clr/1981/1981_3_195.pdf

(2)of-the Broadcasting Corporation (Terms of Service) Regulations, 1966 which provides that the appointment of ah employee to a permanent post is confirmed after the expiration of the two year probationary period, provided that his conduct and the performance of his duties werein all respects satisfactory. In taking the sub judice decision the respondent relied on a report* ofthe Director of Television Programmes dated 15.2.1980 to the effect that applicant's output was not increased as expected The report is quoted in full at p. 198 post. 195 Kootemeniotis v. C.B.C.

(1981)and that during 1979he committed serious disciplinary offences and addressed to theHead of Department letters of an improper and provocative style. Counsel for the applicantmainly contended: That the report of the Director of Television Programmes 5 dated 15.2.1980ought not to have beentaken into consideration by the respondent Board because its contents being adverse incharacter hadto becommunicated totheapplicant asrequired by the Broadcasting Corporation (Terms of Service), Regulations, 1966, the general principles of Administrative Law and 10 term 8 of the Collective Agreement between the respondent Corporation and the Employees' Trade Unions. Held,that from the facts, correspondence and other records, to be found in the personalfileof theapplicant, it is abundantly clear that every material fact was in substance brought to the knowledge of the applicant (p. 200post); and that, therefore, the complaint that there has been a breach of the general principles of Administrative Law, the Regulations of the respondent Board and term 8 of the Collective Agreement is not a valid one. Held,further, that in any event the non-communication of a confidential report which because of its contents had by law to be communicated to the person concerned, is not a reason to annul a decision subsequently taken (seeKyriakopoullou v. The Republic

(1973)3 C.L.R. 1). 15 20 25 Application dismissed. Cases referred to: Kyriakopoullou v. Republic

(1973)3 C.L.R. 1; Korai v. Cyprus Broadcasting Corporation

(1973)3 C.L.R. 546 at p. 572; 30 Decisions of the GreekCouncil of State in Case Nos. 2345/1962, 1438/1967, 732/1968, 1213/

1. Recourse. Recourse against the decision of the respondent not to confirm applicant's appointment to the post of Sub-titles and Captions Operator. 196 35 3 C.L.R. Kontemeniotis v. C.B.C. C. Clerides, for the applicant. C. Bamballis for G. Polyviou, for the respondent. Cur. adv.vult. A. Loizou J. read the following judgment. By the present 5 recourse the applicant seeks a declaration that the act and/or decision of the respondent Corporation, not to confirm his appointment to the post of Sub-titles and Captions Operator, is null and void and of no effect whatsoever. The applicant was appointed as projectionist on the 1st 10 October 1969 on a very temporary basis. On the 1st July 1970he was appointed to the post of Sub-titles and Captions Operator, which is also referred to in short as "Titler". This post wasabolished and thepost ofTitler/Translator wascreated and the applicant wasappointed to suchpost on the 1st March 15 1978on probation for two years. The salary scale of thefirst post isas follows: £1327x38-1441x46-1487x65-1812x68-
2. The salary scale of the second post is as follows £2059x95-2437x98-
3. 20 25 -30 35 At its meeting of the 21st March 1980, the Board of the respondent Corporation examinedthequestion of the confirmation of appointments of the applicant and another employee who had completed by then two years of service at the post of Titler/Translator. The relevant minute (exhibit 1, red 121) in so far as relevant reads as follows: **_ In his report the Director-General referred to the great shortcomings and the serious disciplinary offences which were committed by Antonis Kontemeniotis. After details for the subject of Kontemeniotis were given by the legal adviser and the Director-General, it was decided .that Mr. Kontemeniotis be not confirmed to the post of Titler/Translator and the Director General was asked to handle the matter within the framework of the existing regulations". This is the decision challenged by this recourse. The Board of the respondent Corporation at its meeting ofthe9thApril 1980,andinviewofthe decisionnot to confirm the applicant decided (exhibit1, red 122) on the suggestion of the Director-General, to create again the abolished post of "Titler" and reappoint the applicant to that post. 197 A. Loizou J. Kontemeniotis v. C.B.C.

(1981)The nonconfirmation of the applicant to the post in question was made under regulation 8

(2)of the Broadcasting Corporation (Terms of Service), Regulations 1966, which provides that the appointment of an employee to a permanent post is confirmed after the expiration of the two year probationary 5 period, provided that his conduct and the performance of his duties were in all respects satisfactory. Inviewof theimpendingmeetingof theBoard ofthe respondent Corporation, the Director of Television Programmes was asked to submit a report with regard to the performance 10 of his duties, the conscientiousness, the devotion, conduct and generally the sense of duty of the applicant (exhibit1 red 113). By letter dated the 15th February 1980 (exhibit 1, red 114) addressed to the Director-General, the Director of Television 15 Programmesrepliedand saidinteralia" Iamsorrytoobserve that their translation work (obviously he was referring also to the other employee, whoseconfirmation was to beexamined simultaneously with that of the applicant), was not increased as expected, but on the contrary it was reduced after their 20 posting to the new post on the 1st March 1978. I submitted to you the relevant report on the 26th November 1979, with detailed elements for their output. Recently, and in order to be more specific in my letters, dated 15th January 1980, and 5th February 1980, I drew their attention to the need 25 that their output should be increased and I asked that for that purpose they utilize the time of their regular afternoon and night shift during which they are not engaged with the test or projection of subtitles. With regard, specifically, to Mr. Kontemeniotis, I must mention that during 1979 he 30 committed serious disciplinary offences and addressed to the head of department letters in an improper and provocative style. Copies of these letters have been sent to you. For all the above reasons I cannot suggest the confirmation of. A. Kontemeniotis to the post of Titler/Translator". On the 15th January 1980 (exhibit1, red 110), the attention of the applicant was drawn by the Director of Television Programmes to his output as a Translator to the effect that same was not satisfactory and further said: "1 draw your attention to the need that your output be increased and I expect that 40 198 35 3 C.L.R. Kontemeniotis τ. C.B.C. A. Loizou J. the period of your shift during which you are not engaged with thepreparation of subtitles and captions of films be bene­ ficially utilized for translations. I expect also thatyou usefully utilize your free time when programmes are broadcasted which 5 are not accompanied by subtitles". It is the case for the applicant that (

1. a)the report of the Director of Television Programmes, dated 15th February 1980, (exhibit 1 red 114), in which reference is made also to a report which this officer submitted on the 26th November 10 1979; (
2. b)the facts relevant to the conduct of the applicant; and (c)the facts relevant to his output,ought not to have been taken intoconsiderationby theBoardof therespondentCorpo­ ration when arriving at thesubjudice decision, as being adverse incharactertheyhadnotbeencommunicatedtohim asrequired 15 by the Regulations earlier mentioned in this judgment, Term 8 of the Collective Agreement (exhibit 3) in force at the time between therespondentCorporationand the Employees' Trade Union and the general principles of Administrative Law. Thereport of the26th November 1979(exhibit 1,red 107(A)), 20 contains the hours of translation work done by the applicant and the other officer whose confirmation was also examined simultaneously with that of theapplicant from 1975 toOctober 1979. It refers to the interruption of their work translation on account of a pending demand for a restructuring of their 25 post and to the work they performed after their appointment in March 1978 to the post of Titler/Translator. It is also noted therein that after their said appointment they have been helping systematically in the checking of the subtitles work, which in the past was done by another official. 30 Inmyviewthisreportcontainsstatementsof facts and figures which could have been thesubject of a complainthadtheybeen inaccurate, and as such misled the Board of the respondent Corporation in arriving at the subject decision, but this is not the case and no such complaint has been made on behalf of 35 the applicant. I have already referred to the contents of the letter of the Director of T.V. Programmes of the 15th January 1980 (exhibit 1, red 110). In the letter of the 5th February 1980 (exhibit 1, red 112) also referred to in the report (exhibit 1, red 114), 199 Λ. Loizou J. Kontemeniotis v. C.B.C.

