ARTICLE 146
THE CONSTITUTION PANAYIOTIS KAZAMIAS, Applicant, v. THE REPUBLIC
CYPRUS, THROUGH THE COUNCIL
MINISTERS, Respondent. (Case No. 234/81). Administrative Law—Administrative acts or decisions—Reasoning —Need for due reasoning—Decision
Council
Ministers terminating Public
ficer's services in the public interest, in exercise
powers under sections 6(f) and 7
the Pensions Law, Cap. 311—Invoking allegations
unbecoming conduct on the part
the
ficer without mentioning particulars
such allegations, or the evidence on which the Council
Ministers relied, or any surrounding circumstances and failing to specify the matters
public interest—Reasons mentioned in the decision not such as to enable in the first instance, the person concerned, and the Court on review, to ascertain whether the decision is wellfounded infact and in Law—Sub judice decision not properly or sufficiently reasoned—Annulled. Administrative Law—Administrative acts or decisions—Reasoning —Administrative decision taken in the public interest—A general averment
public interestdoesnot amount toasufficientreasoning —But the invocation
public interest must be justified with a specification
the serious reasons
public interest which are involved. Public interest—Administrative decision taken in thepublic interest— Invocation
public interest must bejustified with a specification
the serious reasons
public interest which are involved. Public
ficers—Disciplinary control—A matter within exclusive 239 Kazamias v. Republic
Public Service Commission—Article 125.1
the Constitution—Termination
Public
ficer's services, by Council
Ministers, in the public interest in exercise
powers under sections 6(f) and 7
the Pensions Law, Cap. 311—After fiiuiing the
ficer guilty
unbecoming conduct—As such finding 5 amounts to a disciplinary
fence under the Public Service Law, 1967 (Law 33/67) // renders the
ficer subject to the disciplinary powers
the Public Service Commissionfor a disciplinary
fence under section 73
theLaw—Council
Ministers by cssuming competence in a matter which is within the exclusive competence 10
the Public Service Commission has acted in excess or abuse
powers—Sub judice decision annulled—There cannot at one and the same time be two authorities with concurrent power to exercise disciplinary control over Public
ficers—Even assuming that Council
Ministers had competence to deal with alleged 15 misconduct
ficer it was bound to inform the applicant
the accusations against hitn and give him the opportunity to make his defence in accordance with the "audi alteram partem,, rule
r.atural justice—And as the
ficer had been in the service prior to independence, in accordance, also, with his terms and 20 conditions
service before Indepeidence, which have been safeguarded by Article 192.1
the Constitution and are afforded to the
ficer by regulation 59
the Colonial Regulations. Natural Justice—Rules
—Audi alteram partem—Termination
Public
ficer's services, by Council
Ministers, in the 25 public interest, in exercise
powers under sections 6(f) and 7
the Pensions Law, Cap. 311—After finding him guilty
unbecoming conduct—Predominant purpose
termination
services the imposition on
ficer
a disciplinary punishment— Assuming Council
Ministers had power to deal with alleged 30 misconduct
ficer it ought to inform him
the accusations against him and give him the opportunity to make his defence —Failure to do so amounts to flagrant vioL tion
the above rule
natural justice. Public
ficers—Terms and conditions
service—
ficers in Public 35
fice prior to Independence—Disciplinary control over, governed by Colonial Regulations—Article 192.1
the Constitution. Public
ficers—Administrative measure—Disciplinary measure— When an administrative decision assumes the character
a 240 3 C.L.R. Kazamias v. Republic sanction and has adverse effect on the positionof ωιindividual personaffectedshouldbe given the opportunity
questioning the reason for the adverse decision. The applicant was appointed in the Public Service on the24th September, 1941. After a successful career he was promoted to the post
Director-General
the Ministry
Communica tions and works and continued holding this post till the 11th June, 1981, when the Council
Ministers decided to termi natehis services in the public interest. And hencethis recourse. The sub judice decision, which was taken in exercise
the Council's powers under sections 6(f)* and 7*
the Pensions Law Cap.311 (as amended)and was communicatedto applicant I by letter**
the Minister
Communications and works date 11th June, 1981, reads as follows: "The Council
Ministers in exercising the powers vested in it by sections 6(0 and 7
the Pensions Law, Cap. 31 i (as later amended), and any other power in this respect vested initand,after athoroughexamination
thematerial produced in relation 'to the unbecoming conduct' in public
Mr. Panos Adamides, Director-General Ministry
Education and Mr. Panayiotis Kazamias, Director-General
the Ministry
Communications and Works, which
fends basically the very subsistence
the State and the proper and unfettered functioning
the State and its Public Service, having taken into consideration the condi tions
such Service and the usefulness
the aforesaid public
ficers thereto and generally all the circumstances, * Sections 6(
ficer except on his retirement from the public service in one
the following cases: ( 0 in the case
termination
employment in the public interest as provided in this Law. 7. Where an
ficer's serviceis terminatedby theCouncilof Ministers on theground that,having regard to theconditions
the public service, the usefulness
the
ficer thereto and all the other circumstances
the case, such termination is desirable in the public interest, and a pension, gratuity or other allowance cannot otherwise be granted to him under the provisions
this Law, the Council
Ministers may, if he thinks fit grant such pension, gratuity or other allowance as he thinksjust and proper,notexceeding inamountthatfor which the
ficer would beeligibleif heretired from thepublic servicein the circumstances described in paragraph (e)
section 6
this Law". ** The letter is quoted at pp. 249-50post. 241 Kazamias v. Republic
sufficient reasoning. (b) That the sub judice decision was taken in manifest illegality and/or in excess or/and abuse
power in that it involved a manifest violation
the Rules
Natural Justice in that no opportunity to be heard was given to the.applicant. (c) That the sub judice decision was illegal in that it was taken by an incompetent organ and constituted a violation
Articles 122and 125.1*
the Constitution and
the Public Service Law, 1967 (Law 33/67) and also
the Pensions Law, Cap. 311. On the other hand Counsel for the respondent Counsel
Ministers in his opposition maintained that the subjudice decision was lawfully taken in the light
the following relevant facts:
Ministers at its meeting
the 11th 25 June, 1981 decided to terminate the services
the applicant as Director-General
the Ministry
Communications and Works as from 11.6.1981 in the public interest.
Ministers at its meeting
the Ilth June, 1981, took into consideration undisputable facts ™ and information emanating from reliable sources, according to which the applicant publicly and in a manner not Article 125.1
the Constitution provides as follows: 125.1. Save where other express provision ismade in this Constitution with respect to any matter set out in this paragraph and subject to the provisions
any law,it shall be the duty
the Public Service Commission to make the allocation
public
fices between the two Communities and to appoint, confirm cmplace on the permanent or pensionable establishment, promote, transfer, retire and exercise disciplinary control over, including dismissal or removal from
fice
, public
ficers". 242 15 3 C.L.R. Kazamias v. Republic permitted, presented the Republic as being without head and as lacking
good and able government. 5 10 15 20 25 30 35
the public and
the Public Service in the ability and effectiveness
the supreme organs
the State and thus he undermined the existence
the State.
the applicant in the Public Service, ceased to exist.
the Council
Ministers for the termi nation
the services
the applicant which was commu nicated to him by the letter
the appropriate Minister on the 11.6.1981 was not taken as a disciplinary measure for the punishment
the applicant but as an administra tive measure which was necessary in the public interest. Counsel for applicant, both prior to the hearing by letter. as well as in the course
the hearing, asked to be informed
the source and nature
the material before the Council
Ministers which led it to the conclusion that the conduct
the applicant was unbecoming conduct in public undermining the State and its Public Service, but there was no response to such request. Held, (l)(a) that it is a well established principle
Administrative Law that Administrative decisions have to be duly reasoned; that due reasoning is essential to enable the Courts to carry out properly their function
judicial control
admi nistrative actions; that the sub judice decision is not properly or sufficiently reasoned; that such decision is overshadowed by a cloud
generalities invoking allegations
unbecoming public conduct on the part
the applicant
such nature as to make it necessary in the public interest to impose upon hini the ultimate punishment
terminating his permanent appoint ment with the Government service, without mentioning particulars
such allegations, or the evidence on which the Council
Ministers relied, or any surrounding circumstances and also by failing to specify (έίειδικεύση) the matters
public interest involved; that the reasons mentioned in the decision are not such as the enable in the first instance, the person 243 Kazamias v. Republic
the Council
Ministers and the decision itself as recorded in the minutes
the Council
Ministers, are so obscure and sub- 5 stantially inadequateandwould leaveinthemindof aninformed reader such real and substantial doubt as to the reasons for suchdecisionandastothematterswhichtheCouncilofMinisters did ordid nottakeintoaccountintaking thesubjudicedecision, that they do not comply with the well established principles 10
proper reasoning, compliance to which is necessary under the general and well established principles
administrative law; and that, therefore, the sub judice decision is defective and in the result it must be annulled. (l)(b)That though inthe subjudice decision therewas further 15 reference to thedecision having been taken in the public interest a genera] averment
public interest does not amount to a sufficient reasoning but the invocation
public interest must be justified with a specification (έ&ιδίκευσις)
the serious reasons
public interestwhich are involved (see,in this respect, 20 "Modern Trends
the Principle
Legality in Administrative Law" 1973 Ed., by Tahos, p. 146).
theConstitution theorgan expres sly entrusted with the duty
"exercising disciplinary control over, including dismissal or removal from
fice
, public 25
ficers" is the Public,Service Commission established undei Article 124
theConstitution; that an organic law was enacted (Law 33/67) providing amongst other things, for the procedure in disciplinary matters (see sections 80,81 and 82
Law 33/67); that the fundamental duties
public
ficers are set out in 30 section 58
Law 33/67 and breach
any such duties con stitutes an
fence which is included in the disciplinary
fences set out in section 73
which disciplinary proceedings may be taken against him and in case he is found guilty to render him liable to the sentences set out in section 35 79
theCouncilof Ministersof unbecoming conduct in public undermining the State and its public service on thepart
the applicant,is afinding amountingtothebreach
the fundamental duties
a public
ficer under section 58
Law 33/67 and rendering him subject to the 40 244 3 C.L.R. Kazamias v. Republic disciplinary powers
the Public Service Commission for a disciplinary
fence under section 73
public
ficers including dismissal is a matter within the exclusive competence
the Public Service Commission. 5 10 15 20 25 30 35 40
the decision, assumed competence under the provisions
section 7
Cap. 311 on a disciplinary matter which is within the exclusive competence
the Public Service Commission; that thore cannot at one and the same time be two authorities with concurrent power to exercise disciplinary control over public
ficers, the one an independent organ deriving its powers from the Constitution and the other the Government itself relying on legislative provision; that the object
the introduction in the Constitution
.1 was to entrust the safeguarding
the efficiency and proper functioning
the public service
the Republic, expressly including the exercise
disciplinary control over public
ficers, to the Public ServiceCommission, an independent and impartial organ outside the governmental machinery, and at the same time, safeguarding the protection
the legitimate interests
public
ficers; that if such power was also retained by the Government, the whole object
Articlt 125.1 would be defeated and the safeguarding afforded to public
ficers by such Article would have disappeared; that since disciplinary control over public
ficers is within the exclusive competence
the Public Strvice Commission, the Council
Ministers by assuming such competence in the present case, has acted in excess and/or abuse
powers and in the result, the sub judice decision becomes null and void on this ground as well. On the assumption that the Council
Ministers had competence to deal with the alleged misconduct
the applicant: Held(\\ that mere perusal
the contentsof thesubjudicedecision as recorded in the Minutes
the Council and
the letter communicating the decision to the applicant and
all surrounding circumstances in mind, leaves no room for doubt that the predominant purpose
the sub judice decision taken by the Council
Ministers was to impose upon the applicant a disciplinary punishment, the most serious one, for alleged public misconduct, without affording him the opportunity
being heard; that even if any doubt might have existed, which 245 Kazamias v. Republic
doubt to operate in favour
the applicant (see Pantclidou v. Republic, 4R.S.C.C. 100); and that, therefore, the respondent was bound to afford the applicant the right to beinformed
the accusations against 5 him and the chance to repudiate same.
dismissal
a public
ficer in the public interest under 10 regulation 59
such Regulations he had to be informed
the report
the heads
thedepartment in which hehad served and be given the opportunity
submitting a reply to the complaints by reason
which his retirement was contemplated; that such provision was part
the terms and conditions
his 15 service which after Independence have been safeguarded under Article 192.1
the Constitution and could not be altered to hisdisadvantage; and that, therefore, the Council
Ministers by failing to inform the applicant
the accusations against him and give him the opportunity to make his defence, had 20 acted in flagrant violation
the basic rule
natural justice which is summarised in the maxim "audi alteram partem"; that, also, by depriving him
his vested right under the terms and conditions
service before the Independence day, afforded to him by the Colonial Regulations and in particular regulation 25 59 which terms and conditions have bsen safeguarded under Article 192.1
the Constitution, the Council
Ministers has violated Article 192.1; accordingly the sub judice decision has to be annulled on this ground as well. Held,further, that even in cases where a decision is not
30 a disciplinary nature but is an administrative measure, as suggested by counsel for the respondent, it iswell settled that when an administrative decision assumes the character
a sanction and hassufficiently adverseeffect ontheposition
anindividual, as in the circumstances
the present case, the courts require 35 that the person affected should be given the opportunity
questioning the reason for the adverse decision. Sub judice decision annulled. PercurLm: That the power to terminate the service
a public
ficer prior to independence did not emanate from 40 246 Kazamias v. Republic 3C.L.R. sections
f) and 7
ιhe Pensions Law, Cap. 311 but from the Colonial Regulations and that sections 6(f) and 7 were only ancillary pro\isions enabling the Council
Ministers to grant pension or gratuity in such cases. 5 Cases referred to: McClelland v. N. Ireland Health Board [1957] 2 AM E.R. 129 at p. 134, Markides v. Republic, 2 R.S.C.C. 8 at p. 12; 10 HadjiSavva v. Republic
Architects uul Civil Engineers
Architects and Civil Engi neer
Homing [1966] 3 AI! E.R. 696; 30 PEO v. Hoardof Cinematograph Film Censors
the Greek Council
State Nos. 942/1971,1005/33, 354/38. 1711/65, 070/58, 1415/58; Christodoulou v. Republic
the Federation
Malaya [1962] A.C. 322. 5 Recourse. Recourse against the decision
the respondent to terminate applicant's service as a Director-General
the Ministry
Communications and Works in the public interest. T. Papadopoulos, for the applicant. S. Georghiades, Senior Counsel
the Republic, for the respondent. Cur. adv. vult. SAWIDES J. read the following judgment. The present recourse is directed against the decision
the Council
Ministers dated 11.6.1981 wheieby the service
the applicant 20 as Director-General
the Ministry
Communications and Works, was terminated "in the public interest". The applicant who was appointed in the Public Service on 24.9.1941, after having passed the Civil Service qualifying examinations and after a successful career since the day
h : s 25 appointment, was promoted to the post
Director-General
the Ministry
Communications ;nd Workj which is one
the highest posts in the hierarchy
Civil Service. He had been holding this post since May, 1959 till August, 1960 (the transitional period) and continued holding same till 11.6.1981, 30 when his service was terminated by the sub judice decision
the Council
Ministers. The fact that the applicant during his long term
service had shown excellent performance in the discharge
his duties, is manifested by his promotion in various important posts in the hierarchy
Civil Service, and, 35 also, by the facts that— (a) he was granted a scholarship for University studies 248 10 15 3 C.L.R. Kazamias v. Republic Savvides J. during theyears 1949-1952 at the University
Wales where he graduated with a B.A. Degree with Hons. 5 10 15 20 25 30 35 (
the Ports Authority by decision
the Council
Ministers. Healso served in such capacity as from January, 1981 by decision
the Council
Ministers till the date
the termi nation
his service. (d) He had also been appointed bythe Council
Ministers as a member
the Planning Committee
the Town Planning Council,
the Joint Labour Committee and other Committees. During his term
fice he represented Cyprus in various International Conferences (International Organisation
Civil Aviation, International Port Union,TheCommittee
Experts
the United Nations for Commercial Development, Tnternational Labour
fice, etc.) by decisions
the Council
Ministers. A full list
the international Committees in which he participated as representative
Cyprus andthe part played by himinsuch Committees issetoutinAnnex 2attached to his application for an interim order in this recourse. I need not expand upon them, as the facts contained therein which manifest a distinguished career, have not been disputed by the respondent whose counsel stated in his address that the sub judice decision was not taken either onlack
efficiency or integrity but in the public interest. On 11.6.1981 the Council
Ministers decided to terminate the service
the applicant "inthepublic interest" and commu nicated such decision to him by letter dated li.6.1981 which was handed over to himby his Minister, the Minister
Com munications and Works. The contents
such letter (copy
which is annexed to the affidavit for an interim order as Annex 1) reads as follows:" "Εχω έντολήν παρά τοϋ 'Υπουργικού Συμβουλίου όπως πληροφορήσω ύμας ότι το Υπουργικού Συμβουλίου κατά 249 Sawides J . Kazamias v. Republic
which reads as follows:"1 have been instructed by theCouncil
Ministers toinform 20 you that the Council
Ministers at its today's meeting, in exercising the powers vested in it by sections 6(f) and 7
the Pensions Law, Cap. 311 (as later amended) and any other power in this respect vested in it and after a thorough examination
the material produced before 25 it in relation to your unbecoming conduct in public which
fends basically the very subsistence
the State and the proper and unfettered functioning
the State and its Public Service, having taken into consideration the conditi ons
such service and your usefulness thereto and gene- 30 rally all the circumstances, came to the conclusion that your stay in the Public Service could not only serve no useful purpose to it, but also, it would be very detrimental thereto, decided that your service be terminated as from to-day in the public interest, with full retirement benefits, to which 35 you are entitled". As a result
the above decision, applicant filed the present recourse, whereby he seeks—"a declaration
the Court that the act and/or decision
the respondent which was commu- 250 3 CUR. 5 Kazamias v. Republic SawidesJ . nicated tohimby letter dated 11.6.1981 signed by theMinister
Communications and Works, whereby the service
the applicant as Director-General
the Ministry
Commu nications and Works, was terminated, is null andvoid and/or illegal and
no legal effect". The grounds
law on which this recourse is based, as set out in the application, are the following :- 10 "
the respondent was taken in manifest illegality and/or in excess or/and abuse
power in that:(a) itwasof a punitive and/or disciplinary nature and the disciplinary provisions
the Public Service Law 33/67 have not been complied with. 15 (b) Itinvolves a manifest violation
the Rules
Natural Justice in that no opportunity to be heard was given to the applicant (
Articles 122 and 125.1
the Constitution and
the Public Service Commission Law (Law 33/67) and also
the Pensions Law, Cap.311. 25
Articles 192.1and7(b)
the Constitution and/or s 86
Law 33/67 and/or
the Colonial Regulations which, under the provisions
the said Article
the Constitution and the Law apply inthe case
the applicant. 30 35
sections 6(f)and 7
Cap. 311 which arenotin force or ceased to bein force or are deemed to have been amended since the Independence and thereafter and/οι were superseded in thelight
Articles 12, 18, 19,33, 122,125, 179,182 and 192of the Constitution
the Republic
Cyprus 251 Savvides J. Kazamias v. Republic
Articles 46 and 59
the Constitution, in that it included members who could not and/or had no right to participate in it. 5
Administrative Law and
the Rules
good and proper administration and illegally deprives the applicant
his permanent post in the Public Service.
facts 10 and/or they relied on inexisting or inaccurate or misconcepted facts and/or they took into consideration facts which they could not have taken into consideration.
sufficient and legal reasoning". 15 By their opposition the respondents maintain that the sub judice decision was lawfully taken in the light
all relevant facts which, as set out in the opposition, are the following :"
Ministers at its meeting
the 11th June, 20 1981 decided to terminate the services
the applicant as Director-General
the Ministry
Communications and Works as from 11.6.1981 in the public interest.
Ministers at its meeting
the 11th June, 1981, took into consideration undisputable facts and 25 information emanating from reliable sources, according to which the applicant publicly and in a manner not permitted, presented the Republic as being without head, and as lacking
good and able government.
the public and
the Public Service in the ability and effectiveness
the supreme organs
the State and thus he undermined the existence
the State.
the applicant in the Public Service, ceased to exist. 252 3 C.L.R. 5 Kazamias v. Republic Savvides J.
