clr/1981/1981_3_21.pdf

(1981)for extension of his leave of absence, enclosing two medical certificates. One of these certificates referred to the condition of his health in 1971 and not to any sickness from which he suffered at the material time when he made his application. The other certificate was a certificate from a doctor in Athens 5 which referred to complaints about chronic spondyloarthritis which required long-term treatment and it concluded that due to his health condition and his family circumstances he suffered nervous shock and was unable to work for the time being. The respondent Authority by letter dated 12th September 10 again rejected the application for extension of leave and, also, informed the applicant that any "allegation advanced after the events as justification 'for reasons of health' cannot be accepted and restore and cure the effect of his conduct towards his employer because in case of illness of the personnel there 15 are respective provisions in the Regulations which should have been followed". The applicant never returned to Cyprus to resume his duties and the respondent Authority by letter dated 22nd September, 1978 terminated his employment as from the 20th September, 20 1978inaccordancewiththePersonnel Regulations of theAuthority informing him, at the same time, that arrangements could bemade for payment to him of all the benefits to which hewas entitled. In replycounsel for applicant informed the respondent Authority that applicant accepted such termination with the 25 only reservation to claim compensation in respect of "meritorious services". The respondent Authority refused to pay him any compensation for "meritorious services" and hence this recourse which was directed against the decision of the respondent to terminate applicant's services and against the 30 refusal to pay him any compensation for "meritorious services". Under Article 33

(4)(b) of the General Personnel Regulations of the respondent Authority, any unjustified absence from work orthefailure oftheemployeetokeepthetimetableinaccordance with the Regulations applicable,areconsidered tobedisciplinary 35 offences which may lead to the dismissal of such employee; and under Article 15 of the same Regulations, sick leave can only be granted to employees, who are abroad on approved leave of absence, if the employee reports to the Diplomatic ServicesoftheRepubliconwhoserequest hehastobeexamined 40 by a doctor recommended by them and who has to prepare 22 3CX.R. Aniliades v. CYTA a medical report which has to be submitted through them to the Authority. 5 10 Compensation for meritorious servicesisgranted in accordance with the provisions of Article 9 of the above Regulations by virtue of which the Personnel Council of the Authority is empowered to prepare lists of employees who have ended their career satisfactorily and who are entitled to meritorious services benefit. This article, also, provides that "the provisions for meritorious retirement in respect of all ranks of the personnel are applicable only in cases of mutual consent (Authority and employees)"; and that, further, those employees who have been considered as having completed their career meritoriously are retired compulsorily in accordance with Article 20. Held,

(1)with regard to the termination of applicant's services: 15 20 25 30 35 That astheapplicant inapplyingforsick leavehas not complied with the procedure provided by the General Personnel Regulations because he has never reported the matter to the Diplomatic Authorities ofthe Republicand he has never supplied the respondent Authority with a medical certificate of a doctor to whom he had to be referred bytheDiplomatic Services of the Republic, his services have been rightly terminated, in accordance with the said Regulations, due to his failure to resume his duties. Held, further, that the applicant by his letter through his advocate accepted the termination of his employment, reserving only his right to claim compensation in respect of "meritorious services"; and that, therefore, by accepting such termination of employment without any reservation as to any other claim he is estopped from alleging that the act of the Authority by terminating his employment is null and void.

(2)With regard to the claimfor compensationfor "meritorious -services". — - - _ - _ . _ _ That it isclear from the relevant Regulations that for a person to fee placed on the list of employees who have meritoriously completed their career, there must be a mutual agreement of the employee and A c Authority in view of the effect that such emplacement will have on the continuation of employment of the employeeas theresult-ofsuchemplacement isthe compulsory retirement of the employee; that in this case it is clear that applicant never applied to the Authority for his emplacement 23 Aniliades v. CYTA

