ASTREOS ν. REPUBLIC
(1986)3 CLR 2604 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 2604 1986 January 18 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION NEOPTOLEMOS ASTREOS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE COUNCIL OF MINISTERS, Respondent. (Case No. 354/82). Pensions and Gratuities -Public Officers -Compulsory retirement of, as a disciplinary punishment-Discretion of Council of Ministers to grant retirement benefits-Section 79
(6)of the Public Service Law 33/69-Burden of proving that the discretionary powers were wrongly exercised or that the Council exceeded their outer limits- Rests on the applicant. The applicant was a messenger in the public service. On 5.10.81 he was convicted and sentenced by an Assize Court to eighteen months' imprisonment for various offences, including stealing of two cheques, forgery and obtaining money by false pretences. As a result the respondent Commission imposed on the applicant the disciplinary punishment of requirement to resign. The Council of Ministers decided not to approve the grant to the applicant of retirement benefits (Section 79
(6)of Law 33/67 making applicable the provisions of the Pensions Law, Cap. 311 relating to retirement benefits on termination of service in the public interest). Hence the present recourse. Held, dismissing the recourse, that the burden of proving that the Council of Ministers has exercised wrongly its discretionary powers or it has exceeded their outer limits rests on the applicant, who has failed to discharge it, and that, bearing in mind the nature of the aforesaid criminal offences, the sub judice decision was reasonably open to the respondents. Recourse dismissed. No order as to costs. Recourse. Recourse against the refusal of the respondent to approve the grant to applicant of retirement benefits upon his compulsory retirement from the Public Service. C. Anastassiades, for the applicant. N. Charalambous, Senior Counsel of the Republic, for the respondent. Cur.adv. vult. TRIANTAFYLLIDES P. read the following judgment. By means of the present recourse the applicant challenges the refusal of the respondent Council of Ministers to approve the grant to him of retirement benefits upon his compulsory retirement from the public service. The applicant was holding the post of a messenger in the public service until the 5th October 1981 when he was convicted, by an Assize Court in Nicosia, to eighteen months' imprisonment after he had pleaded guilty to various offences including the stealing of two cheques, forgery and obtaining money by false pretences. As the offences committed by the applicant involved dishonesty the Public Service Commission, after affording him an opportunity to be heard, under section 82 of the Public Service Law, 1967 (Law 33/67), imposed on him, on the 22nd March 1982, the disciplinary punishment of compulsory retirement from the public service as from the date of his conviction by the Assize Court. Section 79
(6)of Law 33/67 provides as follows: «Επί τη αναγκαστική αφυπηρετήσει εκ συνταξίμου θέσεως εφαρμόζονται αι διατάξεις του εκάστοτε εν ισχύι περί Συντάξεων Νόμου αι αφορώσαι εις ωφελήματα αφυπηρετήσεως επί τω τερματισμώ υπηρεσίας προς το δημόσιον συμφέρον.» "(
(6)On compulsory retirement from a pensionable office, the provisions of the Pensions Law for the time being in force in relation to retirement benefits on termination of service in the public interest shall apply"). Under the relevant provisions of the Pensions Law, Cap. 311, the grant of retirement benefits in a case such as the present one is left to the discretion of the Council of Ministers. The Council of Ministers, by its decision No. 21.778, dated the 20th May 1982, decided not to approve the grant to the applicant of retirement benefits and this decision was communicated to the applicant by a letter dated the 19th June 1982, which was received by him on the 29th June
- The present recourse was filed on the 3rd September
- It has been argued by counsel for the applicant that in view of the circumstances of this case, and particularly of its humanitarian aspect, the Council of Ministers in refusing to approve the grant to the applicant of retirement benefits has exercised its discretionary powers under Cap. 311 in an inequitable manner. Counsel for the applicant has conceded, however, that the Council of Ministers has wide discretionary powers in a matter of this nature, but he has submitted that the less onerous for the applicant course should have been adopted by the Council of Ministers. The burden of proving that the Council of Ministers has exercised wrongly its discretionary powers, or that it has exceeded their outer limits, rests, in a case of this nature, on the applicant, who has failed to discharge it. Not only I have not been persuaded that there exists any valid reason justifying the annulment of the sub judice decision, but, on the contrary, bearing in mind the nature of the offences of which the applicant was convicted, I must hold that the sub judice decision was reasonably open to the Council of Ministers. In the result the present recourse fails and it is dismissed accordingly; but with no order as to its costs. Recourse dismissed. No order as to costs cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο