DANOS ν. REPUBLIC (1983) 3 CLR 7

(1983)3 CLR 7 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

(1983)3 CLR 7 1983 January 15 [A. LOIZOU, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION KYRIACOS DANOS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR, Respondent, (Case No. 377/81). Police Force--Officer of--Voluntary resignation on being informed of commencement of disciplinary investigation against him--Not entitled to pension under regulation 45 of theIPo1ice (Discipline) Regulations 1958 to 1977--Constantinou v. Republic

(1966)3 C.L.R. 793 at p. 799 and (l969) 3 C.L.R. 190 at p. 207not applicable. Natural justice--And good administration--Principles of--Not violated by reason of not applying the Pensions (Amendment) (No.2) Law, |981 (Law 39/ 1981) to the case of applicant whose retirement had preceded the enactment of the Law, which has no reprospective effect. Constitutional Law--Equality--Principle of equality applies in similar situations--Article 28 of the Constitution. Following the commencement of a disciplinary investigation against him for alleged involvement in the Coup d'etat of July, I974, the applicant, a Police Officer, by his letter dated 6th March, 1979 submitted his resignation from the ranks of the Police Force, which was accepted. By letter dated 10th December 1980 applicant applied to the respondent to be given pension or gratuity by virtue of regulation 45of the Police (Discipline) Regulations, 1958 to 1977; his application was refused and hence this recourse. Counsel for applicant mainly contended:

(1)That applicant's resignation was not a voluntary but a Compulsory one and that regulation 45 of the Police (Discipline) Regulations 1958 to 1977 applied.

(2)That the case of Constantine v. The Republic

(1966)3 C.L.R. p. 793 at p. 799 and Constantine in the Republic

(1969). 3 C.L.R. p.l90 at p. 207 are helpful where it was held that the notion of compulsory retirement as used in paragraph (c) of the relevant definition in section 2 of the Dismissed Public Offices' Reinstatement Law 1961 (Law No. 48 of l96l), was not intended to be understood only in the narrow technical sense of section 8 of the Pensions Law, Cap. 311, but was intended to include cases where an officer has been compelled by political reasons to seek permission to retire without being formally required to do so and that by analogy the same interpretation should be given to regulation 45.

(3)That the subject decision constitutes a violation of the rules of good administration and/or natural Justice in as much as same was taken when the council of Ministers had already approved a bill for the amendment of the Pensions Law; and which bill was enacted as a Law on the 17th July 1981 by virtue of the provisions of which the applicant, even if he left voluntarily the service he would have been entitled to a pension and gratuity.

(4)That there has been a violation of the principle of equality recognized by Article 28 of the constitution inasmuch as other public officers who had actively participated in the Coup d'etat and whose services were terminated by virtue of section 6 of the Pensions Law, Cap. 311 were given full pension and gratuity. Held,

(1)that regulation 45 applies in there where for a disciplinary offence the punishment imposed is that of "requirement to resign" that since applicant has not been punished disciplinarily, regulation 45 does not apply.

(2)That the Constantine cases (supra) turned on the interpretation of a particular Law and can have no bearing in this case, even if it were to be. Considered that the circumstances under which the applicant resigned amounted to what has been submitted on his behalf as a compulsion, which it is not.

(3)That the amendment to the Pensions Law, which was effected by means of the Pensions (Amendment) (No.2) Law, l98l (Law 39/ 1981), came into force more than two years and three months after the resignation of the applicant from the service. It has no retrospective effect and there is nothing to warrant the contention that the non-payment of pension or gratuity to the.applicant constituted a violation of the principles of good administration and/or natural justice, whatever these contentions may mean in relation to the circumstances of this case

(4)That the contention about violation of Article 28 of the Constitution cannot stand as same has not been substantiated in any way so as to make a comparison of their similarities that could justify equal treatment and furthermore on the basis of what is alleged these are different situations inasmuch as the applicant had himself resigned and section 6 of the Law provides for the circumstances for which pensions may be granted, which as it stood at the time of the applicant's resignation it did not cover his case. Application dismissed. Cases referred to: Constantinou v. Republic

(1966)3 C.L.R. 793 at p. 799; Constantinou v. Republic

(1969)3 C.L.R. 190 at p.

1. Recourse Recourse against the decision of the respondent not to grant applicant pension/gratuity. L. Clerides, for the applicant. A. Vlademirou, for the respondent. Cur.adv. vult. A. LOIZOU J. read the following judgment. The applicant joined the Cyprus Police Force in
2. He was promoted to a Sergeant in 1968, Sub inspector in 1971 and an Inspector on the 10th July
3. Investigations, under the Certain Disciplinary Offences (Conduct of Investigation and Adjudication) Law, 1977 (Law No. 3 of 1977) were commenced, when the applicant heard about them and on the 6th March 1979 by letter of that date addressed to the Minister of Interior through the Chief of the Police (Appendix A), submitted his resignation to the Minister by letter of that date, (Appendix A) which reads as follows: ""Κύριε, Διά της παρούσης λαμβάνω την τιμήν να υποβάλω την παραίτησίν μου, την απόφασιν μου δε ταύτην την έλαβον κατόπιν ωρίμου σκέψεως και η οποία είναι αμετάκλητος. Οι λόγοι οι όποιοι με ώθησαν εις την απόφασιν ταύτην είναι οι άκόλουθοι:
4. Επληροφορήθην σήμερον ότι υφίστανται η διερευνώνται διάφοροι καταγγελίαι εις βάρος μου διά ενεργείας μου η πράξεις άποσκοπούσας εις την εδραίωσιν τού πραξικοπήματος. Εξ υπαρχής απορρίπτω ταύτας κατηγορηματικώς καθ' ότι πρόκειται περί ασυστόλων ψευδών και συκοφαντιών.
5. "Έχω την συνείδησιν μου καθαράν ότι ουδέν έπραξα καθ' υπέρβασιν εξουσιών. Γνώμη των πράξεων μου ήτο πάντοτε τό δημόσιον συμφέρον καΐ οι νόμοι της πολιτείας. Ουδέποτε ηθελημένως ή αθελήτως κατέστην όργανον οιασδήποτε πολιτικής ή κομματικής καταστάσεως. Κατά την μακράν μου υπηρεσίαν έδιδάχθην ότι ο αστυνομικός πρέπει να παραμένη μακράν των πολιτικών παρατάξεων, διά να δύναται να πράττη το καθήκον του εις το ακέραιον.
6. Κατά την διάρκειαν της 25ετούς υπηρεσίας μου εις την Αστυνομικήν Δύναμιν Κύπρου μόνον ευφήμους μνείας έτυχον εκ μέρους των Κυπριακών Δικαστηρίων, του Γραφείου του Γενικού Εισαγγελέως και των ανωτέρων μου. Ουδέποτε έτυχον της ελαχίστης τιμωρίας.
7. Τώρα η Κυβέρνησις διατάζει πειθαρχικήν εναντίον μου έρευναν βασιζομένη επί καταγγελιών ανυπόστατων. Μήπως αύτη είναι η αμοιβή προς τας πολλαπλάς υπηρεσίας τας οποίας μέχρι τούδε προσέφερον; Θά ήτο εύκολον να ισχυρισθη τις ότι δύναμαι να αντιμετωπίσω τας κατηγορίας και να αφεθή το θέμα να άχθη ενώπιον της Δικαιοσύνης. Αλλά ποία η πίστη μου προς αυτήν την κατεύθυνσιν η οποία ομολογουμένως εχει κλονισθή;
8. Δυσκολεύομαι πολύ να πιστεύσω ότι η Κυβέρνησις με αυτόν τον τρόπον κάμνει την κάθαρσιν των υπευθύνων του πραξικοπήματος, οι οποίοι είναι καλώς γνωστοί τόσον εις την Κυβέρνησιν όσον και εις τον λαόν μας. Μάλλον τείνω να πιστεύσω ότι η πράξις αυτή της Κυβερνήσεως ενέχει πολιτικές σκοπιμότητες, καθ' οτι παρέμεινα υπεράνω κομμάτων και ουδέποτε έγινα υποχείριος οιουδήποτε.
9. Δεν είναι όμως δυνατόν να δεχθώ η ανεχθώ να γίνω θέμα αυτής της καταστασεως και να διασύρεται το όνομά μου. Πληθώρα αξιωματούχων της Κυβερνήσεως ενήργησαν κατά τρόπον απαράδεκτον αλλά όμως εκαλύφθησαν υπό των Κυβερνώντων διότι εγένοντο μεταγενεστέρως υποχείριοι πολιτικών καταστάσεων.
10. Επιπροσθέτως ή προσωπική μου αξιοπρέπεια, τιμή και υπόληψις εθίγησαν εις τοιούτον βαθμόν, πράγμα το όποιον ή Κυβέρνησις ώφειλε να αποκαταστήση πάραυτα. Επειδή όμως δέν διαφαίνεται τοιαύτη προοπτική, ούτε πιστεύω ότι ή δικαιοσύνη θα λάμψη δεν μού απομένει άλλη εκλογή παρά να υποβάλω την παραίτησιν μου από το Αστυνομικό Σώμα και διά της παρούσης υποβάλω ταύτην αμετακλήτως". And in English it reads: "Sir, By the present I have the honour to submit my resignation, I took this decision after mature thought and it is irrevocable. The reasons which led me to this decision are the following: 2.I was informed to-day that there exist or there are investigated several reports against me for activities and actions of mine intended to consolidate the Coup d'etat. From the outset I reject them explicitly as they are unfounded and slanderous lies. 3.I have my conscience clean that I did nothing in excess of my powers. The cornerstone of my acts was always the public interest and the laws of the State. Never willingly or unwillingly I became the organ of any political or party situation. During my long service I was taught that the policeman must stay away from political parties in order to be able to carry out his duty to the full. 4.In the course of my 25 year service with, the Cyprus Police Force I had only favourable remarksby the Cyprus Courts, the Office of the Attorney General and my superiors. I never received the slightest punishment. 5.Now the Government orders a disciplinary investigation against me based on unfounded accusations. Is this my reward for the multiple services which I have until now offered? It would be easy for one to allege that I may face the accusations and leave the matter brought before justice. But what is my faith to that direction which admittedly has been shaken? 6 It is difficult for me to believe that in this way the Government makes the purgation of those responsible for the Coup d'etat; who are well known both to the Government and to our people. I am rather inclined to believe that this act Of the Government has political expediencies as stayed above parties and I never became an instrument of anybody. 7.It is not possible for me to accept or offer to become a victim of this situation and have my name smeared. A plurality of officials of the Government acted in an unacceptable way but they have been covered by those in power because they became subsequently instruments of political situations. 8.In addition my personal integrity, honour and responsibility have been offended to such a degree, an act which the Government ought to reinstate immediately. As, however, no such, prospect appears nor do I believe that justice will shine, I am left with no other choice but to submit my resignation from the Police Force and by this I submit same irrevocably". The Chief of Police forwarded On the same day the aforesaid resignation to the Minister of Interior by letter of that date (Appendix B) and his comment therein is that as it is obvious in order to avoid disciplinary prosecution under the Law about purgation given that this is a voluntary submitted resignation, it is recommended that it be accepted. The applicant joined the Force in 1954, he has to his credit 116 days leave of absence". The Minister approved the said resignation, obviously acting under section 13

(2)of the Police Law, Cap.

1. This decision was communicated by letter dated 7th March 1979 (Appendix C) to the applicant through the Commander of the Police Training School where he was serving at the time, who was informed that the applicant could leave the Force as from the 17th July 1979 after enjoying the leave of absence of 124 days to which he was entitled. He was also asked to see that the Government property, uniforms, equipment, etc, issued to the applicant should be returned. The resignation of the applicant wasalso published in the Weekly" Orders 30/
2. The applicant by letter through his lawyer addressed to the Director-General of the Ministry of Interior, dated 10th December "1980, (Appendix D), asked that he be given pension or gratuity by virtue of regulation 45 of the Police Law and Regulations. I need not reproduce this letter of counsel for the applicant as in effect it contains the hat denial of the applicant of any complicity in the Coup d'etat and also the legal basis upon which this recourse has eventually been argued before me to which I shall be shortly referring. Suffice it, however, to say that in paragraph 3 thereof it is stated that when in March 1979 he was informed that an investigation was carried out against him regarding a probable excess of authority by him during the treacherous I Coup d'etat, on account of sensitivity (λόγω ευθιξίας) he was compelled to submit his resignation in order to avoid any agitation which inevitably would be created with regard to his name and that since his resignation he practices the profession of an advocate in Nicosia. The reply to this letter of counsel, given on behalf of the Director of General of the Ministry of Interior, is to be found in his letter dated 30th July 1981 (Appendix E), which reads: "I have been instructed to refer to your letter dated 10th December 1980 with regard to the ex-inspector KyriacosDanos and to inform you that under the Law no pension/ gratuity can be paid to Mr. Danos". This is the communication of the sub judice decision which is challenged by this recourse. The first ground of Law relied upon by the applicant is that his resignation was not a, voluntary but a compulsory one, that regulation 45 of the Police (Discipline) Regulations, 1958 to 1977 applies and that the cases of Constantine v. The Republic

(1966)3 C.L.R. p. 793 at p. 799 and Constantine v. The Republic

(1969)3 C.L.R. p. 190 at p 207 are helpful. In these two cases it was held that the notion of compulsory retirement as used in paragraph (

1. c)of the relevant definition in section 2 of the Dismissed Public Officers' Reinstatement Law, 1961 (Law No. 48 of 1961), was not intended to be understood only in the narrow technical sense of section 8 of the Pensions Law, Cap. 311, but was intended to include cases where an officer has been compelled by political reasons to seek permission to retire without being formally required to do so and that by analogy the same interpretation should be given to regulation 45. Regulation 45 reads as follows: ""Εις περίπτωσιν καθ' ήν η δυνάμει των παρόντων Κανονισμών επιβληθείσα εις μέλος της Δυνάμεως ποινή δια πειθαρχικών αδίκημα είναι η της υπό του εκδικάσαντος το άδικη μα απαιτήσεως προς το μέλος διά παραίτησιν, η συνεπεία της τοιαύτης ποινής παραίτησις του μέλους θα θεωρήται, διά σκοπούς συντάξεως, ως τερματισμός υπηρεσίας προς το δημόσιον συμφέρον και δεν θα αποστερή το μέλος του δικαιώματος του διά σύνταξιν χορηγουμένην επί της ρηθείσης βάσεως του τερματισμού υπηρεσίας προς το δημόσιον συμφέρον". In English it reads "In case the punishment imposed by virtue of these Regulations on a member of the Force for a disciplinary offence is the one of requirement to resign, the resignation of the member arising as an result of such punishment will, for purposes of pension, be considered as termination of services in the ,public interest and will not derive the member of his rights to pension granted on the said basis of termination of services in the public interest". It is clear from its wording that this regulation applies in the case where for a disciplinary offence the punishment imposed is that of "requirement to resign". I such case the resignation of the member resulting from such punishment is deemed by the regulation itself as termination of services in the public interest and gives to such member such rights to pension as are given by sections 6 and 7 of the Pensions Law, Cap.311 as amended. Consequently regulation 45 invoked on behalf of the applicant in the present case does not apply, even if I were to hold, which do not, that the resignation of the applicant was not a voluntary but a compulsory one, because the prerequisite of resignation required as a punishment in disciplinary proceedings does not exist in this case. Moreover the carrying out of investigations under the aforesaid Law No. 3 of 1977 does not satisfy theseexpress and clear prerequisites for the application of this regulation. As far as the approach in the case of Constantinou v. The Republic (supra) is concerned, the simple answer is that these cases turned on theinterpretation of a particular Law and can have no bearing in the case before us, even if I were to consider that the circumstances under which the applicant resigned amounted to what has been on his behalf as a compulsion, which I do not. The reasons for finding that his resignation was one made on his own free will is that this is apparent from the very wording of his own letter of resignation and the circumstances under which it was submitted. To my mind the commencement of investigations could not in the circumstances be held to constitute in Law compulsion that brought about his resignation. Furthermore it should not be ignored that the applicant was a police officer and a qualified advocate and by virtue of his training and qualifications he could not but have full knowledge of his legal rights and in particular of the principle that everyone is presumed to be innocent until proved guilty. The second ground of Law argued on behalf of the applicant is that the subject decision constitutes a violation of the rules of good administration and/or natural justice inasmuch as same was taken when the Council of Ministers had already approved a bill for the amendment of the Pension Law, and which bill was enacted as a Law on the 17th July 1981 by virtue of the provisions, by which the applicant even if he left voluntarily their service he would have been entitled to, a pension and gratuity. This is the Pensions (Amendment) (No. 2) Law of 1981 (Law No 39 of 1981) This Law was published on the 17th July 1981. By section 6 of this Law, section 7(
2. c)is added to the basic Law and provision is made for the payment of pension or gratuity, A under certain circumstances to officers holding pensionable offices who wish to retire earlier than their retiring age. As already indicated this amendment came into force more than two years and three months after the resignation of the applicant from the service. It has no retrospective effect and there is nothing to warrant the contention that the nonpayment of pension or gratuity to the applicant constitutes a violation of the principles of good administration and/or natural justice, whatever these contentions may mean in relation to the circumstances of this case. Finally the argument on behalf of the applicant that there has been a violation of the principle of equality, recognized by Article 28 of the Constitution inasmuch as other public officers who had actively participated in the Coup d'etat and whose services were terminated by virtue of Q section 6 of the Pensions Law, Cap. 311 were given full pension and gratuity, cannot stand as same has not been substantiated in any way so as to make a comparison of their similarities that could justify equal treatment and furthermore. on the basis of what is alleged these are different situation in as much as the applicant had himself resigned and section 6 of the Law provides for the circumstances for which pensions may be granted, which as it stood at the time of the applicant's resignation it did not cover his case. For all the above reason this application, is dismissed but in the circumstances I make no order as to costs. Application dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο