(1981)1981 September 9 [SAWIDES, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION ANDREAS AVRAAM, Applicant, v. THE PORTS AUTHORITY OF CYPRUS, Respondent. (CaseNo. 196/79). Portworkers—Licensedporters—Holders ofprofessionallicence which cannotbe cancelled at will withoutany cause—Cancellation of licencefor allegedmisconduct—Reason of cancellation being the result of disciplinary powersthecase was ofadisciplinarynature orof such a nature as tobesimilar todisciplinary andapplicant $ shouldhavebeengiven chanceto contradict anyavermentsagainst him—Failure to affordhiman opportunity to beheard or toput any factors in mitigation amountsto contravention of therules of naturaljustice—Port WorkersLaw, Cap. 184 and thePort Workers(Regulationof Employment) Regulations,1952 regula- jn Hon 12—Cyprus Ports OrganizationLaw, 1973 (Law 38/73 as amended by Law 59/77). Naturalpstice—Rules of—Right to be heard—Suspension oflicence ofporterfor allegedmisconduct asaresult of disciplinarypowers —Proceedings of a disciplinary nature or of sucha nature as to j5 be similar to disciplinary proceedings—Applicant should have beengiven a chanceto contradict any averments against him—• Failure to affordhim an opportunity to be heardor toput any factors in mitigation amounts to a contravention of therules of natural justice. 20 The applicant wasa licensed*porter employedintheLimassol port since the 11thApril, 1955,under the provisions of the Port The terms of his appointment appear at pp. 382-84 post. 368 3 C.L.R. 5 10 15 20 25 30 35 40 Avraam v. Ports Authority Workers Law, Cap. 184 and the Port Workers (Regulation of Employment) Regulations 1952. The powers of appointment and dismissal of porters were originally vested in local boards under the provisions of the Port Workers Law, Cap. 184 but following theenactment of the Cyprus Ports Organization Law, 1973 (Law 38/73 as amended by Law 59/77) such powers were transferred to the CyprusPortsAuthority. The licensed porters id the Limassol port have been organised into a Union and the applicant was the elected Treasurer and Secretary of the Union. On or about September, 1978 the respondent Authority came to know that there was a misappropriation of money in the above Union, amounting to £3,120.—for which the applicant, as the treasurer, was involved and the Director-General of the respondent authority by a memorandum dated February 7, 1979,recommended to the Authority that due to the seriousness of the misappropriation and the responsibility of the applicant his licence should be suspended. The respondent Authority at the meeting of March 22, 1979, after taking into consideration all material facts and the recomendation Of the Director-General decided to cancel the licence of the applicant to work as a licensed porter in the Limassol port. Hence this recourse. Counsel for the applicant mainly contended that though the applicant was not an employee of the respondent Authority hewassubject todisciplinarycontrol over himbythe Authority; that thecancellation ofhislicencearoseout oftheallegedmisappropriation and, therefore, the subjudice decision was a disciplinary action and the applicant could not be condemned for alleged misconduct without being heard. Held, that since the licence wasnot an ordinary licence which could be cancelled at will without any cause whatsoever but it was a professional licence issued by the respondent enabling the applicant to carry out his occupation within the area of the port, an occupation which was of a specialised nature; that since the reason for which the licence was suspended was the result of disciplinary powers exercised by the Licensing Authority by virtue ofpowersvested in it under the Regulations annexed to Cap. 184 and, in particular, under regulation 12 the present case is clearly a case of a disciplinary nature or of proceedings of such a nature as to be similar to disciplinary proceedingsand achanceshouldhavebeengiventothe applicant 369 AYTaam τ. Ports Authority
(1981)to contradict any averments against him; that,therefore, the respondent Authority by failing to afford the applicant an opportunity to be heard to contradict any accusations against him or to put forward factors in mitigation, acted in contra vention of therules of naturaljustice; accordingly thesubjudice decision must be annulled. 5 Held, further, that in view of theprovisions of regulation 12* and the powers vested in the respondent Authority as to the punishment which may be imposed on a port worker who contravenes the provisions of the Regulations or misconducts 10 himself in thecourse or in connectionwith his work which vary from a warning, to suspension for a limited period or cancella tion of his registration, the applicant was entitled to be heard at least for putting forward factors in mitigation which might have led the respondent Authority to reach a different decision 15 concerning the punishment which it was going to impose on the applicant as against the maximum one of cancelling his registration which they decided to impose without hearing the applicant. Subjudice decision annulled. 20 Cases referred to: HjiLouca v. The Republic