(1981)on such list in view of his retirement or that there ever was any mutual agreement to that end between the Authority and the applicant; that the services of the applicant were terminated as a result of his failure to resume his duties which wereconsidered by the Authority as essential and had to be continued; 5 that, therefore, the respondent Authority in refusins to pay the applicant any compensation for meritorious services did not act either arbitrarily or in breach of the Regulations, as the name of the applicant did not appear on the listof persons entitled to such benefit inaccordance withtheprocedurecontem- 10 plated by the Regulations but his services had been terminated due to his failure to resume his duties; accordingly his recourse must fail. Application dismissed. Recourse. 15 Recourse against the decision of the respondent whereby the services of the applicant were terminated. L.N. Clerides, for the applicant. A. Hadjioannou, for the respondent. Cur. adv. vult. 20 SAVVIDES J. read the following judgment. Applicant by the present recourse claims— (

1. a)adeclaration that theact or decision of the respondents communicated to the attorney of the applicant on the 23rd September, 1978 whereby the services of 25 the applicant were terminated on the 20th September, 1978 is null and void and of no legal effect. (
2. b)A declaration of the Court that the omission of the respondents to pay the applicant all the benefits and compensation for meritorious services to which 30 applicant was entitled under the law and the Regulations, should not have been made. The facts of the case are briefly as follows: The applicant originally took employment with the Cable and Wireless on the 9th September, 1947 as wireless operator. 35 On the 1st April, 1961 he was transferred to and became an employee of the respondent Authority and on the 1st July, 24 3 C.L.R. Aniliades v. CYTA Savvides J. 1962 he was promoted to the post of Inspector. He continued working in such post at the automatic telephone centre of Nicosia till the 15th August, 1976 when, on his application, he was granted one year's leave of absence abroad without pay 5 which expired on the 14th August, 1978. Such leave of absence was extended by the Authority, at the request of the applicant, for a further period of one year expiring on 14.8.1978, by letter dated 10th June, 1977. Under para. 2 of the said letter which is part of a bundle of documents produced as exhibit 3, the 10 applicant was informed that in case he did not return to resume his duties after the expiration of such leave of absence, his services would be terminated. The material part of this letter reads as follows: 15 " "Εστω els γνώσιν υμών δτι els περίπτωσιν καθ' f\v δεν θά άναλάβητε τά καθήκοντα σας μετά το πέρας της παρα­ χωρηθείσης αδείας απουσίας άνευ απολαβών αί ύπηρεσίαι σας θά τερματισθούν". The English translation of which is as follows: 20 25 30 ' 35 ("You should bear in mind that in case you will not resume your duties after the expiration of the leave of absence without pay granted to you, your services will be termi­ nated"). On the 27th June, 1978 the applicant submitted a new request for further extension of his leave without pay which was refused by the respondent Authority by its letter dated 10th July, 1978 which reads as follows: " 'Αναφέρομαι els τήν έπιστολήν σας ημερομηνίας 27ης 'Ιουνίου 1978 διά το ώς άνω θέμα καΐ πληροφορώ Ομάς δτι ή αίτησις σας διά παράτασιν τή*5 παραχωρηθείσης «is υμάς αδείας άνευ απολαβών δέν δύναται νά έγκριθηκαθ' δτι το άνώτατον δριον της παραχωρούμενης απουσίας άνευ απολαβών βάσει της ύπ' άρ. άν. ΓΔ.5/2/75 εγκυκλίου ημερομηνίας 15ης/4/75 δέν δύναται νά ϋπερβη τά δύο έτη. Οΰτω βάσει τών δρων της παραχωρηθείσης είς υμάς αδείας Θάπρέπει νά άναλάβητε τά καθήκοντασας τήν 15ην Αυγούστου, 1978, καθ* δτι είς περίπτωσιν καθ' f\v δέν θά άναλάβητε τά καθήκοντα σας μετά τό πέρας, της παραχω­ ρηθείσα άδεία5, αί ύπηρεσίαι σας θά τερματισθούν". 25 Sawides J. Aniliades v. CYTA

(1981)The English translation of which is: ("I refer to your letter dated 27th June, 1978in connection with the above subject, and 1 wish to inform you that your application for extensionoftheleavegrantedtoyouwithout pay, cannot be approved, in viewof the fact that the maxi- 5 mum leavewhichcanbegranted without pay in accordance with Circular No. CD.5/2/75 dated 15.4.75,cannot exceed a period of two years. Therefore, in accordance with the terms of the leave granted to you, you must resume your duties on the 15th 10 August, 1958, otherwise, in case you fail to resume your duties after the expiration of your leave, your seivices will be terminated"). Theapplicant onthe 30thJuly, 1978addressed to the respondent Authority the following letter: 15 "1 refer to Cyta's letter LP/A6/4 of 10th instant in reply to mineof 27th June, 1978,inwhich 1 applied for a further six months extension to my two years leave "without pay which ends on the 15th August, 1978 and request your urgent reconsideration to your negative decision, bearing 20 -in mind that such extensions have been granted, to the best of my knowledge, to Messrs: A. Embedoklis, Phivos Loizou, G. Georghiades _ for reasons which could not be more valid and serious than my family's. The particular reason of my original application was 25 on the very serious compassionate grounds which affected myfamily after thekillingof myelder sonduring theevents of 15th July, 1974,fivedaysbefore hewasdueto terminale his two years service with the National Guard. Without elaborating at present, I cannot imagine what 30 more serious reasons made possible further extensions over and above the two years or -if they were more valid thanmy29yearsofsatisfactory serviceandtheperformance, faithfully may I say, along with 'those who were present at 'the airport during the Turkish invasion, of our duty 35 towards our Authority and Country. >l applied for a further 'Six months extension to 'enable "me, 'if possible 'to finalise my -family's'circumstances and '26 3 C.L.R. Aniliades v. CYTA Savvides J. apply to be considered for pension on the terms of satis­ factory service 'Evdokimos Ipiresia' at the appropriate time, if finally I find myself unable to return to Cyprus. 5 10 I fully realise that it is the prerogative of CYTA to accept or turn down any such requests for extensions or considera­ tion for Pension on the grounds of 'Evdokimos Ipiresia', but I also believe that such decisions should be based on the merits and reasons involved and with this in mind, I request your reconsideration for an extension and the possibility of being pensioned on the grounds mentioned above. Sincerely looking forward to your reply at your earliest convenience to make it possible for me to make the neces­ sary appropriate arrangements". 15 20 25 30 In reply to such letter, the respondent Authority informed the applicant by letter dated 9thAugust, 1978 thathis application could not be reconsidered in view of the fact that the Authority could not grant leave of absence abroad for a period extending two years, drawing his attention, once more, to the fact that in case of his failure to resume his duties on the 15th August. 1978, his services would be terminated. On the 14th August, 1978 the applicant sent the following telegram to the respondent: "Chairman Board, CYTA Nicosia. Reference your letter LP/AX/4 9/8/1978. Not extending my unpaid leave as granted others regret last minute difficulties beyond my control prevent me resume duty 15/8/78stop Mr. Stelios Stylianides holding my power of Attorney will contact CYTA". On the 7th September, 1978 applicant sent a letter to the respondent Authority, through his advocate, referring to the previous correspondence between the applicant and the Autho­ rity requesting the respondent Authority to reconsider their 35 decision giving new reasons for which the apphcant could not return to Cyprus to resume his duties. The mateiial part of such letter reads as follows: " Ό πραγματικός λόγος, διά τον όποιον ό ρηθείς πελάτης 27 SawUes J. Aniliades v. CYTA

(1981)μου καί υπάλληλος της 'Αρχής έζήτησε νέαν παράτασιν της αδείας άνευ απολαβών είναι δτι οντος είναι ασθενής καί χρήζει συνεχούς θεραπείας καί παρακολουθήσεως υπό είδικών Ιατρών. Επισυνάπτω προς τοϋτο σχετικά φωτοτυπικά πιστοποιητικά ατιναόμιλοϋν άφ' εαυτών,διάτόείδοςκαίτήν παροϋσαν κατάστασιν της υγείας τοϋ είρημένου υπαλλήλου. 5 "Οθεν, παρακαλείσθε, δττως έν Οψει τών νέων προσκο­ μισθέντων στοιχείων, ήτοι τών Ιατρικών πιστοποιητικών, επανεξετάσετε τήνέν λόγω ύπόθεσιν καί εγκρίνετε τήνζητη- 10 θεΐσαν άδειαν, δι*δσον χρόνον χρειάζεταιθεραπείαν καί παρακολούθησιν ό ρηθείς υπάλληλος" ("The real reason for which my said client and employee of the Authority applied for a new extension of his leave without pay,is that heis sick andneeds continuous treat- 15 ment and follow-up by specialists. 1 enclose, in this respect, photocopies of medical certifi­ cates which speak for themselves astothe present condition of the health of the said employee. You are therefore, requested, inthe light of the new facts 20 put before you, that is, themedical certificates, to re-exa­ mine the said case and approve the leave applied for, so long as it is required by thesaid employee for his treat­ ment"). The two medical certificates attached to thesaid letter, were 25 one from a medical practitioner in Athens, in handwriting, dated 5.9.1978 whereby it is mentioned that theapplicant was suffering from chronic spondylarthritis and that he needed continuous and long treatment and that a year earlier hewas operated in London for larynx trouble and that ever since he 30 was attended by a doctor in London every six months andit concluded as follows: " Ώςέκτών ανωτέρω παθήσεων ώςκαί άλλων οίκογενειακών καταστάσεων ούτος Ιχει υποστεί νευρικόν κλονισμόν καί κατέστη ανίκανος δι1 έργασίαν προς τό παρόν ευρισκόμενος 35 Οπό έντατικήν ίατρικήν παρακολούθησιν καιγιά διάστημα ακόμη ολίγων μηνών". ("Jn the light of the above sickness and for other family 28 3 C.L.R. Aniliades v. CYTA Savvides J. . reasons he has suffered from nervous breakdown and he has become unable, for the time being, to work and he will be under intensive medical observation for a period of a few months"). 5 10 15 20 The other is a photocopy of a letter dated 7th July, 1971 from the Orthopaedic Department of the Royal Masonic Hospital which reads as follows: "This patient came to see me on a visit to London because of persistent pain in his neck and down the right arm for six months. This is associated with impairment of sensa­ tion in the right and little fingers of the right hand. On examination, his neck moves fairly freely in all directions. There was one or two trigger sports in the arm and forearm on the outer side and his biceps reflex is dimi­ nished. His X-Ray shows narrowing of the disc space between 06 and 07. I have advised him to have some more traction when he gets home, and if he continues to have a lot of trouble, one might have to consider fusing the affected vertebrae. I would gladly see him again any time you wish". T!tierespondent Authority replied to counsel for the applicant by letter dated 12th September, 1978 reminding him of the correspondence so far exchanged between the Authority and the applicant and informing him that the applicant failed to 25 comply with his terms of employment and the directions given to him to resume his duties and concluded as follows: 30" 35 "Ούτω καίένόψει τών ωςάνωή περίπτωσιςτοϋ κ. Άνιλιάδη όστις εγκατέλειψε τήν Οπηρεσίαν έΕετάζεται βάσει τών ορών της παραχωρηθείσηςαδείας καί τών κανονισμών της 'Αρχής, οίαδήποτε-δέ-έκ τών-ύστέρων, -'διά λόγους υγείας' δικαιο­ λογία, δέν δύναται νά γίνη δεκτή καί νά επανόρθωση τήν απέναντι της υπηρεσίας στάσιν του καθ' δτι καί είς τάς περιπτώσεις ασθενείαςτοϋπροσωπικού υπάρχουν οί σχετικοί κανονισμοί οΐτινες θά έπρεπε νά ακολουθηθούν". ("Therefore, in the light of the above, the case of Mr. Aniliades who left his work is considered on the basis of the conditions of the leave granted to him and the Regu­ lations of the Authority, any allegation advanced after 29 Savrides J. Aniliades v. CYTA

(1981)the events as justification 'for reasons of health' cannot be accepted andrestore andcure theeffect of his conduct towards his employer because in case of illness of the personnel there arerespective provisions inthe Regulations which should have been followed"). 5 The applicant never returned to Cyprus to resume his duties and the respondent Authority by letter dated 22nd September, 1978 terminated applicant's employment as from the 20th September, 1978, in accordance with thePersonnel Regulations of the Authority informing himat thesame time that arrange- 10 ments could be made for payment to him or to his attorney of all thebenefits to which hewas entitled in accordance with the Regulations of the Providend Fund of the monthly person­ nel of the Authority. In reply to such letter, counsel for applicant informed the 15 respondent Authority by letter dated 10.11.1978 that applicant accepted such termination with the only reservation to claim from the espondent Authority compensation in respect of "meritorious services". Such letter reads as follows: " Ένετάλην παρά του πελάτου μου κ. Άνηλιάδη, νά άνα- 20 φερθώ ειςτήνέπιστολήν Υμών ϋπό ήμερ. 22αςΣεπτεμβρίου, 1978 και είς άπάντησιν νά αναφέρω τά έ£ής:

1. Ό ρηθεϊς πελάτης μου μέ πλήρη έπιφύλαΕιν απάντων τών δικαιωμάτωντουόπως διεκδίκηση παρά της 'Αρχής αποζημιώσεις δι' 'εϋδόκιμον ύπηρεσίαν', αποδέχεται όπως 25 λάβη άπαντα τά υπόλοιπα ωφελήματα άτιναδικαιούται συμφώνα^ Ισχυόντων Κανονισμών.
2. Προς τοΰτο έπισυνημμένως αποστέλλω προς Ομάς φωτοαντίγραφον πληρεϋούσιον έγγραφον δυνάμει τοΰ οποίου 6 πληρεξούσιος αντιπρόσωπος έν Κυπρω τοϋ είρημένου 30 πελάτου μουκ. Στέλιος Στυλιανίδης δικαιούται νά παρα­ λαβή άπαντα τά ωφελήματα τοΰ πελάτου μου,ώς προείρηται, και ύπογράψη πάνάναγκαϊον έγγραφονή άπόδειίιν προς πραγμάτωσιν τοϋ σκοπού τούτου.
3. "Οθεν, καλεϊσθε OTTOS το ταχυτερον ένεργήσητε διάτήν 35 πληρωμήν προς τον πληρεΕούσιον άντιπρόσωπον τού πελάτου μουτά δικαιούμενα ωφελήματα cos ττροείρηται". ("I have been instructed by my client Mr.Aniliades to 30 3 C.L.R. Aniliades v. CYTA Sawides J. refer to your letter dated 22nd September, 1978 addressed to him and in reply to bring to your notice the following:
4. My said client with full reservation of all his rights to claim from the Authority compensation for 'meritonous service' accepts to receive all the other benefits to which he isentitled in accordance with the Regulations in force. 5
5. For such purpose, I enclose herewith photocopy of a general power of attorney by which the attorney in Cyprus of my said client, Mr. Stelios Stylianides is authorised to collect all the benefits to which my client is entitled as above, and sign any necessary document or receipt to give effect to such purpose. 10
6. You are, therefore, asked, as soon as possible to effect payment to the attorney of my client of the benefits to which he is entitled as hereinabove"). 15 The respondent Authority paid to the applicant the benefits provided by the Provided Fund of the permanent monthly employees but refused to pay to him any compensation for 20 "meritorious service". Hence, the present recourse. The legal grounds on which the recourse is based, as set out therein are as follows: 25 30 - 35 "(a) The act and/or decision of the Respondent Authority to terminate the employment of the applicant as from the 20th September, 1978 is 'contrary to para. 3 of Article 21 of the'General Regulations for the Personnel and in consequence it is illegal and devoid of any legal effect. (b) The apphcant served (meritoriously for twenty-nine continuous years in the Respondent Authority i(and also in Cable and Wireless). For such services he was 'entitled «to payment of compensation for meritorious services. In the case of another employee, Tiamely, Throumbos and under .similar circumstances, such compensation was paid .and in consequence, •the failure of -the Respondent Authority to pay the applicant similar compensation, creates a -question •of discrimination within the meaning of Article '28

(2)•of ithe Constitution". 31 Sanides J. Aniliades v. CYTA

(1981)The respondent Authority by its opposition, relied on the following legal grounds: "

(1)The act and/or decision complained of was lawful and was taken in accordance with the law and the respective General Regulations of the Authority, Article 21,paras. 2 &3. 5

(2)TheAuthority willrelyonArticle9,para.7oftheGeneral Regulations and the reservation in the said paragraph whereby it isprovided that theprovisions for meritorious services are applicable only after mutual consent of the 10 Authority and the employees.

(3)The case of the applicant is entirely different from that of Throumbos because the Respondent Authority decided that theservicesof applicant were indispensable and the circumstances of his case wereof suchanature 15 that the Respondent Authority could not consent to the retirement of the applicant from the seivice 'with thebenefit of meritorious services' ". Counsel for the applicant submitted that the applicant was entitled to sick leave on the basis of the medical certificates 20 submitted byhim which leave the respondent Authority refused to grant to him in breach of regulations 15-21 of the General Personnel Regulationsandinconsequencetheact of the respondent Authority to terminate the employment of the applicant was unjustified and should be declared null and void. 25 Dealing with the second part of hisprayer, that is,the failure of the Authority to pay him compensation for "meritorious services" counsel for applicant maintained that the respondent Authority byrefusing suchcompensation,actedin contravention of Article 9

(7)of the Regulations, in view of the fact that 30 applicant due to his long and meritorious service was entitled to such compensation and that in similarcases,and inparticular in the case of one ex employee of the Authority, namely, Throumbos the Authority, under similar circumstances, paid to him such compensation. Counsel for therespondentAuthorityinhis address submitted that the services of the applicant were terminated due to his failure to attend his work after his leave of absence expired and after hewas repeatedly warned of theconsequences of such 32 35 3 C.L.R. Aniliades v. CYTA Savvtde* J. failure and that the allegation of medical grounds was an afterthoughtwhich,inanyevent,didnotcomplywiththeRegulations of the Authority concerning such cases. As to the question of compensation for meritorious services, it washis submission 5 that applicant was not entitled to it as of right but this was a discretiongiven tothe respondent exercised through its personnel council who movesfirstandfillsthe relevant tables or lists with the names of members of the personnel who under the provisions of rule 7 are entitled to be placed on it. He also 10 differentiated the case of the applicant and that of Throumbos in that in thecaseof Throumbos heretired, having reached the normal ageofretirement,whereasapplicant's serviceswereconsidered as still necessary to the respondent Authority and he was not an employee retiring after reaching the normal age 15 of retirement, but an employee whose services were terminated by the Authority after he refused to carry on his duties. Extensive reference has been made by both counsel to the General Personnel Regulations of the Authority and, in particular, to the Articles concerning termination of employment, 20 sick leave, retirement on medical grounds and compensation for meritorious services. I shall therefore refer briefly to such Regulations. Article 21 of the General Personnel Regulations deals with the retirement of employees of the Authority. Paragraph 3 25 of suchArticlewhichismaterial for thepurposes of thepresent recourse, provides that absence of an employee from his work without justification for a period exceeding 30 working days continuouslyor atintervalswithinthesameyear,willbedeemed as an act of resignation of the employee. 30 The provisions as to sick leave are contained in Articles 15, paragraphs 14-2J. Under such provisions an employee is entitled to sick leave with pay for a maximum period of 42 days per annum (paragraph 4). In case of sickness extending over a period of 42 days sick leave can only be granted on the 35 advice of the doctor of theAuthority or the Health Committee of the Authority, for a period upto a maximum of six months with full pay, after the expiration of which, at the discretion of the Health Committee of the Authority, it may be extended for afurther period ofsixmonthsonhalfpay. After theexpira40 tion of such further period his services are either terminated 33 San-ides J. Aniliades v. CYTA

(1981)or if in the opinion of the Health Committee his health may be restored, then a further period of oneyear without pay may be granted (paragraph 15). In the case of employees who are abroad on approved leave of absence sick leave can only be granted if the procedure mentioned therein is adhered to. Such procedure is as follows: 5 The employee has to report to the Diplomatic Services of the Republic on whose request he has to be examined by a doctor recommended bythem andwhohastoprepare a medical report whichhastobesubmitted throughthem totheAuthority. 10 Asto thedismissal ofanemployeeon medicalgroundsprovision ismadein Article 20paragraph 1(b)that incasesof bodily or mental disease rendering the employee unable to perform his duties or any other duties in another kind of work, the employee is dismissed from the employment of the Authority. 15 Such incapacity for work has to be ascertained by the Health Committee consisting of one Government doctor as Chairman, the doctor of the Authority and one doctor recommended by theTrade UnionofthePersonnelinwhichtheemployeebelongs, or by the Personnel of the Authority. Provision is also made 20 as to the examination of employees residing at the time away from the place of the principal office of the Authority and who cannot attend such examination by delegating the examination to twomembers of the Committee who haveto go on the spot, examine the employee and submit their opinion. 25 Under Article 33 provision is made for disciplinary offences whichgivepower totheAuthority todismissanemployeeunder the provisions of Article 20

(1)(c). Under paragraph 4(b) of Article 33,there is provision that any unjustified absence from work or the failure of the employee to keep the time table in 30 accordance with the Regulations applicable, or the unjustified delay or refusal of a person transferred to attend his new post, are considered to be disciplinary offences which may lead to the dismissal of such employee. With theaboveRegulations in mind and the facts before me, 35 1 am coming to consider the first part of the recourse that is, whether the decision of theAuthority to terminate the employment of the applicant is null and void and of no legal effect. It is clear from the letters granting leave of absence to the 34 3 C.L.R. Aniliades v. CYTA Savvides J. applicant that it was repeatedly pointed out to him that such leave of absence could not be extended for a period exceeding two years and that in case he did not resume his duties at the expiration of his leave of absence his services would be termi5 nated. 10 15 20 25 Though the applicant applied several times to the Authority for extension of his leave of absence giving as his grounds for such application personal reasons, such applications were refused and his attention was repeatedly drawn to the fact that if he failed to attend his work his services would be terminated. After the expiration of his leave of absence and after he was informed that the Authority was considering the termination of his services, the applicant on the 7th September, 1978 that is 24 days after his failure to attend his work, by a letter sent through his advocate, advanced for the first time reasons of health in support of his application for extension of his leave of absence, enclosing the two medical certificates referred to earlier in this judgment. One of these certificates refers to the condition of his health in 1971 and not to any sickness from which he suffered at the material time when he made his application. The other certificate is a certificate from a doctor in Athens which refers to complaints about chronic spondyloarthritis which required long-term treatment and it concludes that due to his health condition and his family circumstances he suffered nervous shock and is unable to work for the time being. It is clear that the procedure provided by Article 21