the Council
Ministers for thetermina tion
the services
the applicant which was communi cated to him by the letter
the appropriate Minister on the 11.6.1981 was not taken as a disciplinary measure for the punishment
the applicant but as an admini strative measure which was necessary in the public interest". In arguing the case before the Court,counsel for the applicant contended that the Government has violated each and every 10 rule or principle
Natural Justice acting in glaring abuse
power and in an unlawful way, assuming for itself powers and functions which are no longer entrusted to the Council
Ministers or which have to be read subject to the relevant constitution! provisions. Hestressed thefact that it was obvious i5 from the contents
the letter communicating the decision
the respondent to the applicant, that it relied on sections 6(f) and 7
the Pensions Law, Cap. 311 and by such letter the applicant is charged with "unbecoming conduct" (ανεπίτρεπτου συμπεριφοράν). 20 25 Such accusation, according to counsel for the applicant, makes it quite apparent that the termination
the services
the applicant were in respect
conduct which may either be touching upon the fringes
a criminal
fence, if they were spoken under circumstances upon which a charge under section 46A
the Criminal Code could be framed, or an
fence under section 73(l)(b)
the Public Service Law (Law 33/67), or a disciplinary
fence under sub-clause
the first part
the First Schedule to the Law (Law 33/67). The allegations contained in the letter as to the conduct
the applicant are covered, counsel argued, under a cloud
generality and confusion, and the respondent refused to give particulars
the alleged circumstances,both by failing to answer a written request
counsel for applicant sent to the respondent and also by failing to comply with repeated requests made 35 during the trial
this case as to what were the "αδιάσειστα γε γονότα και πληροφορίες....από αξιόπιστεςπηγές",which are the alleged facts which led the respondent to the conclusion that the conductof the applicantwas injurious to the public interest.Such refusal, counsel contended, deprives the applicant
knowing 40 what were such facts and informations, in what way they were 30 253 Savvides J. Kazamias v. Republic
his application for interim order which is before the Court. Counsel also argued that no proper reasoning is contained either in the said letter or in the decision itself, as appearing in the extract from the minutes
the Council
Ministers 10 which was produced before the Court. He further argued that though the Council
Ministers had no jurisdiction in the case, since disciplinary matters are within theexclusivejurisdiction
the Public Service Commission under Article 125.1
the Constitution and the provisions
Law 15 33/67, assuming that there was such jurisdiction in the Council
Ministers, a decision terminating the service
the applicant for a disciplinary or quasi disciplinary
fence, could not be taken by any procedure which ignored the paramount Rule
Natural Justice which is the right to know
the accusations 20 made against him and to beheard in his own defence. Furthermore, once the alleged words
the applicant were directed against the Government
the Republic, which, in the circumstances consists
the President and his Ministers, the decision
the Council
Ministers was taken in violation
the next 25 Rule
Natural Justice,inthat itwastaken bypersons personally affected and under such Rule, no one shall be a judge in his own cause. In consequence, the decision
the Council
Ministers is null and void on this ground. In dealing with legal ground
Ministers wasimproperly constituted, in that it included members who could not and/or had no right to participate in the taking
the decision, such members being the Minister to the President and the Deputy Minister
Interior, the first 35 one being the head
a Ministry, the creation
which is contrary to the provisions
the Constitution, and the other holding a post which was also created contrary to the Constitution. Counsel further contended that the Council
Ministers 40 254 I \ \ ι 3 C.L.R. Kazamias v. Republic Sav\ides J- in any event had no jurisdiction to dismiss the applicant under the provisions
sections 6(f) and 7of the Pensions Law, because such provisions are merely provisions enabling the Council
Ministers to give pension in cases
civil servants whose 5 services were terminated on any
the grounds set out therein, one
which was dismissal in the public interest, in which cases, due to the absence
any other provision, pension was not payable to the civil servant so dismissed. Counsel submitted that prior to the Independence day, the power to dismiss an 10
ficer in the public interest, was derived from the Colonial Regulations and not from Cap. 311. Such Regulations made ample provision as to the punishment
a civil servant both in cases
misconduct and cases where public interest was involved. • Also the procedureto be followed was set out therein 15 under which, in all cases, a civil servant had the right to be heard in his own cause. Such right, counsel submitted, is a vested right safeguarded to him under Article 192.1
the Constitution. 20 25 30 35 40 Apart from the rights
the applicant under the Colonial Regulations which had been preserved under Article 192
the Constitution, counsel contended that all other disciplinary power has been vested after Independence in the Public Service Commission, by virtue
.1
the Constitution and there cannot be concurrent or similar power in any other body, because the situation will arise
two authorities with parallel or concurrent or overlapping jurisdiction, something which cannot be accepted as a possibility. In dealing with the question as to whether the act
the Ministers was an administrative measure or a disciplinary sanction, counsel submitted that even if the Court reached the conclusion that such action amounted to an administrative measure, again it was subject to judicial scrutiny and it is upon the Court to decide as to the essence and the true nature
their action. Counsel expounded on the meaning
public interest and when such matter can be invoked. He submitted that invoca tion
public interest must be justified with a specification
the serious reasons
public interest and how the conduct
the applicant affected that public interest. The invocation should refer to real facts and circumstances, supported by 255 Savvides J. Kazamias v. Republic
fended by the conduct
the applicant, counsel concluded, have appointed themselves, asinvestigators,prosecutors, witnesses, judges and executors
their own judgment as to what amounted to public interest. Counsel for respondent in opening his address, produced a copy
the decision
the Council
Ministers
the 11th June, 1981,which was put in as exhibit No. 1and said that it wasthe best hecould do at the moment, but hedid not exclude thepossibilitythatatsomelaterstageinthecourseofthehearing 10 it might be possible to put before the Court more details in compliance with the wishes expressed by counsel for the other side, provided that the Council
Ministers was prepared to give him all data required by the other side. Though such statement wasmadeon the 10thNovember, 1981,nosuchparti- 15 culars were given on the lines requested by counsel for the applicants till the 11th December, 1981 when counsel for the respondent continued hisaddressandthehearingwasconcluded. Dealing with the question
reasoning, counsel contended that there was sufficient reasoning in the letter communicating 20 thedecisionoftherespondenttotheapplicant. Onthequestion
violation
the Rules
Natural Justice, counsel submitted that the rule concerning the right
hearing was not violated in the present case,becausethe decision
the Council
Ministers was an administrative measure in the public interest, and 25 not a sanction taken against the applicant for the commission
a disciplinary
fence by the applicant and, therefore, the Council
Ministers was not bound to accord the applicant the right to be heard. As to the violation
the rule that one cannot be a judge 30 in his own cause, counsel contended that in the present case the Council
Ministers was the only competent organ under section 7
the Pensions Law, to terminate the service
a public
ficer on the grounds
public interest and, therefore, the implication
the Law
Necessity may override the rule 35 that onecannot beajudgeinhisowncause,astherewasnobody else entrusted with such power. He contended that even if the alleged conduct
the applicant constituted a disciplinary
fence, irrespective
whether any disciplinary proceedings 256 5 3 CL.R. Kazamias v. Republic Savvides J. were taken or not, the Council
Ministers was entitled, in the circumstances
the present case, to terminate the service
the applicant on the ground
public interest as, by his conduct, the applicant could no longer remain in the Public Service, 5 because he has presented the Government as being without head, without a leader and that the country as lacking
good and efficient government, showing an intention that he was not prepared to co-operate with this Government and with its Ministers in his capacity as Director
the Ministry in 10 question. Such termination
the service
the
ficer in question was not made for the purpose
punishing him but because his continued presence in the Public Service would be against the public interest. In support
his argument that the act
the Council
Ministers was an administrative mea15 sure, counsel tried to draw a distinction between a disciplinary act and an administrative measure and concluded, on this point, that in the case where an administrative measure is taken, the Rules
Natural Justice do not apply. Dealing with the Pensions Law, counsel for the applicant sub20 mitted that the Pensions Law, Cap. 311, is not an enabling law giving power to the Council
Ministers to grant pensions in cases
termination
service, but it is a law which does give power to terminate the service
a public
ficer and at the same time to decide if any and what gratuity or pension the 25 public
ficer in question will receive. Section 7 is a composite section, in that it both gives power to terminate the service and also discretionary powers to decide what, if any, pension or gratuity the public
ficer concerned will receive on termination
such service. Counsel further stated that though dis30 ciplinary proceedings cannot be taken by the Council
Ministers and though the Council
Ministers does not have parallel jurisdiction with the Public Service Commission to exercise disciplinary proceedings, yet, it has the power to terminate the employment
public
ficers in the public interest as such 35 power is vested in the Council
Ministers by Article 54
the Constitution, which is indicative but not exhaustive
the executive powers
the Council
Ministers under the Constitution. Counsel contended that the powers which are vested in the Council
Ministers by virtue
section 6(f) and section 40 7
Cap. 311, and by virtue
the residuary overall executive powers with which it isvested by Article 54
the Constitution, 257 Savvides J. Kazamias v. Republic
the Constitution and the Public Service Law, 33/67. These powers
the Council
Ministers must be exercised in the public interest and not directly for reasons which are disciplinary and which have the object or are motivated by the desire to punish the public
ficer for misconduct, rather than to effect a change in his position in the Public Service which is dictated by more general reasons
public interest and in which any possible misconduct has no relevance, except a very secondary one. 5 10 On the question
the constitution
the Council
Ministers, counsel argued that the Council
Ministers was properly constituted and that there was no excess number
ministers than the number provided for by the Constitution which is ten Ministers,plusthe Minister
Education who wasappointed 15 over a Ministry which was created under the Law
Necessity after it was found that the Communal Chamber could not properly operate, a fact which is not disputed in the present case. The fact that one Minister, that is, the Minister
Interior was also Minister
Defence, is not contrary to the provi- 20 sions
the Constitution, because the Constitution does not provide for specific Ministries but only fixes the number
Ministers. As to the Deputy Minister
Interior, his position was that
an under-sccretary, who, though attending the meetings
the Council
Ministers, is not participating in 25 the taking
the decisions. Counsel contended that there is no provision in the Constitution about the quorum
the Council
Ministers, but only that the decision should be a majority decision, in the present case, the decision was taken by six Ministers who were present, 30 unanimously, and, therefore, there was majority decision. And counsel concluded his argument by submitting that the decision
the Council
Ministers was properly taken within the powers vested in it under the provisions
section 6(f) and section 7
the Pensions Law. 35 It is clear from the contents
the letter sent to the applicant embodying the decision
the Council
Ministers for his dismissal from the Public Service, and from the whole tenor
the arguments before me, that in taking such decision the 258 3 C.L.R. Kazamias v. Republic Savvides J. Council
Ministers relied on section 6(f) and section 7
the Pensions Law, Cap. 311, as amended by Laws 9/67 to 39/81. 5 The Pensions Law, Cap. 311 is according to its title, "A Law to provide for the payment
pensions, gratuities and other allowances" to public
ficers. It embodied the provisions
the previous Pensions Law, Cap.288
Vol. Ηof the Legislation
Cyprus, 1949, as amended by Laws 4/52 to 28/58. Regarding thecircumstances inwhich pension may be granted, section 6 reads as follows:- 10 "No pension, gratuity or other allowance shall be granted under this Law to any
ficer except on his retirement from the public service in one
the following cases " And it then proceeds to enumerate the various cases which include, inter alia, the attaining
the age
60, on transfer 15 to other public service, on the abolition
fice, on compulsory retirement for the purpose
facilitating improvement in the organisation
the Department, on medical grounds, etc. to which, for the purposes
the present case, I need not refer in detail, save in respect
case under paragraph (f)
s. 6 20 which is material to the present case and which reads as follows: "(f) in the case
termination