(1969)3 C.L.R. 570; Co-Operative Stores of Famagusta v. Republic
(1974)3 C.L.R. 295; Constantinou v. Republic
(1972)3 C.L.R. 116. 25 Recourse. Recourse against the decision of the respondent to terminate applicant's employment as a licensed porter in Limassol port. P. Tsiridou (Mrs.) with Chr. Pourghourides,for the appli cant. P. loannides, for the respondent. Cur. adv. vult. * Regulation 12 provides as follows: "If a port worker contravenes or fails to comply with any provisions of these Regulations or misconducts himself in the course of or in connection with his work then, without prejudice to any other liability he may incur under these Regulations or any other Law, the Board may— (
- a)warn him; or (
- b)suspend him from work for a period not exceeding three months and suspend his registration card accordingly; or (
- c)give him fifteen days notice of cancellation of registration; or (
- d)cancel his registration and registration card forthwith". 370 30 3 CL.R. Arraam v. Ports Authority SAVVIDES J. read the following judgment. The applicant is a licensed porter employed in the Limassol port since llth April, 1955 under the provisions of the Port Workers Law, Cap. 184 and the Port Workers (Regulation of Employment) 5 Regulations, 1952 which were published as a Schedule at the end of Cap. 184. The powers of employment and dismissal were vested under the provisions of Cap. 184 in local boards established under theprovisions of Cap. 184. Later, the Cyprus Ports Organisation was established by Law 38/73 to which all 10 the powers vested in the local boards were transferred. Such transfer is provided by section 10
(3)of the said Law. By Law 59/77 the word "Organization" was substituted by the word "Authority" and, thus, the Cypius Ports Authority came into existence. The term "port worker" as defined in Cap. 184, 15 was replaced by the term "licensed porter" by Law 55/68, but the Regulations regulating the employment of licensed porters are still the ones which appear as a Schedule to Cap. 187. The procedure for the registration of a person as a licensed 20 porter and the method of striking out such person from the Register of licensed porters is prescribed by the Rules and it is shortly as follows:-" The respondent Authority is empowered under the Regulations to keep a Register for the registration of licensed porters. 25 A person who wants to be so registered has to apply to the respondent Authority for hisnameto beentered on the Register. No person is allowed to work as a port worker or be employed by anybody in any port without such person being registered as a licensed porter under the provisions of the Law and the 30 Regulations. Regulation 12 provides the mode of striking the name of a licensed porter from the Register. Such provision reads as follows: 35 "If a port worker contravenes or fails to comply with any provisions of these Regulations or misconducts himself in the course of or in connection with his work then, without prejudice to any other liability he may incur under 371 Sawides J. Avraam v. Ports Authority
(1981)these Regulations or any otjier Law, the Board may— (
- a)warn him; or (
- b)suspend him from work for a period not exceeding three months and suspend his registration card accord ingly; or 5 (
- c)givehim fifteen days notice of cancellation of registra tion; or (
- d)cancel his registration and legistration aard forthwith". Thelicensed pollers in the Limassol port have been organised into a union under the name Limassol Licensed Porters Asso- 10 ciation and the applicant was a member of such Unionand was elected as the Treasurer and Secretary of the Union. The employment of pprt workers is done through their Union and anybody who requires the services of port workers has to apply to the Union and the payment of their remuneration is made 15 to them through this Union. On or about September, 1978 it came to the knowledge of the respondent Authority that there was misappropriation of money in the Limassol Licensed Porters Association for which the applicant, as the Treasurer, was involved. On 19th 20 September, 1978 the Committee of the Association sent to the General Manager of the respondent the following letter (exhibit 1 attached to the opposition). "Διά Tfjs παρούσης μας έπιθυμοΰμεν νά φέρωμενfitsγνώσιν ύμων τά κάτωθι:- 25 Τήν 11.9,78 πάντα τά μέλη τοϋ Συνδέσμου μα*συνηλθον εΐ? έκτακτον Γενικήν Συνέλευσιν διαναεπιληφθούνώρισμίνων ατασθαλιών πού προέκυψαν είς τό ΤσμεΤον τοΰΣυνδέσμου έκ μέρους τοΰ κυρίου Άνδρία 'Αβραάμ, Ταμείου καΐ Γραμ ματέως τοϋ Συνδέσμου μας. 30 Κατά τήν ώς άνω σννέλευσιν ό κύριο? 'Ανδρέας 'Αβραάμ ξθεσ*ν εκουσίως τήν παραίτηση»τουενώπιοντη?Συνελεύσεως από Ταμείσν καΐ Γραμματέως καΐ αΰτη Ιγένντο ομοφώνως άποδϊκτή ΰπό τη$ Συνελεύσεως. 'Ωσαύτωςόκύριος 'Ανδρέας 'Αβραάμάνέλαβεν τήνύποχρέ- 35 ωσιν νάέπιστρέψη είς τό Ταμεϊον τοϋ Συνδέσμου τό ποσόν 372 3 C.L.R. AYinam v. Ports Authority Sawides J. των Λ.Κ.600—τό όποιον άνεγνώρισεν δτι έλλείπη έκ τοΰ Ταμείου καΐ ή ολομέλεια της Συνελεύσεως απεδέχθηομοφώνως τήν εττιστροφήν τοΰ έν λόγω ποσοϋ είς τό Ταμεΐον τοϋ Συν δέσμου. 5 10 15 Τήνεπομένητηςώς άνωΣυνεδριάσεωςμέλοςτής Επιτροπής τοϋ Συνδέσμου άνέφερεν δτι ώρισμένα μέλη τοΰ Συνδέσμου είσηγήθησαν τόν έκ νέου Ιλεγχον των λογιστικών βιβλίων τοϋ Συνδέσμου άπό της 1ης 'ΐουλίου, 1977 καΐ εντεύθεν ύπό των Λογιστών-'Ελεγκτών τοϋ Συνδέσμου, τό έν λόγω θέμα όμωςδέν ήγέρθη κατά τήνΣυνέλευσινκαΐδέν ελήφθηάπόφασις, απλώς τό άναφέρομεν. Λόγω τηςεύδοκίμουυπηρεσίαςτοΰκυρίου'ΑνδρέαΑβραάμ έπίπολλάετηείςτόνΣυνδεσμονκαΐτωνπολλαπλώνυπηρεσιών πού προσέφερεν χάριν της προόδου τοΰ Συνδέσμου μέχρι σήμερον ή Συνέλευσις τών μελών τοϋ Συνδέσμου άπεφάσισεν ομοφώνως όπως τό όλον θέμα παραμείνει ώς έσωτερικόν θέμα τοΰ Συνδέσμου καΐ παράκλησις όλων τών μελών είναι όπως μή λάβη άλλην περαιτέρω έκτασιν". ("We hereby wish to bring to your notice the following:- 20 On the 11th September, 1978 all the members of our Union assembled at an extraordinary general meeting in order to consider certain irregularities which appeared in the accounts of the Union on the part of Mr. Andreas Avraam, Treasurer and Secretary of the Union. 25 During the meeting Mr. Andreas Avraam voluntarily submitted his resignation to the meeting from Treasurer and Secretary and which was accepted unanimously by the meeting. 30 35 Mr. Andreas Avraam also undertook the obligation to refund to the fund of the Union the sum of GE600- which he acknowledged thaHt was missingfrom the fund and all the members of the meeting accepted unanimously the refund of the said amount into the fund of the Union. The day after the above meeting a member of the Union state-d that some members of the Union suggested a new audit of the books of accounts of the Union but the said matter was not brought up at the meeting and no decision was taken, and we simply refer to it. 373 Savvides J. Avraam v. Ports Authority
(1981)Due to the satisfactory services of Mr. Andreas Avraam for many years in the Union and the many services which he rendered for the progress of the Union until today, the meeting of the members of the Umon decided una nimously that the whole matter remain as an internal affair of the Union and the request of all the members is that it should not be pursued further")· 5 The respondent Authority by letter dated 23.9.1978 addressed to the Limassol Licensed Porters Association, asked for the examination of the books of accounts of the Union and that a 10 copy of the audited accounts be sent to the respondent. By letter dated 2.2.1979 (exhibit 4 attached to the opposition) the Port Manager of the Limassol port sent to the General Director of the respondent Authority a report of the auditors, Messrs. Metaxas Loizides Syrimis Christofides & Co., dated 28.12.1978 15 (exhibit 5) concerning the inquiry which they carried out in connection with the financial deficiencies which disclosed a deficiency of C£3,120.—in the accounts kept by the applicant. He also enclosed a letter dated 1.2.1975 (exhibit 6) sent through him and addressed to the General Director of the respondent 20 Authority by the Secretary of the Limassol Licensed Porters Association in connection with the case. The contents of exhibit 4 read as follows: " Έσωκλείω αναφορά τών λογιστών κ.κ. Μετα£α, Λοϊζίδη, Συρίμη, Χριστοφίδη & Σία, προς τήν 'Επιτροπή τοϋ Συνδέ- 25 σμου 'Αδειούχων Λιμενικών 'Αχθοφόρων της Λεμεσού, ή οποία αναφέρεταισέ ατασθαλίεςτού πρώην ταμίακ. 'Ανδρέα Αβραάμ πού ανέρχονται σέ ύψος £3,120.350 μ'ιλς για τήν περίοδο 12/1-18/5/
- 'Επίσης έσωκλείω επιστολή υπογεγραμμένη από τόν κ. Φαντομα προς έσδς, με τήν οποία γνωστοποιεί ότι, κατόπιν έκτακτηςγενικής συνέλευσης πού έγινε OTU 20/11/78, αποφασίστηκε όπως επιστραφεί τό ποσόν άπό τόν 'Ανδρέα "Αβραάμ καΐ ό ίδιος νά παραμείνει μέλος τού Συνδέσμου. Δέν θά ήθελα στό παρόν στάδιο νά επεκταθώ έτη τοϋ θέ- 35 ματος, θά ήθελα όμως νά σας αναφέρω ότι στό παρελθόνά τέως Διευθυντής Τμήματος Λιμένων ISicoEe άπό τόν Σύνδεσμο ενα μέλος του γιά κλοπή 25 σελινιών μόνον. 'Επίσης είμαι της γνώμης ότι δέν εναπόκειται στην Γενική Συνέλευση νά 3 74 30 3 C.L.R. Avraam v. Ports Authority Sarvides J. αποφασίζει &v.τά θέμα θά θεωρείται λήϋαν, άλλα στην Διεύ θυνση της 'Αρχής Λιμένων". 5 ("I enclose the report of the accountants Messrs. Metaxas, Loizides, Syrimis, Christofides & Co., to the committee of the Limassol Licensed Porters Association which refers . to deficiencies of the ex-treasurer Mr. Andreas Avraam, which amount to£3,120.350milsfor theperiod 12/1-18/5/
- 10 I also enclose a letter signed by Mr. Fantoma to you, whereby he is informing that after an extraordinary general meeting, which.took place on 20/11/78, it was decided that the money be refunded by Mr. Andreas Avraam and that he will remain a member of the Union. 15 20 I would not like at this stage to say more oh the subject, but I would like to state that in the past the ex-Director of the Department of Ports has expelled from the Union one of its members for stealing 25 shillings only. I am also of the view that it is not for the general meeting to decide if the matter will be considered as ended, but for the Management of the Ports Authority"). And the contents of exhibit 6 are as follows :" Διά της παρούσης μαςέπιθυμούμεν νάσας πληροφορήσωμεν ότι τήν. 20.11.78 έπραγματοποιήθη έκτακτη γενική συνέ-, λευσις τών μελών τοϋ Συνδέσμου μαςκαΐ επελήφθητοϋθέματος τοΰ πρώην Ταμεία τοϋ Συνδέσμου κυρίου 'Ανδρέα 'Αβραάμ. 25 30 35 Κατά τήν ώς άνω συνέλευσιν ένημερώθησαν τά μέλη λεπτο μερώς ΰπό τών ελεγκτών τοΰ Συνδέσμου περί τοϋ έλλείματος τό όποιον προέκυψεν κατά τόν χρόνον της διαχειρήσεως ύπό τοΰ προαναφερθέντος Ταμείου. Ό παριστάμενοςείς τήν συνέλευσιν κύριος 'Ανδρέας 'Αβραάμ απεδέχθη νά έπιστρέψη είς τόν Σύνδεσμον όλόκληρον τό ποσόν άνερχόμενον είς £3120 πράγμα τό όποιον εκαμεν εντός ενός μηνός άπό της ημέρας της Συνελεύσεως. Κατόπιν τούτου ή Συνέλευσις απεφάσισε ομοφώνως όπως τό θέμα θεωρηθη λήΣαν καΐ όπως ό κύριος 'Ανδρέας 'Αβραάμ παραμείνη ώς μέλος τοΰ Συνδέσμου". ("We hereby wish to inform youtha ton20.11.78an extra375 Sarvides J. Avraam v. PortsAuthority
(1981)ordinary general meeting of the members of our Union took place and studied the subject of the ex-treasurcr of the Union Mr. Andreas Avraam. During the above meeting the members were informed in detail by the auditors of the Union about the deficiency 5 which resulted during the period of management by the above treasurer. Mr. Andreas Avraam who was present at the above meeting accepted to refund to the Union the whole sum amounting to £3,120.-, which he did within one month from the day of the meeting. 10 After this the meeting decided unanimously that the matter be considered as having come to an end and that Mr. Andreas Avraam remain as a member of theUnion")· The General Director of the respondent Authority, by a 15 memorandum dated 7.2.1979 addressed to the respondent and which is exhibit 7 attached to the opposition, recommended that due to the seriousness of the misappropriations and the responsibility of the applicant, his licence should be suspended. The respondent Authority at its meeting of the 22.3.1979, 20 after taking into consideration all material facts and the recom mendation of the General Director,decided to cancel the licence of the applicant to work as a licensed porter in the Limassol port and authorised the General Director to send a letter in that respect to the applicant. As a result, the General Director 25 of the respondent on 26.3.1979 sent to the applicant the letter which is attached to the opposition as exhibit 9 and which reads as follows:"Πληροφορούμαστε άπότόν Σύνδεσμοτων'Αδειούχων 'Αχθο φόρων τού λιμανιού της ΛΓμεσοΰ τοΰ οποίου είσαστε μέλος, 30 ότι κατά τήν διάρκειαν της διαχείρισης τοΰ ταμείου τοΰ Συνδέσμου άπό σας έχει προκύψει Ιλλειμα £3,120 λιρών καί Οτι ύστερα άπά σχετική έρευνα έχει διαπιστωθεί ότι τό έΤχλειμα προέκυψε άπό δικές σας ενέργειες, ή ή ευθύνη γι' αυτό οφείλεται σέ σας. 35
- Λυπούμαι νά σας πληροφορήσω ότι ή "Αρχή, ύστερα άπό προσεκτική μελέτη τοΰ θέματος καί άφοϋ έστάθμισε όλους τους παράγοντες αποφάσισε νά μήν σας επιτρέψει 376 3 CX.R. Avraam v. Ports Authority Savudes J. νά απασχολείστε πιάσάναδειούχος αχθοφόρος στό λιμάνι της Λεμεσού. 5 10 15 20 25
- Παρακαλώ νά φροντίσετε νά τακτοποιήσετε όλεςτΙς τΙς εκκρεμότητες πούέχετε μέτόν Σύνδεσμο τών 'Αδειούχων Αχθοφόρων καΐ νάσταματήσετε σάναδειούχος 'Αχθοφόρος μέσα στό λιμενικό χώρο άπό τήν 1η τοΰ Μάη 1979". "(We arcinformed by the Limassol Licensed Porters Asso ciation of which youarea member, that during themana gement of the accounts of the Union by you a deficiency of £3,120hasresulted andthatafter therelative investigation it has been ascertained that the deficiency has resulted from your actions or the lesponsibility for this is dueto you.
- I regret to inform you that the Authority, after a careful examination of the matter and after weighing all the factors hasdecided not toallow youto work any more as a licensed porter in the Limassol port. Please try to arrange all outstanding matters which you have with the Limassol Licensed Porters Association and stop as a licensed porter intheport area as from 1st May, 1979"). Jn consequence thereof, the applicantfiledthepresent recourse whereby he prays fora declaration ofthe Court thatthe decision of the respondent Authority to terminate his employment as a Ucensed porter in Limassol port is null and void and ofno legal effect. The grounds of law set out in support of the application, are as follows:- 30 35
(1)The decision of the respondent was taken in violation of the Constitution because the"applicant was dismissed from his post as a hcensed porter without having been invited to offer an explanation and without the legal procedure being followed.
(2)Bythe decision of the respondent Authority the applicant was found guilty of an offence without having given him the right to defend himself.
(3)Thedecision of the respondent Authority was taken in 377 Sawides J. Avraam v. Ports Authority
(1981)excess and in abuse of power because they did not take into consideration all the facts and they ignored facts which could lead to the acquittal of the applicant from any responsibility.
(4)The decision of the respondent Authority was taken in violation of the rules of natural justice. 5 By its opposition the respondent Authority denies that the decision wastaken illegallyor wrongly and alleges that thesaid decision was taken lawfully and in the proper exercise of the powers vested in the respondent. 10 Counsel for the applicant in arguing his case, submitted that the applicant, though not an employee of the Cyprus Ports Authority, nevertheless was subject to disciplinary control over him by the Authority. Such disciplinary control is not unrestricted and it isgoverned by the Regulations. In deciding 15 whether there is a cause as provided by the Regulations, the Authority, in the same way as all other bodies exercising disciplinary control over professional people, was under a duty to act fairly and impartially, that is to say, it had a duty to offer to the accused a hearing. He went on to say that though the 20 Regulations are silent as to any procedure for a hearing, nevertheless it has been established that nobody can be tried without being given a chance to be heard. In the present case, it is clear that the cancellation of the applicant's registration arose out of an alleged deficit in the accounts ofthe Limassol Porters 25 Association. So, the decision of the respondent Authority was a disciplinary action, and, being so, the applicant could not be condemned for alleged misconduct without making his defence. And, he concluded his argument by submitting that if theapplicant wascalled bythe respondent Authority to make 30 his defence, there were many possibilities open. He could havebeen warned orhecouldhavebeen suspendedfor acertain period or indefinitely, and nobody can say with certainty that if he was heard, inevitably he would have been dismissed. Counsel for the respondent Authority contended that the 35 principlesof naturaljusticehad not beenviolated inthe present casebecause therespondent Authority had before it all material facts which were uncontested and, therefore, therewasnoviolation of the rule "audi alteram partem". Counsel further alleged 378 3 C.L.R. 5 10 15 20 25 30 Avraam v. Ports Authority Sawides J. that the respondent Authority, by virtue of the powers vested in it under the Law, was authorized to issuepermits for entrance in the harbour or for carrying out any work within a port. By virtue of the Regulations, therespondent Authorityhas absolute authority to grant or refuse entry permits or employment permits to any person within the port area, and he referred to rules 15 and 125 of the Regulations made by the Authority under the provisions of Law 38/73. He further submitted that it is a general principle of Administrative Law that the person who isauthorised togivea licence isalso authorised to withdraw such licence at any time and that, in any event, the violation of any conditions under which the licence is issued are a sufficient legalground for suspending suchlicence, and, even without any special terms, a licence may be suspended on grounds of public interest; furthermore, that there is no relationship of employer and employee between the applicant and the respondent. The applicant is not occupying a post giving him a right of hearing before the exercise of any disciplinary power over him. Article 122 of the Constitution expressly refers to who are considered as public servants, and the applicant does not fall within any of the said categories. He concluded by submitting that incaseswheretherelationship of master and servant doesexistand, inparticular, incaseswherethequestionof licence comes into play, the Authority is bound to act fairly. The Authority is empowered to grant licences for work in the ports and revoke such licences and, by doing so it is not exercising any disciplinary authority over the persons to whom the licences are issued. In any event in the present case the Authority acted after a due inquiry in all circumstances of. the case and after it was satisfied that the applicant was guilty of serious misconduct. Once reference has been made by counsel for the respondent to the Regulations made under Law 38/73by which the respondent Authority has been established, I shall deal briefly with 35 such Regulations. The said Regulations were published in the official Gazette No. 1249 of 16th January, 1976, (Supplement No. 3) Notification No. 8 and are referred to as "The Ports Authority (Operation of Port Areas) Regulations, 1976", and provide as to the mode of the exercise of the powers of the 40 respondent Authority concerning the operation of the ports, its powers over the property of the Authority, its licensing of 379 Sawides J. Avraam v. Ports Authority
(1981)visitors and other persons to enter the port areas, regulation and control of vessels within a port area, the mode of arrival and departure of ships and of navigation and anchoring of ships within the ports, discharge of dangerous goods and generally any matters connected with the safe and proper operation of the ports in the exercise of the powers vested in the Authority by Law 38/73. 5 The said powers are contemplated by section 10
(2)of Law 38/73. In addition to such powers by section 10
(3)of the said Law, provision is made that irrespective and without prejudice '0 to theprovisionsoftheprevioussub-sections ofsection 10, any powers vested in the Ports Departmentor the Director thereof by the provisions of the lawswhich are mentioned inthe first schedule set out in the said Law, would, as from a date to be publishedintheGazetteandwhichwouldbefixedbytheCouncil 15 of Ministers, vest in the Director of the Ports Authority. One ofthesaid lawssetoutinsuchscheduleis"TheLicensed Porters (Regulation of Employment) Law", Cap. 184 as amended by Laws 5/60 and 55/68. By Notification in the Gazette under No. 131 in Supplement 3 to the Cyprus Gazette of the 12th 20 May, 1977,the decision of the Council of Ministersispublished wherebythe provisions of section 10
(3)of Law 38/73comeinto operation, and the powers which were vested till that day in any other Authority by virtue of the said laws would, as from such date, be exercised by the respondent Authority. 25 Furthermore, by the provisions of section 40 of Law 38/73, certain laws which are set out in the third Schedule to the said Lawwill bedeemed as repealed to suchextent andasfrom such date as by special law provision would be made. One of the laws which is set out in the Third Schedule is the Licensed 30 Porters Regulation Law, Cap. 184. No publication has so far been madethat such lawisrepealed. Theonly modification that has been effected is that the powers under sections 2 and 2(a)of the said Law, as subsequently amended, were transferred to the respondent Authority as from 12th May, 1977 when 35 Notification 131 was published. It is within the powers of the Authority under section 10
(2)of Law 38/73 to prohibit the entry into any port of any person or impose any conditions for such entry. Under section 30, sub-section
(1)of Law 38/73therespondent Authority isautho- 40 380 3 C.L.R. Avraam v. Ports Authority Sawides J. rised to make regulations in the following respect: Under paragraph (γ)concerning theentrance,stay andexit of persons or animals within theport areas or thedoing of anyactwithin such area; under sub-paragraph (η) concerning the customs 5 porter and other labourers employed within the port areas and thegranting of permits for the exercise of such occupations, and, under sub-paragraph (d) the regulation of the safe and methodic exercise of works within theport area and provision for the exclusion of anylazy, troublesome or other undesirable 10 person. Regulation 15,towhich reference hasbeen made by counsel for the respondents, refers to the exercise of the powers under sections 10
(2)and under sections 30
(1)(y) and
(5)which read as follows: 15 20 "30
(1)Τη έγκρίσει τοΰ 'Υπουργικού Συμβουλίου ό 'Οργα νισμός κέκτηταιέϋουσίαννάέκδίδη Κανονισμούςδιάτήνκαλντέραν έφαρμογήν τών διατάξεων τοΰ παρόντος Νόμουκαι τήν &σκησιν τών αρμοδιοτήτων αυτού, Ιδία δέ, καΐ άνευ επηρεασμού της γενικότητος της ανωτέρω έ£ουσίας,καθ' όσον άφορα είς απαντάς ή τινας τώνκάτωθι σκοπών: (γ) ρύθμισιντης εΙσόδου,παραμονής καΐέΐόδουπροσώ πων ή ζώων είς τάς περιοχάς λιμένων ή την τέλεσιν οίασδήποτε πράΕεως εντός τών τοιούτων περιοχών 25 30 35
(5)ρύθμισιν της ασφαλούς καϊ μεθοδικής ασκήσεως εργασιών εντός τών περιοχών λιμένων καΐ πρόνοιαν διά τόν άποκλεισμόν ή τήνάπομάκρυνσιν Ικτών τοιού των περιοχών παντός άργοΰ, τάραχου ή έτερου ανε πιθύμητου προσώπου". ("30.-
(1)TheOrganization may, with theapproval of the Council of Ministeis, make regulations in respect of the exercise of its functions and, in particular, and without prejudice to the generality of the foregoing power, may make regulations in respect of all or any of the following matters— (c) regulating theentry andexit of persons or animals within port precincts or the performance of anyact therein; (d)regulating thesafe and orderly discharge of business 381 Sawides J. Avraam v. Ports Authority
(1981)within port precincts and providing for the exclusion and removal from port precincts of idle or disorderly or other undesirable person;"). Regulation 125 provides that the Authority may at any time cancel,amend or impose anyadditional conditions toany licence issued by it, for any cause or without any cause and without any obligation to give any reason for so doing. 5 Reading the Regulations made under the provisions of Law 38/73, one can see that no express provision is made as to the power which is given to the Authority under section 30, para- 10 graph (η) of Law 38/73, that is, concerning the employment of Customs porters and other labourers employed within the harbour. The reason for not including any provision in that respect is obvious, because the already existing Regulations made by virtue of the Licensed Porters (Regulation of Employ- 15 ment) Law CAP 184 were in force and made ample provision concerning the licensing and dispensation of licences of hcensed porters. Therefore, the provisions of regulations 15 and 125 have no direct application in the case of licensed porters but they apply to cases of all other persons who may be hcensed 20 to enter or stay in the harbour for a limited purpose. In the case of the licensed porters, what is applicable is Cap. 184 and the Regulations made by virtue thereof. It is material for the purposes of the present action for one to look into the nature of the licence held by the applicant. 25 Such licence was issued to him in 1956 and is embodied in a letter sent to the applicant by the Director of the Department of Ports which was the appropriate authority at the material time. Such licence is Appendix Ά ' attached to the Opposition of the respondent and it reads as follows: 30 "Sir, I have much pleasure in informing you that you have as from today been approved by me to handle, and engage in handling, within the Customs or Port Area of any goods upon their discharge from any ship, or other vessel to 35 a pier or wharf, until delivery of such goods out of customs control in the following conditions: (
- a)You will be examined immediately and produce to 382 3 C.L.R. AYraam v. Ports Authority Sawides J. meacertificate bya Government medicalofficer ofphysical fitness. 5 (b)Your appointment issubject to aprobationary period of 2 years and upon my satisfaction that you are of good police report. (
- c)Your duties will include the usual obligations of a Licensed Porter, but you may be called upon to perform any other duties that may be allotted to you in respect of handling the goods in the Port Area. 10 15 (
- d)You will abide faithfully and diligently by the rules and regulations which will be made and approved by me. Copy of these rules and regulations is available for your perusal at any Port or Customs station. (
- e)Acceptance of this appointment is acknowledgment onyourpart thatyoureadthe saidrules andregulationsfor strict observance. (
- f)Your earnings will be based on equal shares with the remaining porters. 20 (
- g)You will contribute according to a scale approved by me to the guarantee Fund and any other fund which may from time to time be prescribed by me. 25 (
- h)You will be required on appointment to pay to the porters association your proportion of the value of the gear used by them as this is estimated at the time of your engagement. 30 (
- i)You will abstain from any malpractice, contravention of customs and poit regulation, and upon your proving within the probationary period a useful man to your Association, I will confirm you as a permanent porter with all rights and responsibilities that thisappointment mayimply. (
- j)You will be compelled to retire on your attaining the age of 65 provided you are medically fit to carry out the duties of a porter. 35 (
- k)You will be required to produce a birth certificate attesting your correct age at thetimeof your appointment.
(1)This appointment isconditional to your being always 383 Sawides J. Avraam v. Ports Authority
(1981)obedient and willingto carry out the duties allotted to you by your superiors. 2. If you are prepared to accept this engagement on the terms and conditions hereinbefore stated, you may signify your acceptance on the enclosed copy of this letter which 5 should be returned to me". It is clear from the contents of such licence that it was not an ordinary licence for entering the port on casual occasions or for a specific purpose but a licencetocarryout a specialised profession within the port area for an unlimited period subject 10 to the conditions which were endorsed on the said licence. One of such conditions was that the appointment was subject to a probationary period of two years and then becoming permanent and extending till the 65th year of age of the licensed porter whenhehad to retire. It wasalso oneofthe conditions 15 of the licence that before the licence wasgranted, the applicant had to contribute to the Porters Association his proportion in thevalueof thegear used bythem for theirwork inthe harbour assessed as at the time of hisengagement. There isno reservation that the said licence or document of appointment was to 20 be cancelled for any cause other than what is described in the document itself, that is, under para. No. 1, which states that "the appointment is conditional to your being always obedient and willingto carry out theduties allotted to you byyour superiors". Ofcoursethe licencewasgranted subject tocompliance 25 by the porter to the various conditions under paras, (a)—(k) which were defining the duties and responsibilities of the applicant and breach of which might give a right to the Director of the Department of Ports, as he then was, to terminate the employment of the applicant as a licensed porter. 30 Counsel for the respondent did not dispute that the Regulations under Cap. 184 and any subsequent amendment, were and still are in force together with the Regulations made under the provisions of Law 38/73 and, in fact, he submitted that the powers of the respondent to issue licences to porters to work 35 in the harbour are exercised by virtue of the provisions of Cap. 184aswellasundertheprovisionsof Law38/73andtheRegulations made thereunder. Having dealt with the facts of the case, I am coming now to 384 3 C.L.R. Avraam v. Ports Authority Sawides J* consider the legal issues which pose for consideration in the present case. The first question which I have to consider is whether the action of the respondent Authority was of a disciplinary nature or not. To determine such issue, I find it neces5 sary to consider first the nature of the licence by virtue of which the applicant was exercising his occupation. Having examined the contents of such licence and the nature of the conditions embodied therein, I have come to the conclusion that the licence was not an ordinary licence which could be cancelled at will 10 without any cause whatsoever but it was a professional licence issued by the respondent enabling the applicant to carry out his occupation within the area of the port, an occupation which was of a specialised nature having to do with the proper loading and unloading of ships and the careful handling of goods of 15 whatever nature unloaded from (he ships. Furthermore, under the conditions of the licence he had to contribute his share in the cost of the gear and equipment belonging to the Licensed Porters Association thus becoming a co-owner of such equipment. 20 The decision of the respondent to suspend such licence is of vital importance to this particular worker. If in an ordinary contract of service a man is dismissed from his employment, it is open to him to obtain employment in the same or another line of work with another employer, but iho dismissal from 25 employment of a man who is doing skilled work, is wholly to remove this man as a dock worker. Counsel for the respondent Authority referred the Court to the cases of Georghios HjiLouca v. The Republic of Cyprus
(1969)3 C.L.R. 570, Co-operative Stores of Famagusta v. The 30 Republic of Cyprus,
(1974)3 C.L.R. 295 and Constantinou v. The Republic
(1972)3 C.L.R. 116, on the question of nonrequirement of compliance with the rule "audi alteram partem". Counsel contended that on the strength of such authorities when there is no legislativeprovisionfor hearingthe other party, 35 then there is no duty on the Authority to do so and that in the present case there is no legislative authority giving a right to the applicant to be heard, before the Authority had to decide as to whether his licence is to be revoked. The case of HjiLouca v. The Republic (supra)is a case where 40 the applicant complained against a decision of the Council 385 Sawides J. Avraam v. Ports Authority
(1981)for Reinstatement ofDismissedPublicServantsfor hisreinstatement. Theextracton whichcounselfor therespondentAuthoritysought to rely, isthe extract from page 574ofthejudgment (per Triantafyllides, J., ashethenwas)which reads as follows: "In myopinion in a caseof this nature, and inthe absence 5 of any legislative provision for the purpose, there was no needto invitethe applicant to bepresent attheproceedings before the Respondent (see Conclusions from the Jurisprudence of the Greek Council of State, 1929-1959p. 112; also, the decision of the Greek Council of State 1262
(46)10 reported in Zacharopoulos Digest of the Decisions of the Greek Council of State, 1935-1952, p. 313, para. 136); likewise, itwasnot necessaryto afford him an opportunity to question the two witnesses who were heard by the Respondent". I wish, however, to point out what is said further in the said judgment and which is material for the present case (at page 575): "This wasnot an instanceofa disciplinary orother proceedings of such a nature as would render it necessary to give 20 the applicant the opportunity to contradict averments against him and to question witness (useful reference in thisconnection maybemade,also,toOdenton Contentieux Administratif, Vol. IV (1965-1966) p. 1, 165 et seq.)". The case of Constantinou v. The Republic (supra) was also 25 a case based on similar facts, that is, a claim for ieinstatement by a public officer who was retired compulsorily during the colonial rule in Cyprus. Counsel for the respondent Authority relied on what was said by A. Loizou, J., at p. 126of the said judgment which reads as follows: 30 "The principles governing the duties of administrative organs, regarding the holding of a proper inquiry before aniving at a decision,havebeen considered and expounded in a number of decisions. I find the cases of HjiLoukas v. The Republic
(1969)3 C.L.R. 570, HadjiPetris v. The 35 Republic
(1968)3C.L.R. 702,aswellasthesecond Constantinou case,supra, asbeing veryrelevantto thisissue. The position may be summed up in this way. By section 3
(2)of Law 48/61 'the council regulates its procedure '. 386 15 3 C.L.R. 5 Avraam v. Ports Authority Sawides J. In the absence, therefore, of legislative provision, there is no need to allow an applicant to be present, nor is it necessary to afford him an opportunity to question witnesses who are to be heard by an administrative organ at the applicant's request; nor is it obligatory to allow the appearanceofan advocatetherebeingno specific provision to that effect". The following, however,is stated further down in this judgment: 10 15 "The presen case was not one of a disciplinary nature, or where the administrative decision to be reached would assume the character of a sanction and have a sufficiently adverse effect on the position of the individual; or, that it was destined to punish or reprimand the attitude or conduct of the applicant". Both these cases are cited with approval in the case of The Co-operative StoresFamagusta Ltd.,etc. v. The Republic(supra) whichwasa casewhereanapplication to removea parkingsign wasrefused, and Malachtos, J. at p. 302,had this to say:- 20 25 "The last point that falls for consideration isthe argument of learned counsel for applicants that the respondents acted in breach of the rules of natural justice as they did not give the opportunity to the applicants to be heard. In considering a caseofthisnature the LicensingAuthority is regulating its own procedure and is not bound to hear the applicants since there is no obligation imposed on it by any law or regulation. So, no infringement of the rules of natural justice has been committed by the respondent Authority". 30 The Judge in this case as in the other similar cases adopts the view that the case for consideration before him was not a case of a disciplinary or other proceeding of such a nature as would render it necessary to givethe applicant the opportunity to be heard. 35 It is clear from all the above decisions that the cases were decided on the assumption that the element of a disciplinary proceeding wasnot in existence in any one of them and it was 387 Sawides J. Avraam v. Ports Authority
(1981)said in all thesecasesthat wherethecaseisoneofa disciplinary nature as would render it necessary to give the apphcant the opportunity to contradict averments against him, the Authority isboundto givea chancetotheapphcantto beheard and argue his case before the Authority. 5 Therefore, in the present case 1have to consider whether the element of disciplinary proceeding does exist. Going through the various documents which were attached to.the application and the opposition, there isno room for any doubt thatthereasontheapplicant'shcencewassuspendedwasbecause 10 there were suspicions against him for misappropriation of funds of the Licensed Porters Association which were entrusted to him. There was evidenceto that effect in the hands of the respondent Authority coming from the auditors of the accounts of the Limassol Licensed Porters Association which were kept 15 by the applicant. The reasons for the termination of his employment appear inexhibits7, 8and 9. Exhibit 7,whichisanoteofthe General Director of Ports to the respondent Authority where, after reporting about the deficiency which wasfound in the accounts 20 and irrespective of the fact that such deficiency waspaid by the apphcant, he recommends that in view of the seriousness of the offence which has been committed by the applicant, it is not possible for him to continueasa hcensedporter, and,therefore, his licence should be suspended. And the Council at 25 its meeting of 22.3.1979 decided, for the reasons mentioned in the report of the General Director, to suspend the hcence oftheapphcanttobeemployed asahcensedporter intheLimassol port as from 1.5.1979 and authorised the General Director to inform the applicant accordingly. As a result, the Genera! 30 Director sent the letter (exhibit9) whereby the apphcant is informed that his licence is suspended on the gound that a deficiency was found in the money which he washandling for the account of the Limassol Licensed Porters Association. As I said before, there is no room for any doubt that the 35 reason for which the Jicence was suspended was the result of disciplinary poweis exercised by the Licensing Authority. Such power was vested in the respondent Authority under the RegulationsannexedtoCap. 184and,inparticular, under Regulation 12 referred to earlier in this judgment. 40 388 3 C.L.R. \ Avraam v. Ports Authority Sawides J· In the result, I have come to the conclusion that the present case is clearly a case of a disciplinary nature or of proceedings of such a natme as to be similar to disciplinary proceedings, and a chance should have been given to the applicant to con5 tradict any averments against him. Furthermore;, in view of the provisions of regulation 12 and the powers vested in the respondent Authority as to the punishment which may be imposed on a port worker who contravenes the provisions of the Regulations or misconducts 10 himself in thecourseor in connection with hiswork which vary from a warning, to suspension for a limited period or cancellation of his registration, the applicant was entitled to be heard at least for putting forward factors in mitigation which might have led the respondent Authority to reach a different decision 15 concerning the punishment which it was going to impose on the apphcant as against the maximum one of cancelling his registration which they decided to impose without hearing the apphcant. In consequence, in the circumstances of the present case, 20 the respondent Authority by failing to afford the applicant an opportunity to be heard to contradict any accusations against him or toput forward factors in mitigation, acted in contravention of the rulesofnaturaljustice. Having found so, I consider itunnecessarytodealwithanyother matter raisedinthepresent 25 recourse. In the light of the above, thesubjudice decision ishereby set aside. Having regard, however, to the circumstances of the case, I make no order for costs. Subjudice decision annulled. No 30 order as to costs. 389