clr/1968/1968_3_566.pdf

(1)(a). It is obvious, in my view, that the letter dated October 5, 1967, of Respondents' counsel is a mere repetition or confirmation ofprevious letters which the District Officer wrote in 1966 in the same matter (viz. the said letters dated October 6, 1966, and October 21, 1966, supra). (b) It is a well settled principle of Administrative Law that confirmatory acts or decisions, unless done or taken after a new inquiry—which is not the case herein—are not executory acts or decisions; and, therefore, they cannot be the subject of a recourse under Article 146 of the Constitution (See Kolokassides and The Republic

(1965)3 C.L.R. 549; and (on appeal)

(1965)3C.L.R. 542; Ktenasand Another (No. \) and The Republic

(1966)3 C.L.R. 64, at p. 73. See, also conclusions from the Jurisprudence of the Greek Council of State 1929-1959 at p. 240).

(2)Consequently, in so far as the present recourse is aimed at the decision communicated to the Applicant by the District Officer's aforesaid letters of October 1966, then, obviously, the recourse isout of time in view ofthe provisions of paragraph 3 of Article 146 of the Constitution regarding the prescribed period of 75 days, which are mandatory and have to be given effect to in the public interest (See Moran and The Republic, I R.S.C.C. 10; Holy See of Kitium and The Municipal Council of Limassol 1 R.S.C.C. 15; Joyce Markoullides and The Greek Communal Chamber, 4 R.S.C.C. 7)

(3)(

1. a)But it was argued by counsel for Applicant that the recourse is not out of time because there has been an omission on the part of Respondents to re-examine the Applicant's case consequent upon his (counsel'
2. s)demand in his said letter of September 4, 1967. (
3. b)In my view there can be no question in this case of an omission within Article 146.1 for the very simple reason that in the circumstances the administration had no duty 568 to discharge because it had decided long before that the Applicant was not entitled to a gratuity benefit. 1968 Oct. 4 (
4. c)Furthermore, the refusal of the administration to re-examine the case of the Applicant with a view to revoking or withdrawing their previous decision, is not an act or decision of an executory nature, but only a confirmatory act; consequently, it cannot become the subject of a recourse under Article 146 of the Constitution. L. VARNAVA (
5. d)Of course, it would have been a different matter, if the Administration before replying to the letter of Applicant's said letter dated September 4, 1967, had embarked on a new inquiry intothe case. Such act or decision although of a confirmatory nature could be considered as being of an executory nature. (See Stassinopoulos, on the Law of Administrative Disputes 4th edition, at p. 175). Per curiam: For the guidance of the Administration, I would liketo pose the question: When does a new inquiry exist? On this point I would like to quote, from Stassinopoulos op. cit. p. 176 (Editor's Note: this passage, both in Greek and in English translation, is quoted in the Judgment post). Cases referred to: Kolokassides and The Republic

(1965)3 C.L.R. 549; and (on appeal)

(1965)3 C.L.R. 542; John Moron and The Republic 1 R.S.C.C. 10; Holy See of Kitium and The Municipal Council of Limassol 1 R.S.C.C. 15; Joyce Marcoullides and The Greek Communal Chamber, 4 R.S.C.C. 7; Ktenasand Another (No. 1) and The Republic

(1966)3 C.L.R. 64 at p. 73; Decisions of the Greek Council of State; No. 37/1937, in the Decisions of the Greek Council of State 1937, Vol. A 1. 814, at p. 815 No. 758/1938. Recourse. Recourse against the decision of the Respondents concern569 v. REPUBLIC (DISTRICT OFFICER NICOSIA AND ANOTHER) 1968 Oct. 4 CHRISTAKIS L. VARNAVA ing the payment of gratuity to Applicant upon his resignation from the service of Respondent 1. L. Clerides, for the Applicant. v. RLPUBLIC (DISTRICT OFFICER NICOSIA AND ANOTHER) K. Michaelides, for the Respondents. Cur. adv. vult. The following Judgment was delivered by:HADJIANASTASSIOU, J.: In this recourse, the short question between the parties, being a preliminary point of law, is whether this Application has been filed in the court within time i.e. before the lapse of 75 days as provided for in para­ graph 3 of Article 146. The undisputed facts are in brief as follows: The Applicant was appointed on July 1, 1959, as a clerk of certain Improvement Boards; but later on, on October 1, 1963, he was re-appointed to serve all the Improvement Boards of Nicosia District, at a salary scale of £308-596, plus cost of living allowance, payable by monthly instalments. The period of appointment was renewed from year to year, unless either party terminated the contract of service by giving two months notice in advance, prior to the expiration of the period of service. Although the post to which Appli­ cant was appointed was permanent but not pensionable, on March 18, 1966, he was informed in writing by the District Officer that the said post was made pensionable. On June 9, 1966, the Applicant addressed a letter to the District Officer, exhibit 7, in which he says: «Λαμβάνω τήν τιμήν νάσας πληροφορήσωότιπροσφάτως άπεδέχθην διορισμόν παρά τη Εταιρεία «ΧΙΛΤΟΝ» είς θέσιν τήν οποίαν κρίνω σημαντικώς σνμφερωτέραν δι' έμέ, θα κληθώ δέ όπως αναλάβω τά νέα μου καθήκοντα περί ή κατά τήν Ιην Σεπτεμβρίου, 1966. "Οθεν παρακαλώ δπως δεχθητε τήν παραίτησίν μου έκ της Θέσεως του Γραμματέως των Συμβουλίων Βελτιώ­ σεως της 'ΕπαρχίαςΛευκωσίας από της ως άνωημερομη­ νίας, Θέσιν τήν οποίανκατέχω άπό της 1ης Ιουλίου, 1959. Δράττομαι της ευκαιρίας ταύτης υάεκφράσω εγκαρδίως τάς ευχαριστίαςμουπροςΎμαςδιατήν μεγίστηνβοήθειαν, πατρικήν καθοδήγησιν και πλήρη καται»όησιν τήν οποίαν έπεδείξστε προς έμέ κατά τήν διάρκειαν της υπηρεσίας 570 μου είς τό Ύμέτερον γραφεΐον. Παρακαλώ όπως διαβιβάσητε κα\ προς πάντας τοΟς υφισταμένους Υμών τά αίσθήματά μου καΐ τάς ευχαριστίας μου 5ιά τήν ευγένειαν, βοήθειαν καί κατανόησιν τήν οποίαν έπεδείξαντο ωσαύτως προς έμέ. Διαβεβαιώ 6έ Ύμδς δτι ή παρά τω Ύμετέρω γραφεΐον υπηρεσία μου θάπαραμείνη είς έμέ αλησμόνητος. Περαιτέρω επιθυμώ δττως υποβάλω προς Ύμας τήν ύστάτην μου παράκλησιν Τνα μεριμνήσητε ώστε νά μού καταβληθη τό σχετικόν φιλοδώρημα, ως ήθέλατε κρίνη συμφερώτερον δι* έμέ.» . On September 24, 1966, the Applicant before receiving a reply, wrote another letter to the District Officer informing him, that he was definitely retiring from his post on October 31, 1966; and that he requested his leave before his retirement. It would be observed, that in both these letters the Appli­ cant had never raised a point or in any way made a reservation that his resignation was conditional on receiving his gratuity. On the contrary one reading his first letter would be inclined to take the view, that his resignation was due to the fact that the Applicant had secured a much belter job. On October 6, 1966, the District Officer, who under the law is the Chairman of all the Improvement Boards of Nicosia District, replied to the Applicant by letter exhibit 1. It reads: «'Επιθυμώ νά αναφερθώείς τάς έπιστολάς σας ημερομηνίας 9ης Ιουνίου καΐ 24ης Σεπτεμβρίου, 1966, 6ιά των οποίων υποβάλλετε παραίτησιν έκ της θέσεως σας, ώς Γραφέως των Συμβουλίων Βελτιώσεως Λευκωσίας, καΐ νά σας πλη­ ροφορήσω ότι τά Συμβούλια Βελτιώσεως Λευκωσίας ενέ­ κριναν τήν παραίτησίν σας άπό της 1ης Νοεμβρίου, 1966. 2. Παραχωρείται είς υμάς άδεια απουσίας άπό της 8ης 'Οκτωβρίου, 1966, μέχρι της 31ης 'Οκτωβρίου, 1966. 3. "Οσον άφορα τήν παροχήν φιλοδωρήματος μετά λύπης μου σας πληροφορώ δτι κατόπιν εξετάσεως απε­ δείχθη δτι συμφώνως των υφισταμένων Κανονισμών τών Συμβουλίων δέν δικαιούσθε είς τήν παροχήν οίουδήποτε φιλοδωρήματος. 4. Έν τέλει επιθυμώ νά σας ευχαριστήσω, τόσον έκ μέρους τών Συμβουλίων όσον καί έμοΰ προσωπικώς δια τον ζήλον καί ενδιαφέρον τό όποιον έπεδείξατε κατά τήν 571 1968 Oct. 4 CHRISTAKIS L. VARNAVA V. REPUBLIC (DISTRICT OFFICER NICOSIA AND ANOTHER) 1968 Oct. 4 Οπερ 7ετη ΰπηρεσίαν σας είς τ ά Συμβούλια βελτιώσεως, καί νά σας ευχηθώ τά βέλτιστα είς τήν νέαν σας σταδιοδρομίαν.» CHRISTAKLS L. VARNAVA v. REPUBLIC (DISTRICT OFFICER NICOSIA AND ANOTHER) As a result of this letter the Applicant invoiced the support of the Trade Unions, SEK and PEO, who jointly addressed a letter, exhibit 2, to the District Officer, dated October 21, 1966. It reads: «Δι' επιστολής σας ημερομηνίας 6/10/1966 απευθυνόμενης προς τόν ϋπάλληλον τών Συμβουλίων Βελτιώσεως κ. Χριστάκην Βαρνάβαν όστις απεχώρησε οίκειοθελώς έκ της υπηρεσίας τόν πληροφορείτε ότι δέν δικαιούται τήν πλη­ ρωμή φιλοδωρήματος άφυπηρετήσεως. Λαμβανομένου ΰ π ' όψιν τών υφισταμένων κανονισμών έπϊ τοΰ προκειμένου, καθώς και τήν γνωμάτευσιν τοϋ νομικοΰ τών Συμβουλίων, ώς επίσης προηγουμένων παρο­ μοίων περιπτώσεων όπου πληρώθη φιλοδώρημα άφυπηρετήσεως, έχουμε τήν γνώμη όπως χορηγήσετε στον έν λόγω ϋπάλληλον τό Οπό τών κανονισμών προνοούμενο ποσό.» It is clear that in this letter, exhibit 2, the Applicant through the Unions, put forward the issue of discrimination, because as it has been alleged in other similar circumstances gratuity had been paid by the Impovement Boards to four other persons on the date of their retirement. It is pertinent, I think to remark that once again the Applicant has never alleged that he has accepted to resign—as his counsel put it—on condition that he will get a gratuity benefit. On November 22, 1966, the District Officer replied to the Secretaries of the Trade Unions, informing them that the Applicant resigned his post voluntarily and that in accord­ ance with the existing Regulations of the Improvement Boards he was not entitled to the payment of any gratuity. Nothing more was done or heard from the Applicant to show that the decision of the Improvement Board not to pay him a gratuity was not considered by him as an act of a final nature; however, on September 4. 1967, nearly one year later, his counsel wrote to the District Officer a letter, exhibit 4, requesting, inter alia, (

1. a)re-examination of the question of gratuity of the Applicant; (
2. b)to be given a duly reasoned reply staling under which Regulation or 572 Regulations he was precluded from receiving the gratuity prayed for; and (
3. c)to be informed on what basis in four other cases such a gratuity had been paid. • Furthermore Applicant's counsel had alleged that the Applicant accepted to resign because he was aware of the decision of the Improvement Boards to pay him a gratuity benefit. It is not in dispute that the Improvement Boards of Nicosia District had accepted the resignation of the Applicant at their separate meetings in July, 1966; furthermore they had reached a decision to pay the Applicant a gratuity after receiving the opinion of their legal adviser that the Applicant was entitled to such gratuity. Although the opinion of the legal adviser was in the affirmative, the decision of the Boards relating to the payment of gratuity was never commu­ nicated to the Applicant. It is a well-established principle of administrative law, that only through communication lawful results of an act are created and, it follows, that the administration can frustrate the act or decision before it reaches theperson to whom it is addressed. See Kyriakopoulos on Greek Administrative Law vol. Β at p. 398; see also the Decision of the Greek Council of State 452/1933. See further Stassinopoulos on Lessons of Administrative Law at pp. 249 and 250 and the cases cited at note 4 at p. 249. On October 5, 1967, counsel for the Respondents replied to Applicant's counsel, referring them to the previous cor­ respondence of the District Officer addressed to his client on October 6, 1966, and to the Trade Unions of PEO and SEK. The Applicant feeling aggrieved, filed a recourse on October 21, 1967, seeking a declaration (
4. a)that the decision of the Respondents and/or either of them communicated to Applicant's counsel on October 5, 1967, is null and void and of no effect whatsoever; and (
5. b)that the omission of Respondents and/or either of them to examine Applicant's complaint as embodied in the letter of his counsel dated September 4, 1967, ought not to have been made. In the Opposition dated December 12, 1967, counsel for the Respondents raised three preliminary objections (
6. a)that therecourse is out of timeand,therefore, inview of paragraph 3 of Article 146 of the Constitution it cannot be entertained by this Court; (
7. b)Respondents' counsel's letter of 5.10.1967 573 1968 Oct. 4 CHRISTAKIS L. VARNAVA v. REPUBLIC (DISTRICT OFFICER NICOSIA AND ANOTHER) 1968 Oct. 4 CHRJSTAKIS L. VARNAVA V. REPUBLIC (DISTRICT OFFICER NICOSIA AND ANOTHER) does not contain any decision of the Respondents and, therefore, no recourse lies against such a letter; (
8. c)Respondents omission to examine Applicant's complaint embodied in Applicant's counsel's letter of 4.9.1967 is not an executory administrative act but a confirmatory act and, therefore, no recourse lies against such an omission. On the first date of the hearingthecaseagainst Respondent 2 was withdrawn and dismissed; and counsel agreed that these legal issues be tried first by the court. I find it convenient to deal first with the second preliminary point of law argued by counsel before me. Counsel for the Respondent has contended that the letter datedOctober 5,1967, exhibit 5,doesnotcontainan executory administrative act or decision and, therefore, it cannot be made the subject of a recourse in this court. I am in agreement with the submission of counsel for the Respondent on this point. It is obvious, in my view, that the said letter is a mere repetition or confirmation of a previous letter of the District Officer in the same matter. It is a well-settled principle of administrative law, and according to Stassinopoulos on the Law of Administrative Disputes, 4th ed., at p. 17 a confirmatory act is one which repeats the contents of a previous executory act and signifies the adherence of the administration to a course already adopted; but when the administration confirms a previous executory act after a new inqui y, then the resulting new act or decision is itself e-xecutory, too. Confirmatory acts or decisions are further dealt with, inter alia, in the Conclusions from the Jurisprudence of the Greek Council of State 1929-1959 at p. 240. From these decisions it is clear that a confirmatory act is not executory; and, therefore, it cannot be the subject of an administrative recourse in Greece. Furthermore it becomes clear from the decisions of our Court that a nonexecutory act cannot be made the subject of a similar administrative recourse in Cyprus, under Article 146, and this is clearly laid down in the case of Kolokassidesand The Republic,

(1965)3 C.L.R. 549 and on appeal

(1965)3 C.L.R. 542, See also Ktenas andAnother (No. I) and 77ie Republic,

(1966)3 C.L.R. 64 at p.

1. However, even counsel for the Applicant has conceded, during the hearing of this preliminary point of law, that the said letter, exhibit 5,did not contain adecision of an executory 574 nature, and made it quite clear that the recourse was based only on omission. Now, with regard to the first point raised by counsel for the Respondent, that the Application is out of time, it is evident in my view, that this recourse was made long after the lapse of 75 days; and as the decision of the Respondent complained of, was communicated to the Applicant by a letter dated October 6, 1966, I find myself in agreement with counsel for the Respondent that this Application is out of time; and it has to be dismissed, because of the pro­ visions of para. 3 of Article 146 of the Constitution, which are mandatory and have to be given effect to in the public interest in all cases. See John Moran and The Republic (Attorney-Generaland Minister of Interior), 1 R.S.C.C,
2. Also the Holy See of Kitium and The Municipal Council of Limassol, 1 R.S.C.C. 15; and Joyce Marcoullides and TheGreekCommunalChamber(Directorof Greek Education), 4 R.S.C.C,
3. But counsel for the Applicant has argued that because there has been an omission on the part of the Respondent to re-examine Applicant's case, the recourse he submitted, is not out of time. The question, therefore, is: Is there an omission on the part of the Respondent to re-examine the case of the Appli­ cant? In my view, in the absence of legislation regulating such matter, there can be no question of an omission on the part of the Respondent, because the administration had no duty to discharge; and because it has decided long ago that the Applicant was not entitled to a gratuity benefit. Further­ more, the refusal of the administration to re-examine the case of the Applicant, with a view to revoking or withdrawing their previous administrative decision or act, is not an act or decision of an executory nature, but only a confirmatory one and, therefore, it cannot become the subject of a recourse under Article 146 of the Constitution. See Kyriakopoulos on Greek Administrative Law vol. Γ at p.
4. See also the case No. 347/1937 reported in the Decisions of the Greek Council of State in 1937, vol. A. 1, p. 814 at p.
5. See further the Conclusions from the Jurisprudence of the Greek Council of State at p. 240, and the cases cited under note 4 9\ Of course, it would have been a different matter, if the 575 1968 Oct. 4 C H R I S ΓΑΚ is L. VARNAVA v. REPUBLIC (DISTRICT OFFICER NICOSIA AND ANOTHER) 1968 Oct. 4 CHRISTAKIS L. VARNAVA v. REPUBLIC (DISTRICT OFFICER NICOSIA AND ANOTHER) administration before replying to the letter of Applicant's counsel, had embarked on a new inquiry into the case of the Applicant. That act or decision although of a confirma­ tory nature, it can be considered as being of an executory nature. See Stassinopoulos on the Law of Administrative Disputes at p.
6. Although, of course, this is not the case, I would like to pose this question for the guidance of the Administration: When does exist a new inquiry? On this point, I would like to quote, from the same textbook of Stassinopoulos from p.
7. It reads: «Πότε υπάρχει νέα έρευνα, είναι ζήτημα πραγματικόν. Θεωρείται δμως γενικώς νέα έρευνα ή λήψις ύπ' δψιν νέων ουσιωδών νομικών ή πραγματικώνστοιχείων, κρίνε­ ται δέ αυστηρώς τό χρησιμοποιηθέν νέον ύλικόν, διότι δέν πρέπει ό άπολέσαςτήν προθεσμίανδια τήν προσβολήυ μιας εκτελεστής πράξεως, υά δύναται νά καταστρατηγή τήν προθεσμίανταΟτην δια της δημιουργίαςνέας πράξεως, ή οποία εξεδόθη κατ' έπίφασιν μέν κατόπιν νέας έρεύνης, κατ' οΰσίαν όμως έτη τη βάσει τών αυτών στοιχείων. Νέα έρευνα υπάρχει Ιδίως έάν, προ της εκδόσεως της νεωτέρας πράξεως, λαμβάυη χώραν έξέτασις στοιχείων κρίσεως νεωστί προκυπτόντων ή προ-υ'παρχόντων μέν άλλα τέως άγνωστων, άτινα νϋν λαμβάνονται προσθέτως δ:ά πρώτην φοράυ υπ* δψιν. 'Ομοίως, νέαν Ιρευναν συνιστφ ή διενέργεια αυτοψίας ή ή συλλογή συμπληρωμα­ τικών έττί της υποθέσεως πληροφοριών.» See also the Conclusions from theJurisprudence of the Greek Council of State p. 241 and the case No. 758/
8. See also the English translation prepared by the Registry of this Court: "When does a new inquiry exist, is a question of fact: In general, it is considered to be a new inquiry the taking into consideration of new substantive legal or real materi­ al, and the new material is meticulously considered, for he who has been out of time in attacking an ixecutory act, should not circumvent such a time limit by the creation of a new act, which it was issued nominally after a new inquiry, but in substance on the basis of the same material. 576 \ 1968 Oct 4 Especially there does exist a new inquiry where, before the issue of the subsequent act, there takes place consideration of newlyproduced material or pre-existing but unknown, which are now taken into consideration in addition, but for the first time. Similarly, it constitutesanewinquiry thecarryingout ofalocalinspection or the collection of additional information in the matter under consideration." Iwouldfurther add that nonewmaterial wasplaced before the Respondent, because the question of discrimination was already before them and from the tenor of the wholecorrespondence written by the Applicant and on his behalf by the trade unions—as I said earlier—it became clear that the Applicant tendered his resignation because he found a better job. In the circumstances and in view of the reasons I have advanced, I would dismiss the Application. Application dismissed. 577 CHRISTAKIS L. VARNAVA V. REPUBLIC (DISTRICT OFFICER NICOSIA AND ANOTHER)