employment in the public interest as provided in this Law". 25 Though section 6 has undergone a number
amendments, the provision contained in paragraph (f) is still the same as in the original text
Cap. 311. As to matters relating to termination
employment in the public interest, the respective provisions are contained in section 7, which, used to read as follows: 30 35 "Where an
ficer's service is terminated on the ground that, having regard to the conditions
the public service, the usefulness
the
ficer thereto and all the other circum stances
the case, such termination is desirable in the public interest, and a pension, gratuity or other allowance cannot otherwise be granted to him under the provisions
this Law, the Governor in Council may, if he thinks fit, grant such pension, gratuity or other allowance as he thinks just and proper, not exceeding in amount that for 259 Sawides J. Kazamias v. Republic
ficer would be eligible if he retired from the public service in the circumstances described in paragraph (e)
section 6
this Law". Paragraph (e)
section 6to whichreference ismadeby section 7, is the case
retirement on medical grounds. The following amendments were brought about to section 7 by section 3
Law 38/79:- 5 (a) The words "by the Council
Ministers" were interposed after the words "is terminated" in the first line
section 7. 10 (b) The words "the Governor in CouncM" referred to therein were substituted by the words "The Council
Ministers". Till the year 1955 there was no provision in the old Pensions Law, Cap. 288, about the granting
pension in the case
15 termination
employment in the public interest. Paragraph (f)
section 6 used to read as follows:"in the case
removal on the ground
inefficiency as provided in this Law". And section 7
Cap. 288 used to read:- 20 "Where an
ficer is removed from his
fice on the ground
his inability to discharge efficiently the duties thereof, and a pension gratuity or other allowance cannot otherwise be granted to him under the provisions
this Law, the Governor-in-Council, may, if he considers it justifiable 25 having regard to all the circumstances
the case, grant such pension, gratuity or other allowance as he thinks just and proper, not exceeding in amount that for which the
ficer would be eligible if he retired from the public service in the circumstances described in paragraph (c) 30
the preceding section". In 1955 and as a result
the provisions
section 3
Law 1
1955, paragraph (f)
section 6 and also section 7,
Cap. 288 were amended by the introduction
the words "in the public interest" and the so amended sections appear as stated 35 in section 6(f) and section 7
Cap. 311, subject to the amendments brought about to section 7 by section 3
Law 260 3 C.L.R. Kazamias v. Republic Savvides J. 38
1979 which was enacted after the Independence
Cyprus. Law 1of 1955 was enacted at a time when the Colonial Regulations were part
the Colonial Legislation which extended to all Colonies set out therein, including Cyprus which was 5 then a Colony. Under Regulation 59
the Colonial Regulations, power was vested to the Governor, to terminate the service
an
ficer in the public interest, and the procedure to be followed in such case is set out therein. Regulation 59 provided as 10 follows:- 15 20 25 "Notwithstanding the above provisions, if the Governor considers that it is desirable in the public interest that any
ficer should be iequired to retire from the Service on grounds which cannot suitably be dealt with by the procedure laid down in Regulation 58, he shall call for a full report from theheads
the departments inwhich the
ficer has served; and if, after considering that report and giving the
ficer an opportunity
submitting a reply to the complaints by reason
which his retirement is contemplated, he is satisfied, having regard to the conditions
the Service, the usefulness
the
ficer thereto and all the other circumstances
the case that it is desirable in the public interest to do so, he may require the
ficer to retiie and the
ficer's service shall accordingly terminate on such date as the Governor shall specify. In every such case the question
pension will be dealt with under the laws or iegulations
the Colony". (The underlining is mine). Regulation 59did not contain any provision asto the question 30
any pension being payable to an
ficer whose services were terminated in the public interest, but expressly reserved that matter to be dealt with under the laws or regulations
each Colony. As I have already mentioned, till the enactment
Law 1
1955 whereby the old Pensions Law (old Cap. 288) 35 was amended, there was no provision in the Pensions Law for the granting
any pension to a civil servant whose services were terminated under the powers vested in the Governor by Regulation 59. Comparing the wording
section 7
the Pensions Law (Cap. 311) with that
Regulation 59, one 40 will notice that it is the same in the material respect underlined 261 Savvides J. Kazamias v. Republic
ficer to retire and the
ficer's service shall accordingly terminate on such date as the Governor shall specify", under the provisions
section 5 7 the power contemplated therein is to grant pension gratuity or other allowance "where an
ficers serviceisterminated _ and a pension, gratuity or other allowance cannot otherwise be granted to him under the provisions
this Law- _. ". Considering the objects
the Pensions Law as set out in its 10 title, the express power for termination
service
a civil servant in Regulation 59 and the phraseology
section 7 as tothe power to grant pension which, in this respect is the same as that
Regulation 59, and comparing the provisions
Regulation 59 to those
section 6(f) and section 7, one can 15 reach the conclusion that the power to terminate the service
a public
ficer emanated not from sections 6(
such Regulation. In dealing with the position as it existed prior to Independence, 1 find myself unable to accept tiie argument advanced by counsel for the respondent that the power for dismissal emanated from section 7
the Pensions Law and not from the Colonial Regulations. 25 Regarding the tenure
fice and the dismissal
a civil servant, one has to examine the situation as it was prior to Independence and how it developed after the Independence
Cyprus under the provisions
the Constitution
Cyprus which came into force on the 16th August 1960 as well as 30 under any laws enacted under such provisions since Independence. Prior to Independence the holding
fice by civilservantswasregulated bytheColonial Regulations. Under regulation 56 it was provided that:"An
ficer holds
fice subjecttothepleasureoftheCrown, 35 and the pleasure
the Crown that he should no longer hold it may be signified through the Secretary
State, in which case no special formalities are required". Thoughin thesaid Regulation thetenure
office isdescribed asbeingsubject tothepleasureoftheCrown,onceacivilservant 40 262 3 C.L.R. Kazamias v. Republic Savvides J. had qualified by examination and probation and was taken on establishment, he was secure in his employment till retiring age, save in cases
misconduct or inefficiency. This has been well-established by the House
Lords in McClelland v. N. 5 IrelandHealth Board [1957]2 All E.R. 129, in which Lord Goddard, summarised the position
civil servants as to tenure
fice as follows, at page 134:- 10 "Although a civil servant, as is well known, is employed at the pleasure
the Crown and can be dismissed at any moment, in fact once he has qualified by examination or piobation and is taken on the establishment he is secure in his employment till he reaches the ret-ring age, apart
course from misconduct or complete inefficiency". To the same effect is the decision
our Supreme Constitu15 tional Court in Markides v. The Republic
pensions and gratuities, had this to say at p. 12:- 20 25 "Notwithstanding the fact that under the constitutional and legal principles prevailing in Crown Colonies, such as the former Colony
Cyprus was, matters
pension and giatuity are, by legal fiction, regarded as discretionary acts
grace, they were nevertheless vested 'rights'
the individual concerned, inasmuch as they could be vindicated through the appropriate administrative procedure". (see also, GeorghiosHadjisavvav. Republic
ficer represented to the Governor as guilty
misconduct not
a serious nature was to be treated. The material part
such 30 regulation, reads as follows:- 35 "If it is represented to the Governor that an
ficer has been guilty
misconduct, and the Governor is
opinion that the misconduct alleged isnotserious enough to warrant proceedings under Regulations 58 and 60, with a view to dismissal, he may cause an investigation to be made into the matter in such manner as he shall think proper, and the
ficer shall be entitled to know the whole case made against him and shall have an adequate opportunity throughout
making his defence. 263 Kazamias v. Republic Savvides J.
opinion thatthe allegation is proved, he may inflict such punishment upon the
ficer by way
fine or reduction in rank, or otherwise, as may seem to him just. In the case
an
ficer holding an
fice appointment 5 to which is subject to the approval
the Secretary
State, or an
ficer who, though not holding such an
fice, was selected for appointment by the Secretary
State, the punishment proposed shall be immediately reported to theSecretary
State and thereportshall be accompanied 10 by a statement
the
fence, the evidence in support,. and such observations as the
ficer has made or desires to make. The Secretary
State may approve, vary or remit the punishment. This Regulation is without prejudice to any local law 15 or regulation providing for the punishment
ficers by the Governor or the head
a department", (The underlining is mine). Where the conduct
an "
ficer" was such as to make him liable for dismissal by the Governor, this could only be done 20 subject to the provisions and the procedure contemplated by regulations 58, 59 and 60. Regulation 58 was applicable to
ficers who neither held an
fice appointment to which was subject to the approval
the Secretary
State, nor was selected for appointment by 25 the Secretary
State and the power
his d-smissal by the Governor was subject to theprocedure set outtherein and which was as follows ίΟ) The
ficer shall be notified in writing
the giounds 30 upon which it is intended to dismiss him; and he >hall be given a full opportunity
exculpating himself. (ii) The matter shall be investigated by the Governor with the aid
the Head
the
ficer's Department, or such other
ficer or
ficers a; the Governor may 35 appoint; piovided that in the case
an
ficer whose pensionable emoluments exceed £600 per annum, 264 3 C.L.R. Kazamias v. Republic Saviides J. the procedure laid down in Colonial Regulations 60(i) to (vii) shall be followed. 5 (iii) If any witnesses are called to give evidence the
ficer shall be entitled to be present and to put questions to the witnesses. (iv) No documentary evidence shall be used against the
ficer unless he has previously been supplied with a copy thereof or given access thereto. 10 15 (v) In lieu
dismissal theGovernor mayat his discretion impose some lesser panalty such as reduction in rank, stoppage
increment, fine or reprimand. Alternatively, if the proceedings disclose grounds for so doing, he may without further proceedings lcquiie the
ficer to retire in accordance with Regulation 59. (vi) If the
ficer is convicted on a criminal charge, the Governor may, upon a consideration
the proceedings
the Court, dismiss the
ficer or subject him to some lesser penalty". In the case
an
ficer holding an
fice appointment to 20 which was subject to the approval
the Secretary
State, or who, though not holding such an
fice, was selected for appointment bythe Secretary
State, theright
the Governor for h's dismissal was subject to a more strict procedure safeguarding the rights
the
ficer, which provided that: 25 3Q ~r "Reg. 60 __._„ (i) The
ficer shall by direction
the Governor be notified in writing
the grounds on which it is proposed to dismiss him and he shall be called upon to state in writing before a dayto be specified (which day must allow a reasonable interval for the purpose) any grounds upon which he relies to exculpate himself. (ii) If the
ficer does not furnish such statement within the time fixed bytheGovernor, orifhe fails to exculpate himself to the satisfaction
the Governor, the Governor shall appoint a Committee to inquire into the matter. The Committee shall consist
not less than three persons. The chairman shall be a Judge, 265 Savvides J. Kazamias v. Republic
ficer. The members
the Committee shall be selected with due regard to the standing
the
ficer concerned, and to the nature and quality
the complaints which are subject
the inquiry. The head
the
ficer's department shall not be a member
the Committee. (iii) The
ficer shall be informed that on a specified day the question
his dismissal will be brought before the Committee and that he will be allowed and, if the Committee shall so determine, required to appear before the Committee and defend himself. 5 10 (iv) Ifwitnesses are examined by the Committee, the
ficer shall be given an opportunity
being present and
putting questions to the witnesses on his own behalf, and no documentary evidence shall be used against 15 him unless he has previously been supplied with a copy thereof or given access thereto. (\) The Committee mayinitsdiscretion permit the Government or the
ficer, to be represented by an
ficer in the public service oi, inexceptional cases,by solicitor 20 or counsel, and may at any time, subject to such adjournment as in the circumstances may be required, withdraw such permission; provided that wheie the Committee permit the Government to be represented they shall not refuse the
ficer permission to be 25 similarly represented. (vi) If during the course
the inquiry further grounds
dismissal are disclosed, and the Governor thinks fit to proceed against the
ficer upon such grounds, the
ficer shall by the Governor's direction be 30 furnished with a written statement thereof and the same steps shall be taken as are above prescribed in respect
the original grounds". Paragraphs (vii) and (viii) set out the procedure to be followed after the report
the Committee was submitted to the Governor 35 and considered by him in Executive Council, and the functions
the Secretary
State after such report was submitted to him. In addition to the above Regulations, dealing with misconduct 266 3 C.L.R. Kazamias v. Republic Savvides J.