(1981)the applicant and the other officer were, in response to a letter addressed by them to the same Director, reminded that, their voluntary contribution in translations which started in March 1975, was given due recognition after the intervention of their trade union in 1978 when their duties were reviewed and they 5 were promoted to the post of Titler/Translator; and that since their appointment to thenew post therewas observed a quanti­ tative reduction of their translation work and that by his letter dated 15th January, they had been asked to increase their translation by utilizing theregular afternoon and evening hours 10 of work during which they were not engaged with the checking or projection of subtitles. Further more it was pointed out to them the need that during their morning work they would givemoreassistance to Mr.N.Demetriouwhen he was engaged with the checking of subtitles. 15 With regard to the conductof the applicant all relevant mate­ rialwas inhispersonalfileandeverything hadbeenduly brought to his knowledge. In fact by letter dated the 19th January 1980, (exhibit 1, red 108), the applicant through his advocate expressed his regret and repentance for the offence for which 20 he had been disciplinarily punished by theDirector-General and promised that he would work with zeal and devotion in the performance of his duties and that he would obey the Regulations of the respondent Corporation and the orders of his superiors. Receipt of this letter was acknowledged 25 by the Director-General by his letter dated 24th January 1980, (exhibit J, red 111), whereby the Director-General informed him that in view of his promises and repentance he decided to lift the disciplinary punishment imposed upon him. From the facts as above related with reference to the corre- 30 spondence and other records, to be found in the personal file of the applicant, it is abundantly clear that eveiy material fact was in substance brought to theknowledge of the applicant and therefore the complaint that there has been a breach of the general principles of Administrative Law, the Regulations of 35 the respondent Board and Term 8 of the collective agreement (exhibit 3), is not a valid one. In any event, in the case of Kyriakopoullou v. The Republic

(1973)3 C.L.R. p. 1, I held by reference to theDecisions Nos. 2345/1962, 1438/1967, 732/1968 and 1213/1969, of the Greek 40 200 3 C.L.R. Kontemeniotis v. C.B.C. A. Loizou J. Council of State, that thenon-communication ofa confidential reportwhich because of its contents had by Law to becommunicated to the person concerned, is not a reason to annul a decision subsequently taken. See also the case of Elite Korai 5 v. The CyprusBroadcasting Corporation

(1973)3 C.L.R. p. 546 at p. 572. This principle in my view applies with equal force to the case in hand. The last complaint of the applicant is that his conduct in 1979, which was found to have constituted seriousdisciplinary 10 offences, did not in Law amount to an offence as it waslegitimate and not in breach of any regulation and therefore should not have been taken into consideration when the Board of the respondent Corporation arrived at the sub-judice decision. As it appears from the letters of the Director-General,dated 15 26th July 1979 (exhibit 1, red 99), and 11th October 1979, (exhibit 1, red 106), whereby he was seriously reprimanded and his increments were stopped for six months, and the letter of January 1980, (exhibit1, red 108), written on his behalf by the advocate and to which the Director-General replied by his 20 letterofthe24thJanuary 1980,tothecontentsofwhichreference has already been made, it is evident that the appellant was found tohavecommitted disciplinary offences and ifhewanted to challenge their legality he should havedone sobya recourse to this Court under Article 146 of the Constitution, as in fact 25 he did by recourse No. 392/79, and which was pending at the time the subject decision was taken, it stood therefore in all respectsasavalidadministrativedecision and couldbelegitimately taken into consideration at the time. It was after the subject decision and actually on the 29th August 1980 that 30 a settlement was reached whereby that administrative act complained of therein was revoked and the recourse was withdrawn on the assurance that the "act complained of and the proceedings that followed will never be taken into account against the applicant in future". Consequently no material 35 whatsoever was taken into consideration that could not have been taken when the sub-judice decisionwasarrived at by the Board of the respondent Corporation. Nor there has been established that the views of the Director-General were influenced by any personal motives or that that pending recourse 40 affected the subject decision. 201 A.Loizou J. Kontemeniotisv.C.B.C.

(1981)In the light of all the above I find nothing to suggest that the respondent Corporation in the exercise of its discretion acted in any way in abuse or excess of power or contrary to Law. This recourse therefore is dismissed, but in the circumstances I make no order as to costs. Application dismissed. No order as to costs. 202 5