(3)of the General Personnel Regulations has not been complied with. The applicant never reported the matter to the Diplomatic 30 Authorities of the Republic and he has never supplied the respondent Authority with a medical certificate of a doctor to whom he had to be referred by the Diplomatic Services of the Republic. The certificate which was produced could not," in any event, be taken into consideration by the Authority. 35 Irrespective of that, considering the whole correspondence between the parties up to the time of his failure to resume his duties and the termination of his employment, it is evident that the question of health was never raised by the applicant and I have no doubt that this was anafterthought for remedying 40 the breach of his conditions of service which had already been committed and whereby his services were deemed as ended. 35 Savvides J. Aniliades v. CYTA

(1981)Notwithstandingtheabove, however, thereisonemoreground for which his claim underparagraph

(1)of the recourse should fail. Theapplicant by his letter through his advocate dated 10.11.1978 thefull text of which hasalready been mentioned, earlier inthisjudgment, accepted theterminationofhis employ- 5 ment, reserving only hisright toclaim compensationinrespect of "meritorious services". Therefore, by accepting such termi­ nation of employment without anyreservation astoany other claim heisestopped from allegingthat theact of the Authority by terminating his employment is null and void. 10 I come nowto the second leg of the recourse which refers to his claim for compensation for "meritorious services".The relevant provision to which counsel have referred in respect of compensation for meritorious services, is Article 9, para­ graph 7(d). Under such provision, the Personnel Council, 15 in addition toitspowers containedinparagraphs (a)(b)and (

1. c)concerning the preparation of lists of employees entitled to promotion and those who should remain at the same post, is empowered to prepare lists of employees who have ended their career satisfactorily and,whoare entitled tomeritorious 20 services benefit. There is, however, an express provision to such paragraph as follows: "Νοείται δτι αϊ διατάΕεις περί εύδοκίμου άφυπηρετήσεως δι' άπαντα? τους βαθμούς τοϋ Προσωπικούεφαρμόζονται μόνον εΐς ττεριτττώσΈΐξ αμοιβαίας σνγκαταθέσεως ('Αρχής 25 καί Υπαλλήλων)". ("Provided that theprovisions for meritorious retirement in respect of all ranks of the personnel areapplicable only in cases of mutual consent (Authority and employees)"). Further, provision is made under paragraph 15of Article 9 30 that those employees who have been considered as having completed their career meritoriously are retired compulsorily in accordance with Article 20,paragraph (l)(
2. f)of theRegula­ tions which deals with thedismissal of the employees ofthe Authority. It is clear from the said Regulations that for a 35 person tobeplaced onthe list of employees who have merito­ riouslycompletedtheir career,theremustbeamutualagreement of theemployee andtheAuthority in view of the effect that such emplacement will have on the continuation of employ36 3 C.L.R. Aniliades τ. CYTA Sawldes J. ment of the employee as the result of such emplacement is the compulsory retirement of the employee. In the present case it is clear that applicant never applied to the Authority for his emplacement on such list in view cf 5 his retirement or that there ever was any mutual agreement to that end between the Authority and the applicant. The services of the applicant were terminated as a result of his failure to resume his duties which were considered by the Authority as essential and had to be continued. 10 In the case of Throumbos to which reference has been made by the applicant, theprocedure contemplated by the Regulations was properly followed and his name was included in the list of personnel who meritoriously completed their career by mutual consent and upon his emplacement on such list he 15 compulsorily retired from the service of the respondent Autho­ rity. The respondent Authority in refusing to pay the applicant any compensation for meritorious services did not act either arbitrarily or in breach of the Regulations, as the name of the apphcant did not appear on the list of persons entitled to such 20 benefit in accordance with the procedure contemplated by the Regulations but his services had been terminated due to his failure to resume his duties, as I have already mentioned in this judgment. In the result, this recourse fails but in the circumstances of 25 the case, I make no order for costs. Application dismissed. No order as to costs. 37