PIPERIDOU AND OTHERS ν. REPUBLIC (1986) 3 CLR 2404

(1986)3 CLR 2404 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

(1986)3 CLR 2404 1986 November 28 [SAVVIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDROULLA PIPERIDOU AND OTHERS, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF HEALTH, Respondent. (Cases Nos. 561/84, 562/84 and 563/84). Executory act-Confirmatory act-Informatory act -Decision taken in 1979 to discontinue payment of overtime allowance-Known to applicants as such allowance was discontinued as from 1.1.80-Application for payment of the allowance made in 1984-Rejection of application-No new decision on basis of new facts and after new inquiry reached-Perusal of letter in reply shows content to be informatory and confirmatory-Recourse out of time. By similar letters dated 2.2.84 addressed, through their counsel, to the Minister of Health, the applicants, who are Government nurses, contended that they were entitled to overtime allowance and claimed payment in respect thereof. By letter dated 7.8.84 the Director-General of the Ministry of Health replied that "overtime allowance is paid only to nursing staff working on the system of shifts in Hospitals", that "in no case staff of a rural health centre has been paid overtime allowance" and, moreover, referred to the fact that the "Branch Committee of the Nursing Staff Union was informed by the Ministry of Health in 1979 that the nursing staff of R.H.C. of Evrychou is not entitled to overtime allowance" and finally referred to the minutes of a meeting between representatives of PA.SY. DY. and the Ministry of Health dated 29.9.82. Hence the present recourse. What emanates from the allegations of Counsel for the applicant and the facts set out in their applications is that the applicants were regularly paid overtime allowance till 31.12.79 and that thereafter such allowance was discontinued. Held, dismissing the recourse:

(1)The decision that nursing staff working at Rural Health Centres at which no in-patients were accepted would not be entitled to overtime allowance was known to the applicants from the fact that as from 1.1.80 the relevant payments were discontinued.

(2)A perusal of the letter dated 7.8.84 shows that no new decision was taken after a new inquiry into the matter on the basis of new facts. The letter is informatory in character as to what happened in 1979 and confirmatory of the earlier decision.

(3)As the applicants failed to challenge the decision to discontinue the payments within the period of 75 days from such decision, they do not have a legitimate interest to file this recourse. This matter, though not raised by counsel, is one that can be examined ex proprio motu. Recourse dismissed. No orders as to costs. Observation by the Court: It is the duty of Counsel when relying on legal grounds to state in concise manner in what respect there is a violation of the Constitution or the law and. also, when stating the facts, to give a short summary of the facts and not refer the Court to documents already filed which the Court will have to examine for the purpose of finding out which of such facts are material. When citing cases of this Court, counsel should make reference to the Cyprus Law Reports, and not to the J.S.C., which were provisionally issued till the reports are printed in their official form. Cases referred to: Mitidou v. CY.T.A.

(1982)3 C.L.R. 555. Recourses. Recourses against the refusal of the respondent to pay overtime allowance to applicants. F. Solomonides, for the applicants. R. Gavrielides, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. SAVVIDES J. read the following judgment. By these recourses which were heard together as presenting common questions of law and fact, the applicants pray for the following relief: (

