exhibit 5) referring the Applicant back to the Central Prisons because of his obvious sympathies for the detainees; but this was written only in relation to the unsuitability of Applicant as a Detention Camp warder, and not in relation to the termination of his services; and it is a fact that the Applicant remained in the Prison Service for another two and a half months before being given notice of termination of his services. In this respect, I have considered whether it is possible that the decision to terminate the services of the Applicant was taken immediately after the attempted escape from Pyla Detention Camp, on the 8th August, 1956, but no steps were 'taken to implement it in view of the impending trial of the detainees, at which trial the Applicant was to be a witness. But the trial was concluded on the 6th September, 1956, and the notice of the termination of the services of the Applicant is only dated the 1st November, 1956, with effect as from 1st December,
2. So, there does not appear to exist any real connection between the date of the trial and the date of the notice; for any such connection to exist one would expect the notice to be dated 1st October,
3. Counsel for Applicant has argued that it was wrong for the Respondent Council to limit itself to the official records, i.e. the personal file of the Applicant, and not to conduct a full inquiry into the matter, hearing also the persons whom Applicant had proposed as potential witnesses. I cannot hold, in the present Case, that the Respondent Council has failed to conduct a full inquiry. It has borne duly in mind the Applicant's nationalistic activities. Enquiring into that aspect of the matter further, and hearing the relevant witnesses, would not have been of any use, in the circumstances, because what mattered was to discover whether the British authorities, in terminating, at the time, the services of the Applicant, acted exclusively for political reasons. i.e. because of his said activities; and, in this respect, the personal file of the Applicant established beyond doubt that this was not so at all. This was not an instance in which the Applicant had resigned apparently voluntarily on the face of the official records, and it was being suggested that, in fact, he had been under psychological pressure so to do, in which case a full inquiry beyond the official records might have been necessary (as in Constantinou and. The Republic,

(1966)3 C.L.R. 793 and Hjilouca and The Republic,

(1966)3 C.L.R 854). For all the above reasons, this recourse fails and is dismissed accordingly; but, in the circumstances, I am not making any order as to costs. Application dismissed. No order for costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο