clr/1979/1979_3_159.pdf

(1979)that his services were treated as having been terminated as from August 8,

1. The-applicant wrote to the respondent on January 29, 1975 and after complaining that he received no reply to his request of August 1, 1974for leave without pay, he applied again for six months* unpaid leave adding that he was not ac- 5 cepting that his services could be terminated because had he known that his said request had been turned down he would have come back to his work. There followed other correspondence between the parties and on June 8, 1976 the respondent wrote to the applicant once 10 again, enclosing copies of letters addressed to him earlier (on March II, 1975 and June 18, 1975) in which respondent stated that applicant's conduct amounted in effect, to resignation from his post and that, therefore, his services were being treated as having been terminated. By letter of July 17, 1976, the applicant informed the respondent that he was not in agreement with the contents of the respondent's letter of June 8, 1976and that he considered himself to be still an employee of the respondent. On July 19, 1976 he applied to be re-employed, repeating that he considered himself to be still an employee of the respondent and that he never resigned from hispost. Bya letter of July 30, 1976the applicant was informed by respondent that his services were regarded as having been terminated as from August 8,
2. Applicant challenged the decision of the respondent to regard his services terminated as above by means of this recourse which was filed on October 9,
3. 20 25 Counsel for the respondent raised the preliminary objection that the recourse was out of time on the ground that it has not been made within seventy-five days from the date when the sub 30 fitdice decision came to the knowledge of the applicant, as provided by Article 146.3 of the Constitution. Counsel for the applicant submitted that the recourse has been filed within time, because the period of time prescribed under Article 146.3 of the Constitution should be reckoned as having 35 commenced on July 30, 1976, inasmuch as lime had ceased to run against the applicant earlier because of the fact that he was continuously seeking a reconsideration of thesubjudice decision. Held, (I) {after concluding that applicant must have received respondent's letter of October I, 1974 by October 31, 1974; that 40 160 15 3 C.L.R. 5 10 15 20 25 30 35 40 Evangelou τ. Electricity Authority the period of seventy—five days expired on January 14, 1975; and that applicant's letter of January 29, 1975 couldnot be treated as an application for administrative review because it had not been made before the expiry of the seventy-five days period vide p. 166 post): That having examined the present case in the light of theprinciples governing running of timewhen a person affected by an administrative decision applies for administrative review of the matter (vide p. 165 post), as well as other relevant prin­ ciples of administrative law and of the provisions of Article
4. 3 of the Constitution,this Court has reached the conclusion that this recourse is out of time, because the applicant did not challenge the decision of the respondent, that his services were terminated, within a period of seventy-five days after he had come to know of such decision, by means of the letter of the respondent dated October 1, 1974 and he did not request a re­ consideration of the decision within the said period.

(2)That, moreover, as by means of the letter of the respondent of June 8, 1976 applicant came to have full knowledge of the sub judice decision and yet he filed this recourse on October 9, 1976, that is well after the expiry of seventy-five days, his present recourse is again out of time by virtue of the provisions of Article 146. 3 of the Constitution.

(3)That though the applicant did, on July 19, 1976, write to the respondent seeking to be reemployed, the letter of July 19, 1976, cannot be treated as an application for administrative review, because it is clear from the contents of the letter of the respondent dated June 8, 1976 that the respondent had taken a final decision in the matter after having considered all the pre­ vious correspondence with the applicant, including his original application for leave without pay dated August 1, 1974 and be­ cause in reply to the letter of the respondent dated June 8, 1976 the applicant did not ask for any further consideration admi­ nistratively of his'case.

(4)That it is not possible to reckon the period of seventy-five days as from when applicant received the letter of the respondent dated July 30, 1976, because that letter is, obviously, not a letter communicating a decision of the respondent of an executory nature but only confirmatory of the previous decision of the respondent which had already been communicated to, and come to the knowledge of the applicant, and it is well established that no recourse can be made against a decision of a confirmatory 161 Eviojelou τ. Electricity Authority (1979; nature because such a decision lacks the attribute of being of an executory nature. Application dismissed. Cases referred t o : Mikrommatis v. Republic, 2 R.S.C.C. 125 at p. 129; 5 Case Nos. 1062/1967, 1775/1969, and 3506/1970 of the Greek Council of State; Neophytou v. Republic, 1964 C.L.R. 280; Ktenas and Another (No. 1) v. Republic

(1966)3 C.L.R. 64 at p. 73 (and on appeal

(1966)3 C.L.R. 820); 10 Varnava v. Republic

(1968)3 C.L.R. 574; Zivlas v. The Municipality of Paphos

(1975)3 C.L.R. 349 at p.

1. Recourse. Recourse against the decision of the respondent to treat the services of the applicant, as a driver-workman, as having been terminated as from August 8,
2. A. Panay'totou, for the applicant. P. Cacoyiannis, for the respondent. 15 20 Cur. adv. vult. TRIANTAFYLLIDES P. read the following judgment. By this recourse the applicant challenges the decision of the respondent Authority to treat the services of the applicant as having been terminated as from August 8,
3. According to the allega­ tion of the applicant such decision was communicated to him 25 by means of a letter dated July 30,
4. The recourse was filed on October 9,
5. Counsel for respondent has raised the preliminary objection that this re­ course is out of time on the ground that it has not been made within seventy-five days from the date when the sub judice decision came to the knowledge of the applicant. Of course, if the allegation of the applicant that the said decision was communicated to him on July 30, 1976, is correct, then the recourse is clearly within time. But, it is the contention of the respondent that such decision came to his knowledge much earlier and, in any event, not later than June 8,
6. The salient facts relevant to the determination of the issue 162 30 35 3 C.L.R. Evangelou v. Electricity Authority Triantafyllides P. of whether or not this recourse was filed within time are as follows: Bymeans of a decision of the respondent taken on September 17, 1974, the services of the applicant, who was in the employ5 ment of the respondent as a driver-workman at Larnaca, were treated as having been terminated on the ground that he had failed to return to his work after the expiration of his leave; the applicant had left Cyprus for the U.S.A. on a month's leave in July 1974, and his leave expired on August 8,
7. 10 The applicant had written to the respondent on August I, 1974, stating that due to the situation prevailing in Cyprus— that is the situation created as a result of the Turkish invasion in Cyprus in the summer of 1974—he could not return to his work and he was asking for leave without pay for a period of 15 six months. The above request of the applicant for more leave was not granted and, as a result, his services were treated as terminated, as aforesaid. He was informed accordingly by letter of October 1, 1974, in which it was stated that the respondent had consi20 dered the matter of his having failed to resume his duties at the expiration of his leave on August 8, 1974, or at the latest by the end of August or at the beginning of September 1974, when the communications of Cyprus with abroad were reestablished, and, therefore, his services were treated as having 25 been terminated as from August 8,
8. The applicant then wrote to the respondent on January 29, 1975, referring to his previous request for six months' leave without pay, in respect of which he complained that he had received no reply; and he added that he was not accepting that 30 his services could be terminated, because had he known that his said request had been turned down he would have come back to his work; therefore, he was asking again for a period of six months' leave without pay, that is up to August 6,
9. On March 11, 1975, the respondent replied to the applicant 35 that his conduct amounted, in effect, to resignation from his post and that, therefore, his services were being treated as having been teiminated, On June 1, 1975, the applicant wrote to the respondent stressing that he had not received a reply to his aforementioned 163 Triantafyllides P. Evangelou v. Electricity Authority

(1979)letter of August 1, 1974, and he requested to be granted leave without pay for a period of two years, that is from August 8, 1974, until August 8, 1976. By means of a letter dated June 18, 1975, he was sent by the respondent a copy of the letter addressed to him earlier on March 11, 1975, to which reference has already been made in this judgment. 5 Then on June 8, 1976, the respondent wrote, once again, to the applicant sending him a copy of the letter addressed to him earlier, as aforesaid, on June 18, 1975, together with a copy 10 of the previous letter to him, of March 1!, 1975; apparently, the said letters had been sent initially to the applicant by double registered post, but were returned to the respondent as not having reached the applicant. By means of the aforementioned letter of June 8, 1976, there 15 were sent to the applicant two cheques, one for the balance of emoluments still due to him, and the other for the amount which was payable to him from the Provident Fund of the employees of ihe respondent Authority. At the time, it appears that the applicant was still in the U.SA , but later on, on July 20 17, 1976, having returned to Cyprus, he informed, by letter of that date, the respondent that he was not in agreement with the contents of the respondent's letter of June 8, 1976, and that he considered himself to be still an employee of the respondent, and he ιUurned the two cheques which had been sent to him, 25 as afoiesaid On July 19, 1976, he applied, in writing, to be reemployed by the respondent at the post previously held by him, and he repeated that he considered himself to be still an employee of the respondent and that he had never resigned from his post. By means of a lettei dated July 30, 1976, the applicant was informed by the respondent "for the last time" that his services were regarded as having been tciminatcd as from August 8, 1974, and that any furthci correspondence with him, in this connection would remain unanswered Counsel foi the applicant has submitted that the present recourse has been filed within time, because the period cf time presented under Article 146 3 of the Constitution should be 164 30 35 3 CL.R. 5 Evangelou v. Electricity Authority Triantafyllides P. reckoned as having commenced on July 30, 1976, inasmuch as time had ceased to run against the applicant earlier because of the fact that he was continuously seeking a reconsideration of the subjudice decision of the respondent to treat his services as having been terminated. It is a well settled principle of law that if a person affected by an administrative decision does not make at once a recourse against this decision, but seeks from the administrative organ which has reached it a reconsideration of the matter, this 10 amounts to an exercise of his right to address a written request to the competent public authority—which right is safeguarded under our Constitution by means of Article 29—and, as a result, the time within which a recourse may be made against the decision complained of ceases to run. 15 The application, however, for reconsideration has to be made before the expiry of the period within which a recourse may be made against the decision concerned; and the time within which a recourse can be made commences to run afresh as from when either a reply is received or as from the expiry 20 of the time—which uncler~~ATticie~"29—is—thirly-days-—-within which a reply ought to have been given, in case no such reply is actually given (see Stasinopoulos on the Law of the Admini­ strative Disputes—Στασινόπουλου, "Δίκαιου τώυ Διοικητικών Διαφορών"

(1964), pp. 208, 209). 25 The above principles of administrative law have been applied in Cyprus in,interalia,Mikrommatis v. TheRepublic, 2 R.S.C.C. 125, 129; and by the Decisions of the Council of State in Greece in cases 1062/1967 and 1775/1969. Having examined in the light of such principles, as well as of other relevant principles of administrative law and of the provisions of Article 146.3, the present case, 1 have reached the conclusion that this recourse is out of time, because the applicant did not challenge the decision of the respondent, that his services were terminated, within a period of scventy35 five days after he had come to know of such decision, by means of the letter of the respondent dated October I, 1974; nor-did he request a reconsideration of the decision within the said period. 30 In his letter dated January 29, 1975, he admits having re165 Triantafyllides P. Evangelou v. Electricity Authority

(1979)ceived the said letter of October 1, 1974, and though I am prepared to give to the applicant the benefit of any reasonable doubt as regards the exact date when he actually received such letter (see, inter alia, Neophytou v. The Republic, 1964 C.L.R. 280), 1 am bound to conclude that he must have received it, 5 in the ordinary course of events, well before the expiry of seventy-five days as from the end of October 1974, having allowed, in this respect, about a month within which, at that time, the letter of the respondent dated October 1, 1974, was bound to reach the applicant in the U.S.A. So, even assuming 10 that the applicant received the said letter by October 31, 1974, at the latest, the relevant period of seventy-five days expired on January 14, 1975, and his letter dated January 29, 1975, cannot be treated as an application for administrative review of the decision to treat his services as having been terminated, 15 which was made within the period of seventy-five days prescribed by Article 146.3 of the Constitution, and which had it been so made it would have had the effect of suspending the running of time in relation to such period, pending either a reply to the letter of the applicant dated January 29, 1975, or 20 until the expiry of the period of thirty days prescribed under Article 29 of the Constitution, whichever of the two happenings would occur earlier. I have said, earlier on, that the applicant must have received the letter of the respondent dated October I, 1974, at the latest 25 by the end of October 1974, because from a respondent's letter of March II. 1975, it appears that a letter of the applicant dated August I, 1974, and posted from the U.S.A. on August 13,

1. was received by the respondent on August 25, 1974; so, even though the applicant contends that he never received 30 the respondent's letter dated March II, 1975, it is legitimate to rely on the dates slated therein concerning the fate of his letter dated August I.
2. in order to deduce approximately how long it would take, at that time, for a Idler to travel from the U.S.A. to Cyprus and vice versa. 35 Even if. however, I were lo assume that the applicant received the letter of the respondent dated October 1, 1974, so belatedly that his application for an administrative review of the sub judice decision of the respondent, which he had put forward by means of his letter of January 29,
3. was made within a 40 166 3 CUR. Evangelou v. Electricity Authority Triantafyllides P. period of seventy-five days after he had come to know of such decision, with the result that the time prescribed under Article 146.3 of the Constitution ceased running against him, and even if 1 were to accept, further, that the applicant never re5 ceived not only the letter of June 18, 1975—which actually he did not receive (see the letter of the respondent dated June 8, 1976—but, also, the letter of the respondent dated March 11, 1975, it is not disputed that he did receive the letter of the respondent dated June
4. 1976, to which he replied by means 10 of a letter dated July 17,
5. By means of the said letter of the respondent of June 8, 1976, the applicant came to have full knowledge of the sub judice decision and yet he filed the present recourse only on October 9, 1976, that is well after the expiry of seventy-five 15 days, and, therefore, his present recourse is out of time by virtue of the provisions of Article 146.3 of the Constitution. Though the applicant did on July 19, 1976, write, once again, to the respondent seeking to be reemployed in the service of the respondent I cannot treat his letter of July 19, 1976, as an 20 applicatiun-for-administrative-rev.iew,_because it is clear from the contents of the letter of the respondent dated June 8, 19767 that the respondent had taken a final decision in the matter after havingconsidered all the previous correspondence with the applicant, including his original application for leave without 25 pay dated August 1, 1974; and, actually, in reply to the letter of the respondent dated June 8, 1976, the applicant did not ask for any further consideration administratively of his case, but some days later, on July 19, 1976, he put forward in writing a request which, apparently, he had made orally on July 17, 30 1976, not for a reconsideration of the decision to treat his services as having been terminated, but only for reemployment by the respondent. It is not possible to reckon the period of seventy-five days within which a recourse could have been filed against the final -^ decision of the respondent in the matter of the termination of the applicant's services as from when he received the letter of the respondent dated July 30, 1976, because that letter is. obviously, not a letter communicating a decision of the respondent of an executory nature, but only confirmatory of the previous 4Q decision of the respondent in the matter, which had already 167 Triantafyllides P. Evangelou v. Electricity Authority

(1979)been communicated to, and come to the knowledge of, the applicant, at the latest when he received the letter of the respondent dated June 8, 1976, if not earlier when he received the letter of the respondent dated October 1, 1974. It is well established that no recourse can be made against 5 a decision of a confirmatory nature, because such a decision lacks the attribute of being of an executory nature (see Ktenas and Another (No. 1) v. The Republic,

(1966)3 C.L.R. 64, 73, and, on appeal,

(1966)3 C.L.R. 820, Varnavav. The Republic

(1968)3 C.L.R. 566, 574, Zivlas v. The Municipality of Paphos, 10

(1975)3 C.L.R. 349, 360; and the decision of the Council of State in Greece in Case 3506/1970). For all the foregoing reasons this recourse is obviously out of time and has to be dismissed as such, but bearing in mind all relevant considerations 1 have decided to make no order 15 as to costs against the applicant. Before concluding 1 would like to point out that at no time has the applicant contended that he has been prevented from filing the present recourse within time either by force majeure or by any other reason which would have prevented time run- 20 ning against him. Finally, I should observe that it has not become necessary for me to hear any evidence on disputed issues of facts related to the question of whether this recourse was filed within, or out, of time, because on the basis only of admitted, or indis- 25 putable, facts it is clear that it is, indeed, out of time. Application dismissed. No order as to costs. 168