1966 April 13, 21 Nov 12 [TRIANTAFYLLIDES, J ] IN T H E MATTER O F A R T I C L E 146 O F T H E CONSTITUTION IOANNIS CONSTANTINOU IOANNIS C O N S T A N T I N O U . Applicant and T H E REPUBLIC O F C Y P R U S . T H R O U G H T H E C O U N C I L FOR T H E R E I N S T A T E M E N T Ol· DISMISSED CIVIL SERVANTS, Respondent (Case No 28/66) Public Officers—Reinstatement—Claim for reinstatement under the Dismissed Public Officers Reinstatement Law 1961 (Law No 48 of 1961)—"Entitled Officers"—Definition in section 2(
- c)of the said law—Public Officeis who 'retired compulsoi il\ (and exclusnely for political reasons)—Meaning of the said p/uase in paragraph (
- c)of sectton 2 ( s u p r a ) — T h e notion of compulsor\ retirement as used in the phase "retired compulsonl\' in paragraph (
- c)of the iele\ant definition of entitled office!' (supra) was not intended to be understood onh in the narrow technical tense of the Pensions Law Cap ^11 section 8 (/ e on/v when an officei is requited to retire)—But was intended to include cases where an officer has been compelled b\ political leasons to seek permission to retire without being formalh lequired to do so—Refusal of applicant s application to the respondent council for his reinstatement in the C\prus Police Force—On the giound that applicant s1em email in 1955 was a \olunfar) one and that therefore he was not an entitled officer within the meaning of the afoiesatd law (supra)— Decision of the icspondent annulled as ha\mg been taken contiar) to law viz contian to basic pnnciples of Administrative Law and in abuse and in excess of poweis through a defectne exeicise of lespondents iele\ant discretion due to a basic niisconcepnon of fact Admintstratnc Law—Discietion—Decision annulled on a iccounc under Article 146 of the Constitution--As ha\tng been taken contran to law viz the basic pimaples of Administratis c Law— And in abuse and in excess of powa s thiough a defeanc exercise of respondents discretionar\ poweis due to a basic misconception of fact—See also under Public Officeis abo\e 793 and THE REPUBLIC OF CYPRUS THROUGH THE COUNCIL FOR THE REINSTATEMENT OF DISMISSED CIVII SERVANTS 1966 April 13 21. Nov 12 lOANNIS CONSTANTINOU and T H E REPUBIK OF CYPRUS THROUGH Tin COUNCIL FOR THE RblNSTATEMl^T OF DISMISS!"!) C r\n SFR\ANTS Administrative Law—Decision—Ma\ be annulled as being defectne due to lack of proper inquir\ on the part of the administrative authorit \ concerned Abuse of powers—See above Basu Principles of Administiative Decision— Admwtstiatne this instance contian Law—And Law—See above decision taken tontrarv to law wr in to basic pnnciples Admimstiatnc of m abuse and excess of powers—See Decision—Defective above due to lack of pioper inquiry on the pait of the administratise Administrative authority concerned—See above under Law ι powei s--Defective exercise of—See abo Discretion—DISCIetionai ve Inquirv —Piopei inquin should be had—Defective decision thiough lack of piopei ιικμιιι ι --See above Misconception of fact—Basic misconception of fact—Defective cxetcise of discretional ν poweis due to a basic misconception of fact— See ahove Entitled Offueis Reinstatement —Reinstatement of-See above of dismissed buhlic officeis undei Law 48 of 1961 supra— Sec above Ohseivations h\ the Conn to the effect that it would be advisable whew an officei spa sonal file is not such as to pur the essential natwe of the niatta bevond doubt and wheie an applicant foi icinstatenieni lendas witnesses who can give to the respon dents the full facts that the\ should pioceed to examine such witnesses in aider to make the ιικμιιι ι us full as possible Applicant was a member οΐ the Cvprus Police Iorcc since 1926 and in August 195s lie applied for permission to retire having reached the age of hftv vears He put forward as the reasons for his wish to lea\e the Police ' excessive fatigue' due to hardships during his long service Cventuallv the applicant was permuted to retire from the service under section 8
(1)of thePensions Law then C a p 288.now C a p 311. with effect as from the ist January, 1956 He received all retirement benefits that were normally due to him In due course the applicant applied to the respondent Council for reinstatement under the Dismissed Public Officers Reinstate ment Law 1961 His application was refused 794 It was the applicant's case that he was forced to apply in 1955 for permission to retire—and that, therefore, he "retired compulsorily" within section 2(c) of the Law (supra) because at the material time he was rendering assistance to EOKA (the National Organization of Cypriot Fighters which was waging the Liberation Struggle) and for this reason he came under suspicion on the part of his British superiors and he was running the risk of being dismissed from service. losing, thus, also his pension; so. acting on the advice of one of his Greek superiors, he decided to retire from service and applied accordingly. The respondents did not accept that applicant's retirement took place in thecontext,and because, of his EOKA activities, but treated it as a purely voluntary retirement for private reasons and refused applicant's aforesaid application for reinstatement. In annulling the said refusal the Court: Held,
(1). On the material before me. I am satisfied that the applicant decided to retire because of the very difficult situation in which he found himself due to his connection with the Liberation Struggle, and that this was not a case of normal retirement.
(2)In the circumstances, 1 am of the opinion that the respondents, in dismissing applicant's claim for reinstatement. were labouring under a basic misconception of fact; they decided the applicant's claim out of, and contrary to. its correct context and divorced from its true background.
(3)As a result this Court has no alternative but to annul the sub judice decision, as having been taken contrary to law viz. the basis principles of Administrative Law (Sec Morsis' case and PEO'S case (infra) and in abuse and excess of powers, through adefective exercise of respondents' relevant discretion. Per curiam: In view of respondents' failure to call before them the witnesses suggested by the applicant. I would have considered annulling the sub-judice decision of respondents, as being defective due to lack of proper inquiry onthe part of respondents. Ineed not. however go as far, once 1ha\e already annulled the said decision 795 1966 April 13, 21, Nov 12 lOANNIS CONSTANTINOU and ΤΗΓ. REPUBLIC OF CYPRUS THROUGH THE COUNCIL FOR THI REINSTATEMENT OF DISMISSED CIVIL SFRVANTS 1966 April 13. 21, Nov 12 lOANMS CONSTANTI NOU on theground of misconception of fact as explained earlier (supra) Per curiam and T H E REPUBIΚ OF CYPRUS THROUGH T H E COUNCIL FOR THE REINSTATEMENT OF DISMISSED O W L SERVANTS I would like toobserve that it would be advisable. where an officer's personal file is not such as to put the essential nature of the matter beyond doubt, and where anapplicant for reinstatement tenders witnesses who cangive to the respondents thefull facts, that respondents should proceed to examine such wit nesses inorder to make their inquiry asfull as possible. it is.ofcourse, a matter forthe respondents to regulate their ownproceedings, in each specific case, as they may deem best Cases referred to Morsis andthe Republic
(1965)3 CLR 1followed, PEO and Boaid ofFilms Censors and another
(1965)3CL R 27 followed Recourse. Recouise against the decision of the Respondent tothe effect that Applicant is not anentitled officer under the provi sions of the Dismissed Public Officers Reinstatement Law 1961 (Law 48/61) L Cfeiicfe's for the Applicant Μ Spanos Counsel of the Republic, for the Respondent Cut adv. vu/t. Ihe following Judgment was delivered b y TRIANTAHYI 1IDLS, J I11 this recourse the Applicant challenges the validity of a decision of the Respondent. as communicated to him by a letter dated 28th January, 1966 (exhibit 1) By such decision Applicant's application for leinstatement, asan entitled officer, under the provisions of the Dismissed Public Officers Reinstatement Law1961 (Law 48/61) was refused by the Respondent Applicant wasa member of the Cyprus Police since 1926, and in August. 1955.he was a police constable stationed at Ypsonas On the 20th August.
- he tendered his "resignation" from the Police "according to the Pensions 796 Law" (seeexhibits 3and3a); in effect heapplied for permission to retire having reached theage offiftyyears. Heput forward as the reason for his wish to leave the Police "excessive fatigue" due to hardships during his long service, as a result of which he was unable to continue performing his duties without difficulty. A superior officer of Applicant, inforwarding hisresignation, had this to say, inter alia:- "He is a good policeman but the present situation has apparently broken his nerves". It is common ground that he was referring to the situation which had arisen as a result of the Liberation Struggle, in Cyprus, which had commenced on the 1st April,
- Eventually the Applicant was permitted to retire from the service under "section 8
(1)of the Pensions Law Cap. 288" —now section 8
(1)of Cap. 311 (see exhibit 9). Applicant's retirement took effect on the 1st January,
- He received all retirement benefits that were normally due to him. On the 7th December, 1961, he applied to Respondent for reinstatement under Law 48/61 (see exhibit 6). His application having been turned down, hefiledrecourse 223/62, which was withdrawn on Respondent undertaking to re examine the matter. Applicant, through his advocate. placed before Respondent further material regarding his nationalistic activities at the material time (see exhibit 2). In the end Respondent turned down Applicant's application once again and as a result the aforesaid letter dated 28th January, 1966, (exhibit 1) was addressed to Applicant. This recourse was filed on the 10th February,
- Respondent in turning down Applicant's application for reinstatement regarded the retirement of the Applicant in 1955 as a voluntary one and reached thus the conclusion that Applicant was not, in the circumstances, an "entitled officer", in the sense of Law 48/
- An "entitled officer" is defined in section 2 of Law 48/61 and the Applicant contendsthat hecomes within the definition of an "entitled officer" in view of paragraph (c) of such definition which reads:- "άφυπηρέτησεν άναγκαστικώς" ("retired compulsorily"). 797 1966 April 13,
- Nov. 12 lOANNIS CONSTANTINOU and THL REPUBLIC OF CYPRUS THROUGH T H E COUNCIL FOR THE REINSTATEMENT OF DISMISSED CIVIL SERVANTS 1966 April 13, 21, Nov. 12 IOANNIS CONSTANTINOU and T H E REPUBLIC OF CYPRUS THROUGH T H E COUNCIL FOR THE REINSTATEMENT OF DISMISSF» CIVIL SERVANTS It is the case of Applicant that he was forced to apply for permission to retire—and that, therefore, he "retired compulsorily"— -becauseat the material time hewas rendering assistance to EOKA (the National Organization of Cypriot Fighters which was waging the Liberation Struggle) and for this reason he came under suspicion on the part of his British superiors and he was running the risk of being dismissed from service, losing also his pension; so, acting on theadviceofoneof hisGreek superiors,Mr.Costas Efstathiou, who was a Chief Inspector at the time stationed in Limassol, he decided to retire from service and he applied accordingly. It isclear from the relevant minutes of Respondent, relating to the claim of the Applicant (exhibit 7),that the basic allegations put forward as constituting the case of the Applicant, were before the Respondent and within its contemplation when it came to deal with the matter. As it appears, however, from the abovementioned minutes (see para. 2
(1)of exhibit 7) and also from the letter addressed to Applicant on the 28th January, 1966,(see para. 3of exhibit I) the Respondent did not accept that Applicant's retirement took place in the context, and because, of his EOKA activities, but treated it as a purely voluntary retirement for private reasons. This viewofthe Respondent isreflected, also,intheevidence of Mr. Eftyhios Yiannakis. a member of the Respondent. I am of the opinion that such view is erroneous. On the material before me I am satisfied that the Applicant decided to retire because of the very difficult situation in which he found himself due to hisconnection with the Liberation Struggle, and that this was not a case of normal retirement. In the circumstances, I am of the opinion that the Respondent, indismissing Applicant's claim for reinstatement, was labouring under a basic misconception of fact; it decided the claim of Applicant out of, and contrary to, its correct context and divorced from its true background. As a result this Court has no alternative but to annul the sub judice decision of Respondent, as having been taken contrary to law viz. the basic principles of Administrative Law (see Morsis and The Republic,
(1965)3 C.L.R. p. 1 and PEO and Boardof Films Censors andanother
(1965)3C.L.R. p.27) and in abuse and in excess of powers, through a defective exercise of Respondent's relevant discretion. 798 By deciding this recourse in this manner I am not to be taken as deciding, also, whether the circumstances of Applicant's retirement entitle him to be treated as an "entitled officer", i.e. whether they are such as to amount to a compulsory retirement in the sense of the relevant definition in section 2 of Law 48/
- The application of the legislation in question to the facts of each particular case is a matter, in the first instance, for the Respondent, and this Court will not proceed to do so in this Case, at this stage. It is for the Respondent to reconsider the matter, in its proper context, and decide whether or not, in the circumstances, the Applicant is an "entitled officer" and also whether or not the Applicant retired exclusively for "political reasons", in the sense of Law 48/61; I am leaving these issues entirely open. 1 must, however, make it clear that, in taking the view in this Judgment that the Applicant is entitled to succeed in this recourse, I am of the opinion that the notion of compulsory retirement,asused inparagraph (c)ofthe relevant definition, was not intended to be understood only in the narrow technical sense of section 8 of Cap. 311, (i.e. only when an officer is required to retire) 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. Whether or not, in each such case, there exists the element of compulsion, to the extent necessary to render the officer concerned an "entitled officer", is a matter for the Respondent, in the first instance, which has, in theexercise ofitsdiscretion, quite a widemargin of appreciation. Had I found otherwise viz. that the compulsory retirement envisaged by the definition of "entitled officer" is to be understood only in the sense of the compulsory retirement provided for in section 8of Cap. 311,then Iwould have had to dismiss this recourse, because Applicant having not been compulsorily retired in the sense of the said section 8,hecould, under nocircumstances, beheld to bean "entitled officer", and, thus, he would not have been legitimated, in the sense of Article 146, to file this recourse. Lastly, I would like to observe, that it would be advisable, wherean officer's personalfileisnotsuch astoput theessential nature of the matter beyond doubt, and where an applicant for reinstatement tenders witnesses who can give to the Respondent the full facts, that Respondent should proceed 799 k. 1966 April
- 21, Nov. 12 IOANNIS CONSTANTINOU and THE REPUBLIC OF CYPRUS THROUGH T H E COUNCIL FOR THE REINSTATEMENT OF DISMISSED CIVIL SERVANTS 1966 April 13,
- Nov. 12 IOANNIS CONSTANTINOU to examine such witnesses in order to make its inquiry as full as possible; it is, of course, a matter for the Respondent to regulate its own proceedings, in each specific case, as it may deem best. and T H E REPUBLIC OF CYPRUS THROUGH T H E COUNCIL FOR THE REINSTATEMENT OF DISMISSED CIVIL SERVANTS In this particular case, in view of the comment made, as aforesaid, when the resignation of the Applicant was forwarded (exhibit 3a),and bearing, also, in mind that Applicant did invite the Respondent's attention to the existence of certain material evidence (see exhibit 2), 1think that it was not proper to regard the formal documents in Applicant's personal files (exhibits \0a and \0b) as telling the whole story; in view of Respondent's failure to call before it the witnesses suggested by the Applicant—and particularly Mr. Efstathiou —I would have considered annulling the sub judice decision of Respondent, as being defective due to lack of proper inquiry on the part of Respondent; I need not, however, go as far, once 1 have already annulled such decision on the ground of misconception of fact, as explained earlier in this Judgment. In the result this recourse succeeds and the sub judice decision is declared to be null and void and of no effect whatsoever. Regarding costs 1 have decided to award Applicant only part of his costs, viz. £12, in view of the fact, especially, that the hearing of this Case had to be adjourned once due to the fault of the Applicant. Sub judice decision annulled. Order for costs as aforesaid. 800