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1 9 6 6 IVASSU.IAOLS. TRIANlAI-VLLint'S, MlJNIR, JJ.l A p r i l , 14, ^ ' 'Im jQ T H E ATTORNEY-GENERAL O F ΤΗΓ: REPUBLIC, Appellant, AnoRNn- V. Ci' N n i A L OI Mil Rl.l'Utit.K n. A N D R E A S A. MA

the pro­ 172 "/ the -To Constitution— to he awarded to the "person aggrieved "' hy such acts or decisions so declared to be null and void as afoicsaid in paragraph Meaning f> of Article and efject 146 — Principles of those defendant in such proceedings i.e. in such action dvil Court

the aforesaid of '* just and equitable .such damages -In assessing the Administration paragraph damages decision such damages Measure of the culpability of of the "person the instant of the person so aggrieved by the annulled Article J46 was found to have been greater than the culpability of the Republic acting through its organ viz. the Public Service mission Therefore, considerably awarded reduced- Principles laid Council of state in its decision (arret) were down case administrative on a recourse

the damages hi a 6 for the recovery as well as the culpability as subsequently -Proper instituted as aforesaid- aggrieved " should be taken into account—In the culpability words applicable Com­ accordingly hy the Trench Deberles of the 7th April 1933, a p p l i e d — A n d in a case like the present one, where the administrative decision, annulled 146 of the Constitution, Commission, acting within and 125 of the Constitution, employee 4 of by the Public its competence Article Service

Articles 122 of the service of respondent I,a clerical of the Electricity 2--The matter

paragraph is the termination Authority of Cyprus, must be dealt with without of master and servant the proper defendant in such proceedings for damages as afore­ said is only the Republic relating respondent reference to the law to wrongful of Cyprus—To 242 dismissal—And the exclusion of the Public Service Commission, Ami to the exclusion, Cyprus, which is not a juridical as well, of the Electricity notwithstanding Commission t'um of the l.leciricity Authority is that of the Public Ser\ice competence

Articles And which Commission Commission, Authority acting within the aforesaid Organ authority or t 16, paragraph 6 of the Constitution. Liability—Liability, paragiaph person inter alia, of the Republic 6 of the Constitution- the liability or THE REPUBLIC D. recommen- 146, paragraph of the Republic could 6 of the

Article unite

Article 146, distinct 172 *;/ the Constitution.

Llectriiiiy Authority of Cyprus- Employees said Authoiity--Termination decision of the Public competime Service

Articles Ih'cis'htn siibsapieiit/y Commission taken into for damages goxeined 6 of the Constitution- servant relating

--Principles account —Principles to wrongful Constitutional Practice—Action and for damages the Constitution—Proper

Constitutional thority, above. Republic—-Liability dismissals, law equitable Law and also, above. 146 paragraph defendant—Joinder and Administrative to be master irrelevant—See. Administrative

Article of by Proceedings applicable—Factors of the of the Republic—Articles 172 of the Constitution— irtnle Court could only be instituted against the Republic —"Just and damages "--Assessment its 4 of by flic Supreme Constitutional 146, paragraph by within Constitution--

paragraph Chum of fhe person st> aggrieved Article acting 122 and 125 of the annulled M<> of the Constitution in the Service of the of service of such employee of 6 of parties—See Law, Electricity Au- 146, paragraph 6, See above. Paragraphs 1,4 and 6 o f A r t i c l e 146 o f the C o n s t i t u t i o n provide: " I . The Supreme Constitutional Court shall have exclusive j u r i s d i c t i o n l o adjudicate f i n a l l y o n a recourse made l o it o n a c o m p l a i n t that a decision, an act or omission o f any o r g a n , a u t h o r i t y o r person exercising any executive 243 ANDRFAS A.MARKOULLIDES AND concerned ' • -Such liability Thh AITORNCYGt-NtRAL its it: the Vherefore, in the instant case the Republic only Constitution—" of is not binding on the Com- Artitle 1966 April, 14, May, 10, June, 30 retommenda- 122 and 125 of the Constitution — he suet/ for damages

from on the of decided -The decision complained Republic and for the Republic- -And Article was is a state organ, functioning dation of the Electricity mission- Authority that the said dismissal upon h\> the Public Service person- ANOTHER April, 14, May, 10, June, 30 or administrative authority is contary to any of the provi­ sions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person ". THF AlTORNEYGfNFRAL '"4. Upon such a iccourse the Couil may, by its decision- 4)1 III)- Rri'URLIC O. ΛΝORI AS A.MARKOUI LIIW.S AND A NOΓΙΙΙ Η (