1. a)A declaration of the Court that the decision of, the respondent contained in the letter dated 7.8.1984 whereby the applicants were refused payment of overtime allowance, is null and void and of no legal effect (
2. b)A declaration of the Court that the omission of the respondent to pay to the applicants special overtime allowance for the periods in respect of applicant in Case No. 561/84 as from 1.1.80 till 7.8.82, for applicant in Case No. 562/84 as from 14.4.80 tilt 13.1.83 and in respect of applicant in Case No. 563/84 as from.1.1.80 till 31.12.83 is null and void. (
3. c)Am order of the Court directing the respondent Minister to produce before the Court a detailed statement of the overtime periods worked by the applicants at Evrychou Hospital. (
4. d)A declaration of the Court that the sub, judice decision of the respondent was, taken in excess and or abuse of powers and that it is not duly reasoned. The legal grounds on which the recourses are based are stated in a brief and vague way without precision in what respect such, grounds are applicable and they are verbatim as follows: "(
5. a)Articles 146 and 28 of the Constitution. (
6. b)Abuse of power." The applications were opposed and the ground of law set out in support of the opposition, is that the decision is lawful and that the applicants are not entitled to an overtime allowance. Counsel for the respondents made the following brief endorsement as to the facts of the case. "The facts of the case appear in the correspondence which is attached to the application." Pausing here for a moment, I wish to comment on the way that both the legal grounds in support of the recourse as set out in the application, as well as the description of the facts as set out in the opposition were described by counsel'. It is the duty of counsel when relying on legal grounds to state in a concise manner in what respect there is a violation of the Constitution or the law and, also, when stating the facts, to give a shot summary of the facts and not refer the court to documents already filed which the court will have to examine for the purpose of finding out which of such facts are material. In this respect I wish to reiterate once again my comments m Mitidou v. CY.T.A.

(1982)3 C.L.R. 555. at pp. 571. 572 as, fellows: " I wish to remark that in administrative recourses the legal grounds on which both the application and the opposition are based, must be stated precisely and concisely to enable the reader to understand' in the first instance, what is the issue in case leaving full argument and exposition of the law at the hearing." The facts of the case are briefly as follows: The applicants are Government nurses and during the material times in respect of which they claim overtime allowances, they were working at Evrychou hospital. By similar letters dated 2.2.1984 addressed to the Minister of Health by counsel on their behalf, they contended that they were entitled to overtime allowance as per (

1. b)of their application and claimed payment in respect thereof as "compensation or emoluments to which they are entitled under the law and/or the regulations." By letter dated the 7th August, 1984, the Director-General of the Ministry of Health replied to the applicants that their claim could not be satisfied for the following reasons: "(
2. a)Overtime allowance is paid only to nursing staff working on the system of shifts in Hospitals that is, where patients are kept for treatment. In no case staff of a rural health centre has been paid overtime allowance. Your clients were working in the R.H.C. of Evrychou where during the period, in respect of which they claim overtime allowance, no system of shift work existed and from the material which we have for the last five years, no patient has ever been kept overnight. (
3. b)The Branch Committee of the Nursing Staff Union was informed by the Ministry of Health in 1979 that the nursing staff of the R.H.C. of Evrychou is not entitled to overtime allowance. Once the Branch Committee was informed, it should have reacted then, if it did not agree with the explanations given. Nevertheless, three years later and in particular on the 21st July, 1982, they brought up again the matter of overtime allowance. (
4. c)After the matter was brought up again, it was discussed at a meeting which took place on 29.9.82 between representatives of PASYDY and the Minister of Health. The decision appears in the following extract of the minutes: Over time allowance. (
5. a)Nurses of the Rural Health Centre of Evrychou. After an exhaustive discussion of the subject on the basis of the real facts and in particular the fact that the nurses of the Rural Health Centre of Evrychou for three years after the decision that no payment of overtime allowance was payable, submitted no application for the payment of any allowance and continued to stand by for overtime duties, it has been agreed that PASYDY will consider the proposal of the General Secretary Mr. Iacovou according to which the payment of overtime allowance might be considered favourably as from the day when such claim was submitted'. " It is the decision contained in this letter that is being challenged by the present recourse. By his brief written address, counsel for the applicants in setting out the facts, contended that the applicants, at the material times, according to the law, the regulations and the orders in force, were bound to work 37 hours per week and that any work or service rendered by them in excess either by way of shift or otherwise as nurses, in any Government Hospital or Rural Health Centre, was overtime work in respect of which applicants were entitled to overtime allowance. It is further contended that the applicants worked during nights, holidays and Sundays for periods in excess of their normal hours of duty for which they were entitled to overtime allowance. The refusal of the respondents to pay such allowances to the applicants, is, in the submission of their counsel, unjust, arbitrary and illegal and should be dismissed for the following grounds of law of which I need not make a brief summary, because they are already so briefly and vaguely stated, that it suffices if I set them out as stated in the address of counsel. "Legal grounds: Articles 146 and 28 of the Constitution. 1. Contract Law, Cap. 149. 2. Ubi Jus Ibi Remedium (where there is a right there is a remedy). 3. 1964 5 J.S.C. p. 9 at p. 14. Boyadjis v. Republic of Cyprus. 4. Government General Orders and Circulars then in force (i.e. the 15th August, 1960). 5. J.S.C. Case No. 113/79 Savvas Tamattiris v.

(1)Minister of Ulterior and others)." No explanation is given in what respect the various legal grounds, which are enumerated in his address apply n these cases and I wish to repeat once again that when counsel make reference to decided cases of this Court they should make reference to Cyprus Law Reports where they are properly reported and not to the publications of such judgments in the J.S.C. provisionally issued till the sports are printed in their official form. Counsel for the respondent on the other hand, by his written address which covers about half a page, submitted that the recourse should be dismissed, as the applicants ailed to point out any particular law, regulation or order on which their claim is based. Furthermore, that if the applicants complaint is that the Republic was "unjustly enriched" as a result of any services rendered by them, they could institute civil proceedings for damages, for unjust enrichment. By his written address in reply counsel for the applicants submitted that the applicants are entitled to their claim under section 37" of the Public Service Law (No. 33/67 and. in particular, the provision that an offer upon appointment should mention the terms, of service and that terms of service include according to section 53, the salary and such other allowances as may be defined, Counsel further added that under Circular No. 4.92 of the Ministry of Finance dated. 2.4.1979, with retrospective effect as from 1.1.1979, the terms, and conditions regulating overtime allowance for work on Sundays, public holidays and night shifts have been approved by the Council of Ministers. Counsel further Contended that the applicants prior to and till the time they, were transferred to the Rural Health Centre of Eyrychou were paid such overt me allowances for night duties, until the 31st December,

1. What emanates from the allegations of counsel for the applicants and the facts set out in their applications is that the applicants were regularly paid overtime allowance till the 31st December, 1979 arid then such allowance was discontinued. The reasons for such discontinuance were communicated to the Branch Committee of the Nursing Staffs Union in 1979 and are reiterated to the minutes o the meeting between representatives of the PASYDY ant the Minister of Health, extracts of which are set out in the letter of the Director-General of the Ministry of Health dated the 7th August,
2. The decision that nursing staff working at Rural Health Centres at which no in-patients were accepted and which did not operate as Hospitals in the proper sense, that is Hospitals at which in-patients were kept for treatment which necessitated the maintaining of night shifts of nursing staff, was known to the applicants from the fact that a from the 1st January, 1980, no overtime allowance was paid to them. The applicants never challenged such decision" within the time limit of 75 days and raised a claim in this respect 4 years later, by the letter of their counsel of the 2nd February, 1984 to which the reply of the 7th Air gust, 1984 was received. A perusal of the contents of the letter of the" 7th August, 1984 clearly shows that no new decision is contained therein after a new inquiry into the matter on the basis of new facts but the letter is merely of an informatory character supplying information as to what happened in 1979 and thereafter and confirmatory of the decision of the pondent that no overtime allowance was to Be paid nursing staff in Rural Health Centres of which the applicants had express or implied knowledge. In the light of the above P have come to the conclusion that the applicants have no legitimate interest to file the present recourse as they have failed to challenge the decision of the respondent for discontinuance of payment of overtime allowance within the period of 75 days from the time when such decision was taken and came to their knowledge. Though this matter has not been raised by counsel for the respondent, it is a matter which the Court can take up ex proprio motu. In the result, these recourses fail and are hereby dismissed. There will be no order for costs. Recourses dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο