Recourse
of the Constitution-Ex post facto validation of administrative decisions-Effect of such legislation on administrative decisions already forming the subject-matter of a recourse and in relation to which judgment of this Court had already been reserved-Such decisions unaffected-See also supra. Words and Phrases-"Administrative control" («Δοικητικός έλεγχος") in section 10
Articles 122 to 125 of the Constitution-Ceased to exist on the promulgation of the Public Service Law, 1967 (Law No. 33 of 1967)-Public Service Commission set up
said Law No. 33 of 1967-Not empowered to deal with matters concerning members of the staff of a public corporation such as the Respondent. In this case the Applicant complains against his dismissal from the service of the Respondent Cyprus Telecommunications Authority (CYTA) on disciplinary grounds. The main argument put forward by the Applicant in support of the present recourse was that there was no competence vested in the Respondent to deal with, and decide upon, the matter. The relevant decision was taken by the Board of the Respondent Authority on January 24, 1968, viz, about seven months after the enactment in June, 1967 of the Public Service Law, 1967 (Law No. 33 of 1967). Until then, the organ vested with the disciplinary control, or power over the personnel of the Respondent Authority was undoubtedly the Public Service Commission established
of the Constitution (see Article 125 read together with Articles 122 and 124 of the Constitution). On the other hand, in Bagdassarian's case (infra) it was held that: (a) Upon the promulgation in June, 1967 of the aforesaid Public Service Law, 1967, there ceased to exist a Public Service Commission competent,
of the Constitution (supra), to exercise any powers in relation to such matters as aforesaid; and (b) the Public Service Commission set up and functioning
the aforementioned Public Service Law, 1967 (Law No. 33 of 1967) was not an organ empowered, at the material time, to deal with matters concerning members of the staff of a Public Corporation such as the Respondent Authority (see Bagdassarian and The Electricity Authority of Cyprus
Law No. 33 of 1967 (supra) did not possess any relevant competence in relation to the personnel of the Respondent, then such had, ipso facto, vested in the Respondent. Such view was held by the Court to be erroneous (infra). Be that as it may, the Respondent relying on sections 10 and/or 28 of the Telecommunications Service Law, Cap. 302, as amended by section 4 of the Telecommunications Service (Amendment) Law, 1963 (Law No. 25 of 1963) (see infra) and, alternatively, on the doctrine of necessity, submitted that they were entitled, through their Board, to act as they have done in relation to the disciplinary charges against the Applicant in the instant case. It is to be noted that. pending delivery of the judgment in this case a Law was promulgated whereby matters were put right; this is the Public Bodies (Regulation of Personnel Matters) Law, 1970 (Law No. 61/70). But this Court held that the said Law does not affect the outcome of the case, because such Law, particularly its section 4, does not, and could not, have the effect of rendering valid retrospectively the decision complained of, once the judgment of this Court had already been reserved in relation thereto (infra). Annulling the Applicant's dismissal from the service of the Respondent Authority, the Court:- Held,
section 10 of the Telecommunications Service Law, Cap. 302, as amended by section 4 of the Telecommunications Service (Amendment) Law, 1963 (Law No. 25 of 1963), to deal with the said charges against the Applicant and decide thereon, as it did. Section 10
the administrative control of the Authority" (viz. the Cyprus Telecommunications Authority, the Respondent in the present case). In my opinion, the notion of "administrative control" ("Διοικητικός έλεγχος") in sub-section
section 24 of the same Law Cap.302, the
taking of the former. (b) As a matter of fact sub-section
section 28
of the Constitution ceased to exist the doctrine of necessity entitled the Respondent, through its Board, to act as it has done in relation to the disciplinary charges against the Applicant. The relevant principles and case law have been referred to in the Iosif case (supra), and I need not repeat-them herein. Bearing them in mind and on the basis of the material before me, I have come to the conclusion that a proper application of the doctrine of necessity could not have, at all, warranted the exercise of competence by the Respondent to the extent of conducting a final hearing regarding the disciplinary charges, against the Applicant and deciding to dismiss him finally from its service on the ground that he had been found guilty in respect thereof.
the Public Service Law, 1967 (Law No. 33 of 1967) did not possess 'any-relevant competence in relation, inter alia, to the personnel of the Respondent (supra), then such competence had, ipso facto, vested in the Respondent. But such a view was indeed, an erroneous one, and this error is quite eloquently indicated in the preamble to the Public Bodies (Regulation of Personnel Matters) Law, 1970 (Law No. 61 of 1970).
the Public Service Law, 1967 (Law 33/67) was not an organ empowered, at the materialtime to deal-with matters concerning members of the staff of a public corporation such as the present Respondent; and it was, also, held that upon the promulgation of Law 33/67, there ceased to exist a Public Service Commission competent,
Then, the present case was heard, further, on the other issues arising herein, including the issue as to whether or not the Respondent, acting through its Board, was competent, at the material time, to deal with the disciplinary charges against the Applicant and to decide, on the basis thereof, to dismiss him. For reasons analogous to those stated recently in my judgment in a similar case (Iosif and Cyprus Telecommunications Authority (reported in this Part at p. 225 ante) 1 am of the view that the Respondent was not entitled,
section 10 of the Telecommunications Service Law (Cap. 302) as amended by means of section 4 of the Telecommunications Service (Amendment) Law, 1963 (Law 25/63), to deal with the said charges and to decide thereon, as it did. In the Iosif case (supra) I examined, in particular, the effect of sub-section
the administrative control of the Authority". In my opinion, the notion of administrative control (διοικητικός έλεγχος), in sub-section
of the Constitution, .such power; It was submitted, by counsel for the Respondent, that the Respondent was, in any case, empowered to dismiss the present Applicant in view of the provisions of section 28 of Cap. 302. Such section is a transitional provision and it relates to those of the officers of the Respondent. Authority, such as the Applicant, who were previously in the employment of Cable and Wireless Ltd. and became officers of the Respondent when it took over the
taking of Cable and Wireless Ltd.
section 24 of Cap. 302. As a matter of fact sub-section
section 28
ceased to exist, the doctrine of necessity entitled the Respondent, through its Board, to act as it has done in relation to the disciplinary charges against the Applicant (either by acting
section 28
the doctrine of necessity, with a view to deciding to keep the Applicant,
such terms as might be deemed proper, away from his employment, pending the future determination of his guilt or innocence, in relation to such charges, by a competent organ. Such a temporary measure would have sufficed to protect not only the Respondent's interests but, also, the public interest. It might have been desirable for the Applicant to have the disciplinary charges against him dealt with as. expeditiously as possible, so as not to be kept in uncertainty about his future; and, also, it might have been desirable that, if found guilty of such charges, he should be punished therefor as early as possible, because his prompt punishment would have a greater deterrent effect on the other employees of the Respondent than keeping him away from work indefinitely, pending his eventual disciplinary trial by a competent, for the purpose, organ; but these considerations could certainly not be treated as being so imperative as to amount to exceptional circumstances enabling valid resort to the doctrine of necessity for the purpose of dealing, as it was done, with the matter of the said charges. As in the losif case, in the present case, too, it is quite clear that the Board of the Respondent, ,embarked upon the course of action which has led to the sub judice decision, without having considered whether or not there had arisen a proper occasion for resorting to the doctrine of necessity, and, if so, to what extent. It was taken for granted that once the Public Service Commission which was set up
Law 33/67 did not possess any relevant competence in relation to the personnel of the Respondent, then such competence had ipso facto, vested in the Respondent. Such a view was, indeed, an erroneous one, and this error is quite eloquently indicated by the preamble to the Public Bodies (Regulation of Personnel Matters) Law, 1970 (Law 61/70); and, in connection with such Law, it might be stated that in the present case, also, I am of the opinion, as I was in the losif case, that section 4 thereof does not, and could not, have the effect of rendering valid retrospectively the decision to dismiss the Applicant after, in relation to such decision, the judgment of this Court had already been reserved. On the basis of all the foregoing considerations the result is that the Respondent acted in an invalid manner, in particular without competence, when it adopted, at the material time, the course which led to, and included, the decision to dismiss the Applicant; therefore, his dismissal has to be declared to be null and void and of no effect whatsoever. In the circumstances it is not necessary to decide any of the other issues raised in this case, and actually, I should not do so, because, in view of the possibility of a new disciplinary trial, of the Applicant, I should say nothing which might prejudice the outcome of such trial. Bearing in mind all relevant factors I am not prepared to make any order. as to cots. Sub judice decision annulled. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
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