  1. a)confirm, either m whole or in part, such decision or act or omission ; or (Λ) declare, either in whole or in pari, such decision or act lo be null and void and of no effect whatsoever ; or (
  2. c)declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omiiied should have been performed ". " 6 . Any person aggiicved by any decision or act declared to be void

paragraph 4 of this Article or by any omis­ sion declared thereunder that it ought not lo have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, lo insU'ute legal pioccedings in a Court for the recovery of damages or for being granted other remedy and to recover just and equit­ able damages to be arssessed by the Court or to be granted such other just and equitable remedy as such Court is em­ powered to grant ". Article 172 of the Constitution provides : "172. The Republic shall be liable for any wrongful act or omission causing damage committed in Ihc exercise or purported exercise οΐ the duties of officers or authorities of the Republic. A law shall regulalc such liability " . Paragraph 1 of Article 125 of the Constitution piovides : " I. Save where it shall be the duty of the Public Service Commission to make the allocation and to appoint, and exercise disciplinary control over, including dismissal or removal from office of, public officers". And by Article 122 of the Constitution "public officer" means "the holder of a public office"; And "public office " means "an office in the public service"; and "pub­ lic service" means "any service

the Republic and includes service

the Cyprus Broadcasting Corpo­ ration, the Cyprus Inland Telecommunications Authority and the Electricity Authority of Cyprus". 244 It should be noted that undei section 57 ol the C o u i t s ot Justice Law, I960 (Law of the Republic N o . 14 of I960) actions by and against the Republic should be instituted by and against the Attorney-General of the Republic 1966 April, H, May, 10, June, 30 T H E ATTORNhY- Respondent 1 was in Iebruaiy 1961 a clerical employee of the Flecinuty Authonly of Cyprus, respondent 2 On the 2nd February, 1961, respondent 1 was transferred to Kakopetri.i as from the 1st Maich, 1961 Respondent 2 by his letter ot the l>th Kebruary 1961 lefused lo accept his said trunsfei. On the 16th l-ebuiary, 1961, the Authority, respondent 2, replied to this letter ol respondent I informing htm dial unless he complied with his instructions as to the transler, lie was liable to be dismissed On the same day the I Icctncily Aulhonly, icspondent 2, wrote to the Public Service Commission infoiming il ot the position and asking 11 lo taLt d i s u p h i . t i v action against respondent I The Commission vviote lo icspondent 1 on the 3rd Match, 1961, asking him to appeal bcloic the Commission to explain the reasons foi his relusal to comply with the transfer Respondent I tailed to lepoit loi duly on the 1st March, 1961, at K a k o p e t n a or at a\tx/ lime thereafter and on the 8th March, 1961. he appealed b d o i e the Public Service Commission and was questioned in itspcci ol his refusal to lake up duty at K a k o p e t n a I h c Commission considered the matter and decided that the tiansler was ic.isonablc and that he (respondent I) slmu'd lake up duties at K a k o p e t n a l( informed lespondciil 1 ol ils decision iheie and then, wheieupon respondent 1 categorically slated to the Commission that he was unable to piocced to K a k o p e t n a . On the same d.iy, v i ' the Nth March. 1961 the Public Service Commission considered the said rctus.it of icspondent I lo proceed to K a k o p e t n a in accordance with its decision set out above decided (hat he should be dismissed forthwith. On the same dav a letter ol dismissal was sent to respondent I On the 4ili Apnl, 1961, respondent 1 filed a recourse

Athcle 146 vf the Constitution against the Republic t h i o u g h the Public Service Commission challenging his said transfer and dismissal The Supreme Constitutional C o u r t delivered judgment in that recourse on the 29th January, 1962 (see 3 R S C.C 30) whereby Ihc decision of the Public Service Commission, lo transfer the then applicant (now respondent I) was i o n f n m e d , but its decision to dismiss him was annulled as h a u n g been taken in a manner incompatible with the pnnciples of naluial justice. 245 GENERAL OF THE REPLBLIC D ANDREAS A MARKOULLIDES AND ANOTHER r A p r i l , 14, May, 10, June, -Ϊ0 THE AnoiiNbYGENERAL OK l l l l REI'UIILIC i>. ANDRHAS On the 31st January. 1962, respondent 2 wrote to respon­ dent I, stating that he was required to take up duties at Kakopelria as from the 5ih February, 1962, respondent 1 did so. Respondent I as from the 1st March, 1961, to the 5th February, 1962, failed to render any services to the Autho­ rity, respondent 2, at Kakopetria, where he had been trans­ ferred ; nor did at any lime offer to render any services to respondent 2 at Kakopetria during that period. A. MARKOULLIDES AND ANOTHFR On the 20th February 1962, respondent I filed, as plaintiff action No. 752/62 in the District Court of Nicosia against (I) The Electricity Authority of Cyprus (respondent 2)

(2)The Public Service Commission and
(3)The Attorney-Ge­ neral of the Republic (i.e. against the Republic v. supra) as defendants. He claimed damages for the termination of his services, as subsequently annulled by the Supreme Cons­ titutional Court as aforesaid. The trial Court dismissed the said action as against the Public Service Commission (holding that the Commission not being an independent juridical person, cannot be held liable as such), as well as against the Electricity Authority (respondent 2), and gave judgment for £849.778 mils with costs against the Republic (i.e. against the Attorney-Ge­ neral of the Republic, now appellant)

Article 172of the Constitution (supra).

The said amount of £849.778 mils represents the salary and bonuses that would have been received by the plaintiff-respondent 1 during the period he remained out of the service of respondent 2 (viz. the period 1st March I96l-5th February, 1962), had his services not been terminated by the Public Service Commission as aforesaid. The Atlorney-Ceneral of the Republic now appeals against Ihat judgment of ihe trial Court and the Supreme Court, in allowing the appeal : Held, (I) (

  1. a)the first issue which arises for determination in this appeal is whether or not it was open to the trial Court to give judgment, in a case such as the present one, against the Republic on the basis of Article 172 of the Constitution (supra). (
  2. b)Once the termination of the services of the respondent 1 was a matter within the competence

Article 146

of the Constitution and, moreover, such termination had been annulled by means of a recourse filed

the said Article, 246 theie was no question ol proceeding against the Republic at all

A r t i c l e 172 ol the C o n s t i t u t i o n (supra), icmctly open to respondcnl I was undci A r t i c l e 146 ot the C o n s l i l u i i o n (supra) but the paragraph 6 ot Ϊ his V K W IS a m p l y s u p p o i i c d hy lhe j u d g m e n t ol the Supreme C o n s t i t u t i o n a l C o u r i in the ease r\\riakidc\ and the Republic I, RSCC 66 at ρ 74, w h i c h j u d g m e n t was c o n f i r m e d in the above respect b> the Supreme C o n s t i t u t i o n a l I ruin in and the Repub/u 4 RSCC 1966 April 14, May, 10, ' lunc, 30 C o u r t i n the case •HI AITOIINEYGENERAL OI- THE REPUBLIC η ANDRLVS A MARKOULLIDES 121, at ρ 124 AND

(2)(a) T h e correct view is that an action as the one. tinder A i t i c l e 146 p a i a g i a p h 6 o f the picsent Constitution (supra) cannot be h i e d against respondent 2 (the Clecincitv A m h o t i U ) and that the Republic was the onl> p i o p e i defen­ dant in ihc matter (/>) Undet paragraph 6 ol A i l i c l e 146 (supra) legal pro­ ceedings may be i n s t i t u t e d , il the claim ot ' p c i s o n a g g r i e v e d " by a dec SIOP w i n c h has been deelated t o be v o i d in a i c e o u i se undci >tieli A i l i c l e is not mcl l o his satisfaction I n oigtn Ihe imhonlv whole or pcison conecnied cotilcxi ol Afticle In 146, and the ihc tight ol bearing also in niui.l i l l ti in cs eiiei p a i i g i a p h 6 ol Ihc said A i l i J e is an i n d e m n i i n atum p u n i s i o n l o i m m g part ol the scheme ot A i t i ­ cle 146 we came to the conclusion that the oruan n l \ οι pcison eoneenicd ' must mean the o i g a n auiho- authont\ or poison the decision ol winch has been annuMcd

p a n g i a p h 4 o l A i i n l e 146 (supio) w i t h the icsult o l enmg use to a claim u n d t i p a r i g n p h (> o f the said \ r t i c l e 146 ( ( ) In ihe piesk.nl instance ihe lei m i n a l i o n ol Ihe >ciwccs ol respondent I ν as decided upon by the Public Suwce C o m m i s s i o n and it is the decision ol the C o m t m s ion w h i c h was dceiated to Com ι be void by the Supreme Constitutional I t is such decision w Inch has i c n d e r e d respondent I ' peison aggrieved " m the sense o f A r t i c l e 146, p.iiagi.iph 6 (supia) it is i h c r e l o r e , against the Republic that the c l a i m o l lespondcnl I undci p a i a g i a p h 6 o f A i t i c l e 146 lies in \ic\v ol ihc h i t that the Public Service C o m m i s s i o n is a state o i g a n l u n c l i o m n g in the Republic, t o i the Republic (*) (a) Wc consider as lan-cl) i n c l e v a n t the law o f master and s i i \ m i in .ι case such as the present one , wc are c o n ­ cerned here w i t h ihe c l a i m of a citizen, respondcnl 1, damages because o f ihc public oigan for consequences o f a decision ol a the Public Service 247 Commission— which de- ANOTHER 1966 April, 14, May, 10, June, 30 a- ATIORNIIVGENI-KAI. T i l l · Rl:PUI»Lll* IK ANDHIAS MARKOULUDES AND ΛΝΠΤΙΙΓΚ cision has been declared, on recourse

Article 146

, to be void ; such claim is not based on the law of master and servant at all, but on his right to make such claim as provi­ ded for by paragraph 6 of Article 146 of the Constitution (supra). (b) Nor is it material that when the services of respondent 1 were terminated by the Public Service Commission, he was in the employment of the Electricity Authority of C y p r u s respondent 2—or that such termination was recommended by the said Authority -respondent 2—lo the Commission. In terminating the services of respondent 1, the Commission was exercising a constitutional function given lo it

Ariicle 125 of the Constitution (supra) ; though such funclion was being exercised wilh an employee of respondent 2 as its subject mailer and though the recommendations of the said respondent was a factor to be duly taken into account, nevertheless, the said function was being exercised as pari of the constitutional structure, for the purposes of the Stale and on behalf of the Republic, and not of the Electricity Authority of Cyprus, respondent 2 : also the ultimate decision lay only with the Commission, because the recommendations of respondent 2 were not binding on it. (<•) Moreover, Ihe procedural, irregularity which led to the annulment of the decision to terminate the services of the respondcnl 1 was a mailer solely due to the course οΐ action adopted by the Public Service Commission. (

  1. d)It is, therefore, the Republic, and the Republic only, which could be sued in these proceedings. 4 (
  2. a)There can be no doubt that respondent 1 is a " per­ son aggrieved ", in the sense of paragraph 6 of Article 146 of the Constitution, by the said decision of the Public Service Commission to terminate his services, because, as a result of such decision, he remained out of employment, receiving no salary, for a period from the 8th March, 1961, until the 5th February, 1962. He was not granted any other resti­ tution from the Republic ; so he is entitled to damages. (
  3. h)But we cannot assess such damages on the basis of the measure of damages which would have been adopted had this been a case of wrongful dismissal in the realm of the law of master and servant. (
  4. e)Damages in a case such as the present one, have to be "just and equitable damages" as laid down in paragraph 248 6 of Article 146 of the Constitution (supra), and, in interpreting such expression, we find great assistance in the course adopted by ihe French Council of State in the Deberles (7ih April, 1933). ll was held, there, in a case of similar nature to the present one, lhai in assessing damages in relation to a decision which has been declared void, the respective importance of the culpability of theAdministration and of the claimant must be taken into account. (
  5. d)Taking into account, inter alia, that the termination o f the services of respondent I was decided upon because he unjustifiably refused to obey his transfer to Kakopetria and taking into account that such transfer was found to bevalidby the Supreme Constitutional Court, andthat thetermination of the services of respondent 1 wasfound tobeinvalid only because the proper procedure was not followed for the purpose, we take the view that this is a case where the culpability of respondent 1 in the matter is much greater than the culpability of ihe Republic, through ihe Public Service Commission. 5 (
  6. a)Bearing in mind the above and also what would have been ordinarily due to respondent I had this been a simple case of wrongful dismissal would have been the sum of £849.678 mils as agreed between the parties before the Trial Court, we take ihe view that there is on record sufficient material before us enabling us to proceed to reassess what is due to respondent I as "just and equitable damages" within paragraph 6 of Article 146 (supra) and that in the unusual circumstances of this case an amount of £300 represents what are "just and equitable damages "

that paragraph 6 of Article 146, to respondent 1in this case. (/)) In the result, therefore, this appeal is allowed to ihc extent to which it relates to judgment having been given against the Republic

Article 172

of the Constitution (supra) and, instead, judgment isgiven against the Republic— the appellant—

Article 146, paragraph 6 of the Constitution for £300.

The Republic should bear half the costs of Ihe appellant in the Court below and here with no order as lo costs, either here or in the Court below, in icspcct of respondent

  1. Appeal allowed to the extent as aforesaid. Order as to costs as aforesaid. 249 1966 April, 14, May, 10, June, 30 THE ATTORNEYGENERAL OF THE REPUBLIC o. ANDREAS A.MARKOULLIDES AND ANOTHER 1966 ΛριιΙ, 14, May, 10, June, 30 Tm AIIOMNFVGrNFRAL OF 1HI RpPUBLlC II. ANDKI-\S A.MARKOULLlDfS AND ANorntR Cases referred to : Kyriakides and the Republic,1 R.S.C.C. 66, at p. 74 ; Vrahimi and the Republic, 4 R.S.C.C. 121, at p. 124 ; The decision (arret) oj the trench Council oj State : Deberles. of Ihe 7th April,
  2. Appeal. Appeal against the judgment of the District Court of Ni­ cosia (Evangelides P.D.C. & loannides D.J.) dated the 15th September, 1965, (Action No 782/62) whereby the plaintiff's claim against defendants 1 and 2 was dismissed and defendant No. 3 was adjudged to pay to him the amount oi' £849 678 mils, by way of damages which he sustained as a result of his dismissal by the Public Service Commission. C. Toinarith, Attorney-General of the Republic, with L. Loucaides, Counsel of the Republic, for appellant. L. derides with S. Demctrhu, for respondent ) Sir P. Cmoyiatmls, for respondent
  3. Cut ad\ . vuli. VASSILIADRS, J. : The judgment of the Court will be read by Mr. Justice Tiiantafyllides. Mr. Justice Jv'unii, who is absent, has informed us that he concurs in the result of this appeal. TRIANIAI YLLIDES, J. : This is an appeal against the judgment of the District Court of Nicosia given in avti action No. 782/62 on the 15th September,
  4. : The undisputed facts which gave rise to the said .anon are as follows : Respondent 1, in February, 1961, was a clerical employee of respondent 2, having been appointed as from tin· Ist Jan­ uary,
  5. On the 2nd February, 1961, respondent 1 received a letter of transfer from respondent 2 dated the 2nd Februaiy, 1961, transfening him to Kakopetria as from the 1st Match,
  6. Respondent 1 by a letter dated the 13th Februaiy, 1961, addressed to respondent 2, refused to accept the said tiansfer. 250 On the 16th February, 1961, respondent 2 replied to this letter of respondcnl 1, informing him that unless he complied with his instructions as to the transfer, he was liable to be dismissed. On the same day, on the 16th February, 1961, respondent 2 wrote to the Public Service Commission informing it of the position and asking it to take disciplinary action against respondent 1 with a view to his dismissal from service. 1966 April, 14, May, 10, June, 30 THE ATTORNEYGENERAL OF THE REPUBLIC D. ANDREAS A. MARKOULLIDES AND The" Commission wrote to respondent 1 on the 3rd March, 1961, asking him to appear before the Commission to explain the reasons for his refusal to comply with the transfer. Respondent 1 failed to report for duty on the 1st of March, 1961, at Kakopetria, or at any lime thereafter ; and, on the 7th March, 1961, respondent 2 wrote to him suspending him from duty. On the 8th March, 1961, respondent 1 appeared before the Public Service Commission and was questioned in respect of his refusal to take up duty at Kakopetria on or after the 1st March,
  7. The Commission then considered the mat­ ter and decided that the transfer of re c —\ :1cnt 1 to Kako­ petria .was reasonable and that he shoi , y take up duties at Kakopetria ; it informed respondent ' of its decision there and then, whereupon respondent 1 :ategorically slated to the Commission that he was unable l- proceed to Kakopetria. On Ihc same day, on the 8ih Man i, 1961, the Commission considered the refusal of respondent ί to proceed to Kako­ petria, in accordance with ils decision, stated above, and decided that he should be dismissed forthwith. On the same day, respondent 2 wrote to respondent 1 dismissing him from the service. On the 24ih April, 1961, respondent 1 filed against the Republic, through the Public Service Commission, a recourse in the Supreme Constitutional Court, N o . 33/
  8. The judg­ ment of that Court was delivered on the 29th January, 1962 (see 3 R.S.C.C p. 30). By virtue of such judgment, the de­ cision of the Commission to transfer respondent 1 was con­ firmed but the decision of the Commission to dismiss him was annulled as having been taken in a manner incompatible with the principles of natural justice. 251 ANOTHER " 1966 *\ριι . • May, 10 lune 30 THK ATTORNEYc i si RAL οι -in.- Ri.i-um.ir ANURIAS Λ.ΜΛΗΚΟΙΜ.πι»s· ΛΝ1> •MNIJ ΛΝΙΙΙΗΙΚ On the 31st January, 1962, respondent 2 wrote to rcsponj c n l ι slating that he was required to take up duties at K a k o pctna as f r o m the 5th January,
  9. He did so. Respondent 1 as f r o m the 1st March, 1961, to the 5th Fe­ binary, 1962, failed to render any services to respondent 2 ; u K . i k o p c t r j i l t where he had been transferred; nor did he at any time offer to render any services to respondent 2 Kakopetria during that period. i)l < ) n Hie 20th February, 1%2, respondent 1 filed, as plaintiff action 752/62 (D.C. Nicosia) against :

(1)The Electricity A u t h o r i t y ol* Cyprus—respondent 2 - ,
(2)The Public Service Commission, and
(3)The Attorney-General of the Republic, as defendants. He claimed damages for the termination of his services, as subsequently annulled by the Supreme Conslitulional Court. Hy virtue o f its judgment

appeal the trial Court dis­ missed the said action as against the Public Service Commis­ sion, as such, and against respondent 2, and gave judgment for £849.778 mils with costs against the appellant

A i l i c l e 172 o f the Constitution ; the said amount represents the salary and bonuses that would have been received by res­ pondent 1 d u r i n g the period he remained out o f the service o f respondcnl 2, had his services not been terminated by the Commission, as aforesaid. Ii has, first, lo be observed that no differentiation could really or properly he made, in a case such as the present one, between the " Public Service Commission" and ihe AllorneyGenenii, in proceeding against the " R e p u b l i c " . As they were joined in the action as separate defendants, tiie trial Court dismissed the action against the Public Service Commission because it accepted a submission by counsel for the Republic to the effect that the Commission was not an independent juridical personality and that, therefore, it could not be held liable, as such ; as a result, judgment for the wrongful action in question o f the Commission was given against the Republic, by being given against the appellant Attorney-General. liut the Public Service Commission is a State organ func­ tioning in the Republic, for the Republic ; so, once the es­ sence o f the matter is looked at, there can be no doubt that, though the action was dismissed by Ihe trial Court as against ">S2 the Public Service Commission, as a separate defendant, and judgment was given against the Attorney-General, as repre­ senting the Republic, such judgment was, in substance and in fact, given against the Republic in respect o f a decision o f the Commission which had been declared to be void by the Supreme Constitutional Court

Article 146

and, there­ fore, the said judgment must be regarded as a judgment given against the Republic, including the Public Service Commis­ sion as an organ thereof. 1966 April, 14, May, 10, June, 30 THE ATTORNΕYGENERAL OF THE REPUBLIC v. ANDRtAS A.MARKOULLIDES; AND ,- • . f Rightly, therefore, the Attorney-General appearing as the appellant, has argued this appeal also in so far as the posi­ tion, in the matter, o f the Public Service Commission is con­ cerned ; and it was not necessary or proper at all l o make formally the Commission a separate party lo this appeal. The first issue which arises for determination in this appeal is whether or not it was open lo Ihe trial Court to gi\e judg­ ment, in a case such as the present one, against the Republic on the basis o f Article 172 o f the Constitution, which reads as follows : " The Republic shall be liable f o r any wrongful act or omission causing damage committed in the exercise or purported exercise o f the duties of olfiecrs or authori­ ties o f the Republic. A law shall regulate such liabili y ". Wc are in agreement with the i amed Attorney-General lhal once Ihc termination o f the : rviecs o f respondent I was a matter within the competence

Article 146

o f the Constitution, and, moreover, such termination had been an­ nulled by means o f a recourse filed

the said Article, there was no question o f proceeding against the Republic at all

Article 172

, but the remedy open to respondent 1 was

paragraph 6 o f Article 146, which reads as follows: " A n y person aggrieved by any decision o r act declared to be void

paragraph 4 o f this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a Court for the recovery o f damages or for being granted other remedy and to recover just and equitable damages to be assessed by the Court or to be granted such other just and .equitable re­ medy as such court is empowered to grant ". 253 /· ANOTHUT '·. •• Λ i96r ' '\Γ\' 10 lime M) Ί his \iew is amply suppoitcd bv the judgment ol the SuP"-'iie Constitutional Coml in kynakides and 'Ihe Republn 0 R S C C ρ 66) It was slated in the said judgment at ρ 74 as lollovvs III) \ I lOltM1 C-IMRU "' " " K m " " K \\DKI AS A M/i(Kui ιι iufs ANOMILK ' Ihc Couit is ot the opinion that no question of paiulId legal lcmcdies can ausc through the concLition of Articles 146 and 172 \ilule 172 lays down the general principle that the Republic is nude liable 'lot any wrongful act ot omission causing damage committed tn the excicise oi purpoited c\eicisc ol the duties ol officeis oi authoiitics of the Republic It is clc.uly aimed at lemcdying the situa­ tion ^\ M'ng bcloic the eoming into loice ol the Coiistilution wheicb) the loimu Government of IIK C olonv ol (.v pi us could not be Micd in tort Ihe. pimciple embodied in Ailicle 17? has been given elkel, mtei alia, in the Constitution by means ol p.na*'i i"li c. ol Ailicle !46 in tespect ol all mullets coming wiilmi ihc scop* ol such Ailicle 146 I lieιc l o u , 111 ιIK opinion ol this Court, in lesp^u ol ill wioniiliil ael· ο omissions retciied to in Ailicle ' / J and which ael* oi omissions come within the -cope oi flo,i!e Ito ,ni κlion loi damages lies in a u v i l C o u t i oid^ undci put ο»! iph 6 <• I such Ailicle, consequent upon a iikh'nii nt o| ihis ( o m i undci paragraph 4 ot the same ΛΠft.k and in su( h e.iM.s an action does not he dnect in a civil ( oun bv vnln. ol the piovisions of Ailicle 17°" Ihe Midlinent in h<niki<L\ (\upui) was confnmed, m I'K abov. H'S|K< t bv the Supieme Constitutional Couit in I > alio,, ,.„/ //« Rffwhlu (A R S C C ρ 121 at p I'M) Sh nil(I the aelion in question undei Ailicle 146 ((->), have bet ii hi el against 'he Republic oi against respondent 2 oi both > \t the heai uig ol I hi·, ippe.il, eounse! foi icspondenl 1 vv.;-. mil in the 'lid, inclined lo insist that such action could be I ilk. I .iL'.uiisi icspo.ideiit ., M\C\ he agreed that the Repu­ blic w.i' Ihe onlv piop-i ddend ml in the mailer Wc tin ihmk thai this is .ι ι-Mrect view Undei p u a g i a p h 6 ol Ailkle '46, legal proceedings may he instituted, il the ι hum ot .ι " pcison aggrieved " by a decision which has been 254 declared lo be void in a recourse

such Article is not met to his satisfaction by " the organ, authority or person concerned ".. In the light of the whole context of Article 146, and. bearing also in mind that in essence paragraph 6 of the said Article is an indemnification provision forming part of the scheme of Article 146, we came to the conclusion that " the organ, authority or person concerned " must mean ihe organ, authority or person the decision of which has been annulled

Article 146

with the result of giving rise to a claim

paragraph 6 of Article 146. April, 14, May, 10, June, 30 T H E ATTORNEYGENERAL nt THE REPUBLIC v. ANDRFAS A.MARKPULLIDES AND ANOTHER In the present instance, the termination of the services of respondcnl was decided upon by the PublicServiceCommission and it is the decision of the Commission which was declared lo be void by the Supreme Constitutional Court'. It is such decision which has rendered respondent 1 a " person aggrieved" inthe senseof Article 146

(6); it is,therefore, against the Republic that the claim of respondent 1

paragraph 6 of Article 146 lies. We would like to point out that wc consider as largely irrelevant the law of master and servant in a case such as the present one ; we are concerned, here, with the claim of a eiti/en, respondcnl 1, for damages because of the consequences of a decision of a public organ the Public Service Commission which decision has been declared, on recourse

Article 146

, lo be void ; such claim is not based on the law of master and servant at all, but on his right to make such a claim as provided for by paragraph 6 of Article 146. Nor is it material, HIour opinion, that when the services of respondent 1 were terminated by the.Public Service Commission, he was in the employment of theElectricity Authority of Cyprus—respondent 2—or that such termination was recommended by respondent 2 to the Commission. In terminating the services of respondent 1, the Commission was exercising a. constitutional function given to it

Article 125

of the Constitution ; though such function was being exercised with an employee of respondent 2 as its subject-matter, and though the recommendations of the said respondent were a factor to be duly taken into account, nevertheless, the said function was being exercised as part of the constitutional structure, for the purposes of the State, and on behalf of Ihe Republic, and not of respondent 2 ; also the ultimate decision lay only with the Commission, because Ihe recommendations of respondent 2 were not binding on it. More255 1966 Π| Μ- ' ίο' June 30 — T,, GE™RTL N '' V * or mi Kii'imnc ANURIAS \ MAHKouiuors ΛΝΙ) ΛΝΟΙΙΙΙΚ over, the procedural irregularity which led l o the annulment °^ " i e decision t 0 terminate the services o f respondent 1was m a l t c r solely due to the course o f action adopted by the Public Service Commission, for which respondent 2 cannot be a h c k l t n e r c s P ° n s i b I e a l u I 1 - " i s ' therefore, the Republic, and Republic only, which could be sued in these proceedings. Having held that the claim o f respondent 1,

paragraph 6 o f Article 146,could only be made against the Republic, there remains to examine to what extent, i f any, he is entitled l o succeed on such a claim. There can be no doubt that respondent 1isa person aggrieved by ihe decision lo terminate his services because, as a result o f such decision, he remained out o f employment, receiving no salary, for a period f r o m Ihe 8 l h o f March, 1961 until the 3th February, 1962. Me was not granted any other restitu­ tion by Ihe Republic ; so he is entitled to damages. We cannot assess such damages on the basis o f the measure o f damages which would have been adopted had this been a case o f wrongful dismissal in the realm o f the law o f master and scivant. Damages in a case, such as the present one, have to be " j u s t and equitable damages", as laid down in paragraph 6 o f Article 146,and, in interpreting such expression, we f i n d great assistance in the course adopted by the French Council of Stale in the case o f Deberles (7th A p r i l , 1933). It was held, there, in a case o f similar nature to the present one, that in assessing damages in relation to a decision which has been declared to be void the respective importance o f the culpa­ bility o f the Administration and o f the claimant must be taken into account. In the light of the foregoing we are o f ihe viev\ that the amount awarded by the trial Court, in this case, which repre­ sented the total loss o f respondent 1 while he was out o f employment, cannot be regarded as " j u s t and equitable da­ mages " in view o f the particular circumstances o f this ease, as they arc to be dealt with further, later on in this judgment. It has been submitted d u r i n g the course o f the hearing o f this appeal l h a l the amount o f damages awarded to respon­ dent 1 by the trial C o u r t had been agreed between the parties before the trial Court, and that, in any case, i f such agreement is not f o u n d to p u t an end to any dispute regarding the 256 amount of damages due to respondent 1, then this Court does not have, at present, before it sufficient material to reassess the amount of such damages, and the matter would have to be referred back to the trial Court. Wc take ihe view that ihe amount awarded by the trial Court had, indeed, been agreed upon between the parties, but it was agreed upon on the mistaken footing that this was the amount to which respondent 1 was entitled on the basis of the measure of damages adopted in cases of wrongful dismissal of a servant by his master, and such amount was awarded

Article 172

. Wc do not consider that there exists in these proceedings any binding agreement regarding the just and equitable damages to which respondent 1 is entitled

paragraph 6 of Article 146. Moreover, wc do think thai there is on record sufficient material before us enabling us to proceed to reassess what is due to respondent 1 as just and equitable damages in respect of the wrongful termination of his emloyment by the Public Service Commission in the circumstances of this case. Taking into account, inter alia, that the termination of the services of respondent 1 was decided upon because he unjustifiably refused to obey his transfer to Kakopetria, and taking into account that such transfer was found to be valid by the Supreme Constitutional Court, and that the termination of the services of respondent 1 was found lo be invalid only because the proper procedure was not followed for the purpose, wc take the view that this is a case where the culpability of respondent 1 in the matter is much greater than the culpability of the Republic, through the Public Service Commission. Bearing in mind the above and also what would have been ordinarily due to respondent 1 had this been a simple case of wrongful dismissal would have been £849.678 mils, as agreed between the parlies before the trial Court, we take the view that in the unusual circumstances of this case an amount of £300 represents what are just and equitable damages, payable

paragraph 6 of Article 146, to respondent 1 in this ease. In the result, therefore, this appeal is allowed to the extent to which it relates to judgment having been given against the Republic

Article 172

and, instead, judgment is given against the Republic -the appellant—

Article 146(6) for £300.

257 1966 April, 14, May, 10, June, 30 THE ATTORNLVGENERAL OF THF REPUBLIC n. ANDKEAS A.MARKOULLIDES AND ANOTHLR 196(1 Apnl, 14, Miiv 10 , ' io TMI A n n . » ™ - Regarding costs, we think that the proper order should be t n a ( t ) ) c R e p u k ] j c should D C a r half the costs of respondent 1 M1 t n c Court below and here and that there should be no order as to costs in respect of the cosis of respondent 2 in the Court b L .,ow o r hc| .e GfM-liM. OF ini liii'umn- Appeal allowed. Order as to costs as aforesaid. l>. ANOXIAS Α Μ Μ Ι Κ Ι > Ι Ι Ι ι iniv ΛΝΟ A M U I I I Η 258

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.