an
ficer, regulation 59to which reference has already been made, provided how an
ficer could be dismissed in the public interest. Examining regulations 57, 58, 59and 60, one will notice that 5 the power vested in the Governor for imposing any punishment eitherbywayoffine,reduction inrank,ordismissal,presupposed a right, given to the
ficer, to know the case against him and to have adequate opportunity throughout to make his defence, and under no circumstances the Governor was empowered 10 topunishor dismisshimwithout affording himsuch opportunity in the manner provided for by each respective regulation. Having dealt with the position
civil servants prior to Independence, Iam nowcomingtoconsider theposition asfrom the Independence Day under the provisions
the Constitution 15
Cyprus. Under Article 192
the Constitution, the terms and conditions
service
a public
ficer, as already applicable to him prior to the Independence Day, were preserved. Paragraph (I)
provides as follows:20 25 "Save where other provision is made in this Constitution any person who,immediately before the date
thecoming into operation
this Constitution, holds an
fice in the public service shall, after that date, beentitled to the same terms and conditions
service as were applicable to him before that date and those terms and conditions shall not be altered to his disadvantage during his continuance inthe publicservice
the Republic on or after that date". And paragraph
For the purposes
this Article- 30 (b) 'terms and conditions
service' means subject to ihe necessary adaptations under the provisions
this Constitution, remuneration, leave, removal from service, retirement pensions, gratuities or other like benefits". 35 Matters touching the appointment, promotion, transfer, retirementandexerciseofdisciplinarycontroloverpubhc
ficers 267 Savvides J. Kazamias v. Republic
the Constitution to the Public Service Commission established under Article 124. As to the duties and powers
the Public Service Commission, paragraph
provides as follows:"Save where other express provision ismade in this Consti- 5 tution with respect to any matter s?t out in this paragraph and subject to the provisions
any law, it shall be the duty
the Public Service Commission to make the allocation
public
fices between the two Communities and to appoint, confirm, emplacs on the permanent or pensionable 10 establishment, promot.·, transfer, retire and exercise disciplinary control over, including dismissal or removal from
fice
, public
ficers". The comptence
the Public Service Commission under paragraph
has been judicially considered in a 15 number
cases by this Court, but at this stage, I consider it sufficient to refer only to a few
them. InAhmedNedjati and TheRepublicof Cyprus
the opinion that paragraph 1
125 constituted the Public Service Commission as the only competent organ to decide on all matters stated therein concerning the individual holders
public
fices. It will be seen, therefore, that the objects
paragraph I
include, not only the safeguarding
the 25 efficiency and proper functioning
the public service
the Republic, but also the protection
the legitimate interests
the individual holders
public
fices. This being so the interpretation
any particular provision
the sa;d paragraph 1of Article 125 should be made 30 in the light
the above objects due regard being had, at the same time, to the requirements
practicability and physical possibility". The above passage was cited and adopted by Triantafyllides, P. in the case
Yiallourou v. The Republic
the Foreign Service—and not only some
them, for the sake
the exigencies
the service—
the independence ensured to them having their transfers decided upon by a Public Service Commission, be it the one under Atticle 124
the Constitution or the one under Law 33/67; because, without putting in doubt at all thegood faith
any Minister or Head
Department, it is plainly obvious that a public
ficer feels more inde pendent if his fate in theservice depends not on his superiors but on a separate autononous organ". 15 In 1967 an organic Law, The Public Service Law (Law 33/67) was enacted making provision for "the functioning
the Public Service Commission, for the appointment,promotion and retire ment
pubhc
ficers and their terms
service, disciplinary proceedings and other matters relating to the public service". 20 Under section 5 the functions
the Public Service Commis sion are set out as follows:- 25 30 35 "Πλην τών περιπτώσεων περϊ τών οποίων γίνεται ειδική πρόνοια ευτω παρόντι ή έν οίωδήποτε έτέρω υόμω «ς προς οιουδήποτε θέμαεκτιθέμενουέν τω παρόντιάρθρωκαιτηρουμέυωυ τώυ διατάξεων τοΟ παρόντος ή οιουδήποτε έτερου εκάστοτε έν ΐσχύϊ νόμου, αποτελεί καθήκοντης 'Επιτροπής ό διορισμός,ή έπικύρωσις διορισμού,ή ενταξις είς το μόνιμου προσωπικόν, ή προαγωγή, ή μετάθεσις, ή άπόσπασις και ή άφυπηρέτησιςδημοσίων ύπαλλήλωυ και ή έπ' αυτών άσκησις πειθαρχικούέλεγχου περιλαμβανομέυωντης απολύ σεως ή της απαλλαγής από τώυ καθηκόυτωυ αυτών". ("5. Save where other express provision is made in this or any other law with respect to any matter set out in this section and subject to the provisions
this or any other law in force for the time being, it shall be the duty
the Commission to appoint,confirm, emplace on thepermanent establishment, promote,transfer, second, retire and exercise disciplinary control over, including dismissal or removal from
fice
, public
ficers"). 269 Savvides J. Kazamias v. Republic
the Law, deals with the appointments, promotions, transfers, resignations and retirements
public
ficers. Part VI with the duties and responsibilities
public
ficers. Part VII embodies the Disciplinary Code which sets out the disciplinary
fences and the punishments which can be imposed upon 5 a civil servant
such
fences as well as the procedure to be followed. Section 80 provides that when a public servant is reported to the appropriate authority (as defined in section 2), for having committed a disciplinary
fence, then, if the
fence is one set 10 out in Part I
Schedule I
the Law, the appropriate authority may deal summarily with the case by causing an investigation to be made inter-deparlmentally, as provided by section 81 and after such investigation, if a disciplinary
fence is disclosed, the appropriate authority may proceed to consider the case 15 in the manner provided therein by affording ths
ficer the opportunity to be heard. If the
ficer is found guilty, the appropriate authority may impose upon him any one
the sentences which are set out in Part II
Schedule 1. In cases where the appropriate authority comes to the conclusion 20 that due to the seriousness
the
fence or the circumstances under which it was committed a more serious sentence has to be imposed, then the case is referred to the Public Service Commission, and the procedure to be followed is set out under section 82. The Public Service Commission may impose on 25 such
ficer any one
ihe senlences set out in section 89
the
ficer to be infoimed
the accusations against 30 him and defend himself. Under section 82, provision is made that the public
ficer should be informed
the charge against him, attend the hearing
the case to defend himself, summon witnesses for his defence and be represented by counsel
his choice. The trial before 35 the Commission undei the Regulations set out in the Annex to the said Law, is carried out in so far as this is possible in the same manner as a criminal case tried summarily. Article 54
the Constitution sets out the executive powers to be exercised by the Council
Ministeis which extend to 40 270 3 C.L.R. Kazamias v. Republic Savvides J. powers in all matters, other than those expressly reserved to the President and the Vice-President
the Republic and those within the competence
a Communal Chamber as provided by the Constitution. Such powers include, amongst others:5 "(a) the general direction and control
the Government
the Republic and the direction
general policy; (d) The co-ordination and supeivision
all public services; The competence
the Council
Ministers under Article 10 54 has been examined by this Court in a number
cases. In particular, paragraphs (
Cyprus, 2 R.S.C.C. p. 61 at p. 66 where the Court, expressed its opinion as follows:15 20 25 30 35 "In theopinion
the Court the PublicSeivice Commission, which is established under Article 124, is vested under the Constitution with only those powers which it has expressly been given under Article 125. The residue
any executive power in respect
any matters concerning the public service
a State, which by its constitution has not been expressly given to an independentbody suchas a Public Service Commission, remains vested in the organ
the State which exercises executive power and within whose province the public service
the State normally otherwise comes and in the case
the Republic
Cyprus such organ, under Article 54
the Constitution, and paiticularly paragraphs (
Ministers. It is clear from the wording
paragraph 1
that the Public Service Commission, ir addition to being entrusted with the task
the allocation
public
fices between the two Communities in accordance with Article 123,is only entrusted with powers, such as appointment, confirmation, etc., relating to public
ficers, as holders
public
fices, but not to the public
fices in question themselves. 271 Savvides J. Kazamias v. Republic
new posts inthe public serviceof the Republic and to the making and amending
schemes
service concerning existing or new posts, is a power relating to public
fices and not to the public
ficers, as holders
such
fices, it is not, 5 thus, included among the powers which are entrusted to the Public Service Commission by Article 125 and such power remains vested in the Council
Ministers. This view regarding the effect
paragraph 1
is clearly consonant with the powers
the Council 10
Ministers under Article 54
the Constitution, particularly paragraphs (
a Court Stenographer who had decided on his own to resign and he communicated such intention to the Government with a request that the termination
his services should be treated as having taken place in the public interest it was found that the case was not within the competence
the 20 Public Service Commission and that the appropriate organ to deal with the matter involved was the Council
Ministers. Triantafyllides J. (ashe then was) at p. 631,concluded as follows on this point: "Without going fully into the extent
the competence 25
the Commission—under Article 125.1—in matters
retirement or termination
services
public
ficers, I am satisfied that in the present instance it was the Council
Ministers which was the competent organ to deal with the matter involved in this recourse: 30 What happened was, in essence, that the Applicant had decided, on his own, to resign and he did communicate this to Government by his letter
the 1st January, 1966; he coupled the communication
his decision to lesign with a request that the termination
his services should 35 be treated as having taken place in the public interest, but he did not make his resignation conditional upon his request being granted. Whether or not the request
the Applicant would be 272 3 C.L.R. 5 Kazamias v. Republic Savvides J. granted was a question entailing considerations
public interest and Government policy, as well asfinancialconsequences;these matters werebeyond the limited and specifically laid down competence
the Public Service CommissionunderArticle 125.1,andwithin theresidual competence
the Council
Ministers under Article 54of the Constitution". The construction
s to the residual competence
the Council
Ministers under such Article as expounded 10 in the above cases and to which I agree, was also adopted in Hadjisavva v. The Republic
any matters concerning thepublicserviceof a State,whichbyitsconstitution has not been expressly given to an independent body suchasthePublicServiceCommission, remainsvested in the organ
the State which exercises executive power within whose province the Public Service
the State normally otherwise comes, and in the case
the Republic
Cyprus, suchorgan, underArticle 54ofthe Constitution, and particularly paragraphs (a) and (d), is the Council
Ministers". In dealing asto thepower to terminate the service
a public
ficer in the public interest prior to Independence I have concluded that such power did not emanate from section 6(f) and 7
the Pensions Law, Cap. 311but from the Colonial Regula30 tions and that sections 6(f) and 7were only ancillary provisions enabling the Council
Ministers to grant pension or gratuity in such cases. After Independence, one has to examine within whose competence matters
retirement
a pubhc
ficer "in the public interest" are and wherefrom such competence 35 isderived. InPapaleontiouv. TheRepublic(supra)inthespecial circumstances
that case, it was held that as the question entailed considerations
public interest and Government policy, it was not within the specifically laid down competence
the PublicServiceCommission underArticle 125.1butwithin 273 Savvides J. Kazamias v. Republic
the Council
Ministers under Article 54
the Constitution. In Lyssiotou v. Papasavva and another
a public
ficer following disciplinary proceedings, which would no doubt be within the competence
the Commission; nor are we concernedwith the retirement
a public
ficer 'in the public interest", under the provisions
section 7 10
the Pensions Law, Cap. 311, which would appear to fall within the exclusive competence
the Council
Ministers (cf. the cases
the termination
the services
three Court Stenographers referred to in the case
Papaleontiou and The Republic,
a public
ficer "in the public interest" other than the compulsory retirement
a public
ficer following disciplinary proceedings on matters which under Article 125.1 fall within the exclusive competence 20
the Public Service Commission would appear to fall within the exclusive competence
the Council
Ministers, I disagree that such competence is derived from section 7
the Pensions Law, Cap. 311 but from the residue
any executive powers vested in the Council
Ministers under Article 54
the Consti- 25 tution in respect
any matters concerning the public service which have not been expressly given to the Public Service Com mission under Article 125. Having embarked at some length with the position
public
ficers both prior to and after the Independence, I am now 30 coming to consider the legal grounds on which this recourse is based and which have been argued before me. The minutes
the meeting
the Council
Ministers at which the decision was taken have been produced as exhibit 1 and they read as follows:"To ΎττουργΊκόυ Συμβουλίου, ένασκοϋν τάς εξουσίας τά χορηγούμενος αύτω δυυάμει τών άρθρων 6(στ) και 7 τοΰ περί Συυτάξεωυ Νόμου, Κεφ. 311 (ως έτροττοποιήθη μετα- 274 35 3 C.L.R. 5 10 15 Kazamias v. Republic Satrides J. γενεστέρως), και ττασαυ άλληυ προς τούτο χορηγουμέυην αύτω έξουσίαυ καΐ, κατόπινενδελεχούς εξετάσεως τώυ προσκομισθέυτωυ στοιχείωυ ενσχέσει προς τήυ ανεπίτρεπτουδημοσία συμπεριφοράυ τού κ. Πάνου Άδαμίδη, Γενικού Διευθυντού τού Υπουργείου Παιδείας και τοϋ κ. Παναγιώτη Καζαμία, Γενικού Διευθυντού τού Υπουργείου Συγκοιυωνιώυ και "Εργωυ, ή οποία θίγει βασικως αύτήυ ταύτηυ τήυκρατικήυ ΰπόστασιν και τήν κανονικήν και απρόσκοπτου λειτουργίαν τοΰ κράτους καΐ της Δημοσίας αύτοΰ Υπηρεσίας, λαβόν ΰ π ' όψιν τάς συυθήκας τηςΥπηρεσίας ταύτης καΐ την είς αυτήν χρησιμότητα τών προαναφερθέντωυδημοσίων ύπαλλήλωυκαϊ £νγένει άπάσας τάς περιστάσεις κατέληξευ είςτό συμπέρασμα ότι ή παραμονή αΰτώυ εϊς τήυ Δημοσίαυ Ύπηρεσίαυ όχι μόυου ούδεμίαυ ώφελημότητα θά παρεϊχευ είς ταύτηυ, αλλά και θά ήτο λίαυ επιβλαβής δι* αύτήυ και άπεφάσισευ όπως αί Οπηρεσίαι αυτών τερματισθώσι προς τ ό δημόσιου συμφέρον άπό σήμερον, μέ πλήρη τ ά ωφελήματα άφυπηρετήσεως, τών οποίων ούτοι δικαιούνται". The English translation
which reads as follows:- 20 25 30 35 40 " T h e Council
Ministers in exercising thepowers vested in it by sections 6(f) and 7
the Pensions Law, Cap.311 (as later amended), and any other power in this respect vested init and, after a thorough examination
the material produced in relation to the unbecoming conduct in public
Mr. Panos Adamides, Director-General
the Ministry
Education and Mr. Panayiot's Kazamias, DirectorGeneral
the Ministry
Communications and Works. which
fends basically the very subsistence
the State and the proper and unfettered functioning
the State and its Public Service, having taken into consideration the conditions
such Service and the usefulness
the aforesaid public
ficers thereto andgenerally all the circum stances, came to the conclusion that their stay in the Public Seivice could n o t only serve n o useful purpose to it, b u t it would also be very detrimental thereto and decided that their services should be terminated as from today in the public interest, with full retirement benefits, to which they are entitled". As I have already mentioned counsel for applicant, both prior to thehearing by letter, as well as in the course
the hearing, 275 Savvides J. Kazamias v. Republic (1982 asked to be informed
the source and nature
"the material before the Council
Ministers" which led it to the conclusion that the conduct
the applicant was unbecoming conduct in public undermining the State and its Public Service, but there was no response to such tequest. It was counsel's contention both in the grounds
law set out in the recourse and m his address to the Court that there was lack
due reasoning
the decision which violated one
the basic principles
admi nistrative law in that respect. 5 It is a well established principle
Administrative Law that 10 administrative decisions have to be duly reasoned. Due reaso ning is essential to enable the Courts to carry out properly their function
judicial control
administrative actions. (See Rallis and the Greek Communal Chamber,5 R.S.C.C. 11, Jakovides v. The Republic
Architects and Civil Engineers
Aicfutects and Civil Engineers
the concepts
administrative law that admi nistrative decisions must be duly reasoned. Due reasoning is lequncd in order- to make possible the ascertainment
the proper application
the law and to enable the due carrying out
judicial control". And then he goes on to refer to the judgment
Megaw, J. in Re Poysei and Mills' Arbitration [1963] 1 All E.R. 612 at ρ 616 on the same topic, and he concluded as follows at p. 205. 25 30 "It is to be observed that the giving
reasons in England comes within the concept
error
law which includes the giving
leasons that are bad in law, or (if there is 35 a duty to give reasons) inconsistent, unintelligible or other wise substantially inadequate What amounts to du; reasoning in a question
degree 276 3 C.L.R. Kazamias v. Republic Savvides J. depending uponthenatureofthedecisionconcerned,but the reasoning behind an administrative decision may be found either in the decision itself or in the
ficial records related thereto*'. 5 Re Poyserand Mills"Arbitration is also referred to in the case
Givaudan& Co. Ltd. v. The Minister
Housing etc. [1966] 3 All E.R. 696. The Court in the latter case was dealing with an application to quash the Minister's decision dismissing an appeal against the refusal
a planning authority for the grant 10
planning permission. The facts
the case were shortly as follows :- i5 20 25 30 "An application for planning permission was refused by the local planning authority on three grounds. The applicantsappealed to the Minister
Housing and local Government, who appointed an inspector to hold a local inquiry. The inspector set out his conclusions in paras. 61-68
his report in which, after stating that the effect
a Bill (later enacted) might require consideration, he dealt with the three grounds and found in favour
the applicants on two
the grounds and against them on the third. He recommended, on the basis
the adverse conclusion, that the appeal should be dismissed. The Minister, in para. 3
his letter notifying his decision on the appeal and his reasons therefor, set out what appeared to be intended as a summary
paras 61-68
the report, omitting, however, a passage crucial to the inspector's conclusion on one
the grounds
objection onwhichhe had found in favour
the applicants. Paragraph 4
the Minister's letter stated merely that he agreed with the inspector's conclusions, without identifying which
those conclusions and accepted his recommendation. A copy
the Inspector's report wasenclosed with the letter. The Minister dismissed the appeal". Megaw, J. had this to say at page 698:- 35 "I have come to the conclusion that the Minister's letter
Aug. 6, 1965,is so obscure, and would leavein the mind
an informed reader such real and substantial doubt as to the reasons for his decision and as to the matters which he did and did not take into account, thai it does 277 Savvides J. Kazamias v. Republic
r. 11
reasons,
the inspector's conclusions, provided that those conclusions are, in them selves, sufficiently clearly and unambiguously expressed". In Zavros v. The Council
Registration
Architects and Civil Engineers (supra) Stavrinides, J. had this to say at p. 10 315:"It is evident that the whole object
the rule requiring reasons to be given for administrative decisions is to enable in the first instance the persons concerned, and the Court on review, to ascertain in each case whether the decision 15 is well founded in fact and in Law (cp. Porismata Nomologhias. p. 183, fiist paragraph); and from this three propo sitions follow: (I) the reasons must be stated clearly and unambiguously;
the rule". 1η Pancyprian Federationof Labour (PEO) and The Board
CinematographFilm Censorsetc.
the proper reasoning that is required, either by legislative provisions or by general principles
administrative law, renders the administrative action concerned defective and, therefore, subject to annulment (see Conclusions from the Jurisprudence
the Council 30
State in Greece 1929-1959 p. 267). Such defect exist> in the present case in relation to the sub judice decision
the Censorship Committee and I have reached the view that in the circumstances
this caseit is a material defence which is sufficient to cause the annulment
such decision". 35 In the sub judice decision there is further reference to the decision having been taken in the pubhc interest. Counsel 278 3 C.L.R. Kazamias v. Republic Savvides J. for the respondent in addressing the Court said that he was not suggesting that the character
the applicant was such that his presence in the service would be detrimental to the service, but because the applicant expressed himself in such terms against 5 the Government that (to use counsel's own words) "in the public interest the person in question should no longer be in the public • service because he has presented the Republic as being 'without a Head* without a leader and the country lacking
good and efficient government, and if he has made it clear that he is not 10 prepared to co-operate with this Government and with there Ministers in his capacity as Head
the Ministry in question, then it might be open to the Council
Ministers to come to the conclusion that the public interest requiies the termination
the service
the
ficer in question". No such facts, how15 ever,appear anywhere in theminutes or the letter communicating the decision
the Council
Ministers to the applicant which led it to invoke public interest other than a general averment
public interest. 20 25 30 35 A general averment
public interest does not amount to a sufficient reasoning but the invocation
public interest must be justified with a specification (έΣειδίκευσις)
the serious reasons
public interest which are involved. See, in this respect, "Modern Trends
the Principle
Legality" in Administrative Law" 1973 Ed., by Tahos, where at p. 146 it reads:" Ή έννοια τοΰ δημοσίου συμφέροντος είναι ευρύτατη. Τοϋ κοινοϋ (δημοσίου) συμφέροντος διαφέρει τό συμφέρον τοΰ Δημοσίου (Fiscus). Ή αφηρημένη δέ έττίκλησίς του θά κατέληγεν είς αύθαιρεσίαν της Διοικήσεως. "Οθεν, πρέπει να εξειδικεύεται έν έκαστη συγκεκριμένη περιπτώσει. Διότι τότε θά εΐναι δυνατός ό δικαστικός έλεγχος της όρθης ή μη υπαγωγής τών πραγματικών γεγονότων είς την περί ής ό λόγος εννοιαν". ("The notion
public interest is very wide. That
common (public) interest differs from that
the public (Fiscus). Its abstract invocation would result in abuse by the Administration. Therefore it must be specified in every "particular case. Because then judicial control
the correct or not subjection
the actual facts to the said notion would be possible".) 279 Savvides J. Kazamias v. Republic (19S2) And under foot-note
public (common) interest must be distinguished both from the public interest (Fiscus) and 15 the interest
the public service. (See C.S. 309/1955, 801/1958, 2178/1970). The said notion is not so vague as not to be subject to judicial control. On the contrary it constitutes a legal notion and therefore it does not escape the control
the Council
State. Example: The 20 refusal to grant a passport by virtue
section 3
Law 2363/1953 must be duly reasoned by the specification
the serious reason
public order or interest whereby the administration arrived at such refusal (see 154/1954, 1122/ 1964, 2306/1968, 942/1971 and others".) 25 Decision 942/1971
the Greek Council
State to which reference is made in the above notes was one
the cases where the issue
a passport was refused under statutory authority vested in the appropriate authority for the issue
passports to refuse such application foi "serious reasons
public order or interest". The material part
the decision reads as follows: (at pp. 1241, 1242) 30 " Ή κατ* έφαρμογήν της ανωτέρω δυνάμεως άρνησις της Διοικήσεως όπως χορήγηση διαβατήριονείς τόνύποβαλόντα σχετικήν αιτησιν, δέον, ώς έκ της φύσεως τοΰ μέτρου, συνε- 35 παγομένου περιορισμόν της προσωπικής ελευθερίας, νά αΐτιολογήται πλήρως δια της εξειδικεύσεως τοΰ σοβαροΰ λόγου δημοσίας τάξεως ή, συμφέροντος, Ινεκα τοΰ οποίου ή αποδημία τοΰ αναφερομένου ήθελε καταστη επιβλαβής είς 280 3 CUR. 5 10 15 20 25 30 35 40 Kazamias v. Republic Savvides J. τήν χώραν, κατά τήν ούσιαστικήν εκτίμησαν της Διοικήσεως, έρειδομένην επί συγκεκριμένων πραγματικών περιστατικών. Ή τοιαύτη δέ αίτιολογία δέον νά προκύπτη είτε έκ της οίκείας διοικητικής πράξεως περί αρνήσεως χορηγήσεως διαβατηρίου είτε έξ έγγραφων στοιχείων είς ά αύτη αναφέρεται. Επειδή έν προκειμένω ή μνημονευθείσα 7038/16.9.1970 πραξις τοΰ Διευθυντού 'Αποδημίας καΐ Μεταναστεύσεως, της οποίας ή αίτιολογία συνιστά τήν αίτιολογίαν της επι δίκου σιωπηράς παραλείψεως της Διοικήσεως, αναφέρει απλώς ότι δέν εγκρίνεται ή χορήγησις διαβατηρίου εις τόν αΐτιοϋντα προς μετάβασιν του είς τό έξωτερικόν, δια σοβαρούς λόγους δημοσίας τάξεως και συμφέροντος, ήτοι αρκείται είς τήν άπλήν επανάληψιν της διατάξεως τοΰ νόμου, μή διαλαμβάνουσα τά έφ5 ών στηρίζεται συγκεκριμένα περιστατικά, καΐ ούτω στερείται της κατά τήν προηγουμένην σκέψιν απαιτουμένης αιτιολογίας. Ή Ιλλειψις δέ αύτη δέν άναπληρούται έκ τών στοιχείων τών διαβιβασθέντων ύπά της Διοικήσεως- φακέλλων, και δή τού ύπ* αριθ. 1/395863/ 203053 ά π ό 2.9.1970 έγγραφου της Γεν. Δ/σεως Έθν. Άσφαλείας, τό όποιον επικαλείται ή αύτη πράξις τού Διευθυντού Άποδηΐί'ας και Μεταναστεύσεως, διότι καΐ έν αύτω διατυπούται απλώς ή γνώμη περί τού μή ενδεδειγμένου της αποδημίας τοΰ αιτούντος, διότι ούτος εξερχόμενος θά παραβλάψη τ ά εθνικά συμφέροντα, άνευ επικλήσεως τών περίστατικών, κατ 1 έκτίμησιν τών οποίων έσχηματίσθη ή γνώμη αύτη. Συνεπώς ό μοναδικός λόγος της ύπό κρίσιν αιτήσεως, περί τού μή ήτιολογημένου της επιδίκου παραλείψεως, ελέγχεται βάσιμος, και δια τόν λόγον τοϋτον είναι αύτη άκυρωτέα, ώς και ή συνιστώσα τήν αίτιολογίαν αυτής ώς άνω πραξις τού Διευθυντού 'Αποδημίας και Μεταναστεύσεως". ("The refusal
the Administration, in the exercise
the above power to grant a passport to the one submitting the relative applica'ion, must, due t o the nature
the measure, involving the restriction
personal freedom, be duly reasoned by the specification
the serious reason
public order oi interest, by virtue
which the emigration
the above mentioned might become harmful to the country, according to the substantive evaluation
the Administra tion based on specific facts. Such reasoning should either appear in the respective act refusing the grant
a passpon or from written documents to which it refers. 281 Savvides J. Kazamias v. Republic
the Director
Emigration and Migration, whose reasoning constitutes the reasoning
the sub judice tacit omission
the Administration, simply mertions that the issue
a passport to the applicant for proceeding abroad is not 5 approved for serious reasons
public order and inteiest, i.e. it is restricted to tht mere repetition
the provision
the law, not including the actual facts on which it is based and thus lacking the reasoning required under the above principle. This lack
reasoning is not supple- 10 mented by the files submitted by the Administration and especially by No. 1/395863/203053dated 2.9.1970document
Gen. Directorate
National Security which is invoked by the said act
the Director
Emigration and Migra tion because in it, also, the opinion is simply stated that 15 applicant's migration is not indicated, because when he proceeds abroad he will prejudice the national interests, without invoking the facts on whose evaluation this opinion was formed. Therefoie the only ground
this application that the sub judice decision is notreasoned iswell-founded, 20 and for this rea?or it should be annulled as well as thj act
the Director
Emigration and Migratior constituting its reasoning".) Also, in Dagtoglou—General Administrative Law cd. Vol. A at p. 88. 1977 25 "To δημόσιο συμφέρον (ή εθνικό, γενικό ή κοινωνικό ή κοινό συμφέρον) δέν μπορεί νάορισθεί έκ τών προτέρων κατά τρόπο πού θά είναι απαλλαγμένοάπό αοριστολογίες,σφάλ ματα και μονομέρειες. Τό δημόσιο συμφέρον εΐναι μίαέννοια πού άποκτα πρακτική, χειροπιαστή σημασία, μόνο μέ τήν 30 συγκεκριμενοποίηση της". ("The public interest (or national, general or social or common interest) cannot be defined in advance in such a way as to be free from vagueness, mistakes and paitialities. The public interest is a notion which acquires practical, evident importance only with its specification"*. And at p. 89, " — Ήσυγκεκριμενοποίηση τούδημοσίουσυμφέροντοςγίνεται πρώτα-πρώτα άπό τό Ίδιο τό Σύνταγμα, κατόπιν (και 282 35 C.L.R. Kazamias v. Republic Sattides J. είδικότερα) άπό τον νόμο και—κατ* εξουσιοδότηση τού νόμου —άπό τήν κανονιστική πράξη της διοικήσεως, άλλα και άπό τήν πράξη πού εκδίδεται κατ' άσκηση της λεγομένης διακριτικής εύχερείας της διοικήσεως. 5 10 15 20 25 30 35 Τό δημόσιο συμφέρον δέν αποτελεί λοιπόν κριτήριον πέρα καΐ υπεράνω τοΰ θετού δικαίου, άλλα εκφράζεται άπό αυτό, μέ τρόπο καΐ κατά τους τύπους πού αντιστοιχούν στην Ιεραρχίατού θετούδικαίου. Μέ άλλα λόγια,τό δημόσιο συμφέρον δέν μπορεί νά θεμελιώσει απαλλαγή άπό τήν αρχή της νομιμότητος, αλλά, αντιθέτως, δημόσιο συμφέρον είναι μόνο ότι τά συνταγματικώς οριζόμενα όργανα ορίζουν ώς δημόσιο συμφέρον. Τά όργανα αυτά εΐναι πρώτιστα ή συντακτική καΐ νομοθετική εξουσία. Ή διοίκηση καθορίζει τό δημόσιο συμφέρον μόνο στό πλαίσιο τοΰ συντάγματος και τών νόμων και μόνο εφόσον καΐ καθόσον εΐναι εξουσιοδο τημένη προς τούτο άπό τό σύνταγμα καΐ τους νόμους". (" The specification
public interest is made first
all by the Constitution itself, then (and in particular) by the law and—by the authority
the law—by the icgulatory act
the administration, but also from the act issued in the exercise
the so-called discretion
the administra tion. The public interest does not therefore constitute a criterion over and above the adopted law, but is expressed by it in a manner and with the formalities which correspond to the hierarchy
the adopted law. In other words public interest cannot establish exemption from the rule
legality, but on the contrary pubhc interest is only what the constitutionally appointed organs define as public interest. These organs are firstly the constitutional and legislative powers. The Administration defines the public interest only within the framework
the Constitution and the laws and only so long and as far as it is authorised in this respect by the Constitution and the laws".) With the above principles in mind and having iegard to the reasoning
the sub judice decision, I agree with the submission
learned counsel for the applicant that such decision is not properly or sufficiently reasoned. Such decision is oveishadowed by a cloud
generalities invoking allegations
283 Savvides J. Kazamias v. Republic
the applicant
such nature as to make it necessary in the public interest to impose upon him the ultimate punishment
terminating his permanent appointment with the Government service, without mentioning particulars
such allegations, or the evidence 5 on which the Council
Ministers relied, or any surrounding circumstances and also by failing to specify (εξειδίκευση) the matters
public interest involved. The reasons mentioned in the decision are not such as to enable in the first instance, the person concerned, and the Court on review, to ascertain 10 whether the decision is well founded in fact and in law (see Zavros' case (supra) ). The Minister's letter to the applicant conveying to him the decision
the Council
Ministers and the decision itself as recorded in the minutes
the Council
Ministers, are so 15 obscure and substantially inadequate and would leave in the mind
an informed reader such real and substantial doubt as to the reasons for such decision and as to the matters which the Council
Ministers did or did not take into account in taking the sub judice decision, that they do not complv with 20 the well established principles
proper reasoning, compliance to which is necessary under the general and well established principles
administiative law. In view
the above, I have reached the conclusion that the sub judice decision is defective and in the result has to be annulled. 25 Independently
my above conclusion, I am coming now to consider the next question which is posed, as to whether in the circumstances
the present case, and assuming that the Council
Ministers had competence in the matter, it was 30 within such competence
the Council
Ministers to terminate the applicant's service in the Government, in violation
the rules
Natural Justice and without affording him theprotection guaranteed by such rules. Counsel for the respondent submitted that the sub judice decision was an administrative measure taken by the Council
Ministers in the public interest under section 7
Cap. 311 and not a disciplinary sanction, and in consequence, the Council
Ministers was not legally bound to accord to the applicant 284 35 3 C.L.R. Kazamias v. Republic Savvides J. the right to be heard, though, as he conceded, ideally it would have been better if such right was given to the applicant. In suppoit
this argument, he relied on certain extracts from the "Conclusions
the Case Law
the Council
State in 5 Greece, 1929-1959), the decisions
the Greek Council
State in Case No. 1005/33, No.354/38, No. 1711/65, No.670/58 and No. 1415/58, to the French Administrative Law as expounded by Odent "Contentieux Administratif" (1965-1966) at p. 166 and Plantey "Traite Pratique de la Fonction Publique" 10 Paris, 1971 at p. 123 and, finally, to the decisions
this Court in Christodoulouv. The Republic
the Council
Ministers in Giesce to dismiss a Mayor or a Muni15 cipal or Communal Council, derived from express provisions in the "Municipalities and Communities Laws" for the purpose
securing the proper functioning
a Municipality. Some
such cases fuither deal with the constitutionality
certain provisions in the said laws. Such cases are distinguish20 able from the present one and cannot be
any assistance in the matters undci consideration. Case No. 1711/65 does not advance the aigument
counsel foi respondent, but on the contrary, it is against such argument and may be rather cited in support
thecontentionof applicant 25 that the rules
Natural Justice have to be observed. This case (1711/65) deals with the temporary suspension
ths service
a public
ficer for a period
six months which may be extended for a further period
six months under express legislative provisions
Law 2500/1953 in cases specifically 30 enumerated theiein mainly dealing with inefficiency or inability
the public
ficer to perform his duties and lack
co-opera tion with his colleagues or with the Minister within whose juris diction the seivice
the
ficer falls. The last part
such decision, reads as follows:35 40 " 'Επειδή, έν προκειμένω, τά Ύπουργικόν Συμβούλιον, ώς δείκνυται έκ της προσβαλλομένης αποφάσεως του,έκρινεν 6τι επιβάλλεται, κατ' έφαρμογήν τών ανωτέρω διατάξεων, ή θέσις τού αιτούντοςείς διαθεσιμότηταδια τους έν τη εΐσηγήσει τού Ύφ. της Προεδρ. της Κυβερνήσεως εκτιθεμένους έν λεπτομέρεια λόγους. Είδικώτερον ή κρίσις αύτη τού 285 Savvides J. Kazamias v. Republic
Ministers as 30 is shown by its sub judice decision has decided that, in application
the above provisions it is necessary to inter dict the applicant for the reasons stated in detail ia the submission
the Deputy Minister
the Presidency
the Government. Particularly this decision
the Council 35
Ministers was founded on the specific accusations which by means
the above submission
the Deputy Minister were attributed to the applicant, which consist
anomalies in the execution
serious building works, atbitrarinesses and breaches
existing provisions in the execution by 40 him
his duties as Director
erection works and the 286 3 C.L.R. 5 10 15 20 25 30 35 40 Kazamias v. Republic Savvides J . lack
a sense
co-operation towards his colleagues and his'superior Deputy Minister, all these accusations gathered from the special in the above submission acts or omissions
the applicant. On the above facts and having in mind that the decision on the desirability
the imposition in this respect
the measure
interdiction is based mainly on the above attributted specific culpable breaches against the applicant, there should on the true meaning
the piovisions stated in the above opinion, have preceded a call on him to give explanations on the said accusations, and thus the Council
Ministers, in view, also,
the explanations
the applicant, may decide OP thenecessity
the imposition against him
this onerous measure
interdiction. But in this respect, as it appears from thefile, the above essential formality
the proceedings has not been obseived, and therefore, for this reason, having been examined by the Court on its own motion, the sub judice decision
the Council
Ministers and the Royal Decree based thereon inteidicting the applicant, are null and void thus rendering unnecessaiy the other reasons for annulment".) The recent trend, however, in Greece appears to have super seded that
the old cases concerning the right
hearing. Such trerd is explained in "Administration and the Law" (Διοίκησις καϊ Δίκαιον) by Tsoutsos 1979 Ed. at pages 132-133 as follows:"Σαφέστερον καϊ άποτελεσματικώτερον ή νομολογία τοΰ ελληνικού Συμβουλίου τής 'Επικρατείαςεστράφηπροσφάτως υπέρ τής εφαρμογής της αρχής τής ακροάσεως έπΐ λήψεως μέτρου προσωπικού χαρακτήρος κατ' ασκούντων δημόσιον λειτούργημα, έν αντιθέσει προςτην παλαιοτέραν νομολογίαν1. Ή κλήσις τού ενδιαφερομένου άπητήθη ύπό προσφάτου 2 αποφάσεως τοΰ Συμβουλίου τής 'Επικρατείας έπΐ τής εφαρ μογής τού άρ. 24 τού ν. 184/1914 'Περί συστάσεωςεμπορικών καϊ βιομηχανικών επιμελητηρίων', ώς αντικατεστάθη διά τοΰ αρ. 2 τοΰ ν.δ/τος 2649/1953
the Greek Council
State lately leaned towards the implementation
the rule
hearing on the taking
mea* sures
personal character against peisons holding public
fices in contrast to the previous jurisprudence*. The hearing
the interested party was required by a recent decision
ths Council
State** in the application
Law 184/1914 'Establishment
Chambeis
Commerce and Industry' as icplaced by section 2
cider 2649/1953
the Chambers
Commerce and Industty may be dissolved by a decision
the Minister
Commerce besides other reasons, and because
irregularities in the administration or the completion
their works, and the Minister is vested with the discretion, Listsad
dissolving the Board, to pronounce the dismissal
some membeis
the Boaid or even its dissolution. The thus taken measuie docs not have a disciplinaiy character but it constitutes a measure
ordei since thers have been irregularities which the appropriate organs were unable to foresee and prevent taken for the restoration
the smooth functioning
the said chambers and having thus on principle an objective character. But since this measure is directed specially against a certain member
the administrative organs
these Orga nizations declaiing him personally dismissed from his * Case No. 1311/56
the Greek Council
State. ** Case No. 419/65
the Greek Council
State. 289 Savvides J . Kazamias v. Republic
the problem by the Minister. Therefore, and on the taking
a measure expressly described as administrative and not as disciplinary it is imperative that the person, who is to be specially affected by attributing blame on him, be called upon to furnish an explanation. The approach
this solution to the above stated jurisprudence
the French Council
State, on the taking
measures against persons holding public
fices, is quite obvious. In addition and on the imposition
the measure
interdiction against a public
ficer the jurisprudence has found the chance to implement the rule
hearing. Preci sely it was about the interdiction envisaged by section 9
order 2500/1953, imposed on senior permanent political
ficers by a decision
the Council
Ministers issued on the reasoned submission
the appropriate Minister once they do not possess the required sufficiency or fitness or increased output for the unfettered functioning
tho service or they do not show a sense
co-operation with their colleagues or the superior Minister. In case the decision for placing under interdiction was based on specific accusations gathered by acts or omissions
the
ficer, it was accepted that the measure
interdiction can be taken only after calling on the interested party to give explanations on the attributed to him specific accusations, so that the Council
Ministers in view
these explanations may decide on the necessity
the imposition
the onerous measure
interdiction. This calling for the furnishing
explanations constitutes an essential formality
the proceedings biing examined by the court on its own motion, and its non-observance n-ndeis void the decision to impose an interdiction".) 5 10 15 20 25 30 35 And he concludes at page 134 as follows:"Κατά ταύτα δυνάμεθα έν συμπεράσματι νά εΐπωμεν ότι κατά την νομολογίαν τοΰ ελληνικού Συμβουλίου τής Επι κρατείας ή αρχή τής εκατέρωθεν ακροάσεως επιβάλλεται 40 καϊ άνευ ρητής διατάξεως είς τάς έξης περιπτώσεις: 290 3 C.L.R. Kazamias v. Republic Savvides J . (α) Προκειμένης επιβολής πειθαρχικής ποινής είς πρόσωπον εΰρισκόμενον έν υπηρεσιακήεξαρτήσει έκ της Διοικήσεως. 5 (β) Έπΐ λήψεως διοικητικού μέτρου, απευθυνόμενου είδικώς καθ* ώρισμένου προσώπουασκούντος δημόσιον λειτούργημα λόγω αποδιδομένης είς αυτό ύπαιτιότητος. (γ) Έπΐ επιλύσεως ΰπό διοικητικού οργάνου αμφισβητή σεως, έγειρομένης μεταξύ δύο μερών ή κατά διοικητικής πράξεως, έξ ής ώφελεΤταί τις". 10 15 ("Therefore, we can in conclusion, say that according to thejurisprudence
the Gieek Council
State the rule
hearing both sides is obligatory without any express provisions in the following instances: (a) Inrespect
the imposition
a disciplinary punishment on a person who is
ficially depended on the Administration. (b) On the taking
an administrative measure directed specially at a certain person exercising a public function due to blame attributed to him. 20 25 (c) On resolving by an administrative organ
a dispute which has arisen between two parties or against an administrative act, whereby someone has derived some benefit".) The case
Christodoulou v. The Republic (supra) is distingui shable from the present case. Inthatcase the Court was dealing with a measure, not amounting to a disciplinary one, taken by the Commander
Police in the exercise
a legitimate right under the Police (General) Regulations 1958 to 1960. As to the position under the French Administrative Law, reference will be made later in this judgment, when citing the 30 case
The Republic
Cyprus and Antonios Mozoras
our own jurisprudence on this matter emanating from our Constitution, statutory enactments and the decisions
our Supieme Court. 291 Savvides J. Kazamias v. Republic
Cyprus and Antonis Mozoras (supra) which was decided at a time when there was no express statutory provision laying down the procedure to be followed by the Public Service Commission when exercising its functions under Article 125.1
the Constitution. Such provision has since been laid down by the enactment
the Public Seivice Law 33/67 to which I have already referred earlier in this judgment. Josephides, J. had thi& to say at pp. 399, 400:- 5 "As pointed out in theopening paragraphs
thisjudgment, 10 the whole case turns on the construction which may be placed on Article 125.1
our Constitution. Under that paragraph it is the duty
the Public Service Commission to 'retire and exercise disciplinary control over, including dismissal or removal from
fice,
public
ficers'. The 15 question which arises for consideration is, in the absence
any express statutory provision, laying down the procedure to be followed, the rules
evidence to be applied, or conferring any powers on the Commission, what is the proper course to be followed by the Commission in 20 carrying out that duty? As held in previous cases, the Commission in exercising disciplinary control has to comply with certain well-established principles
natural justice and the accepted proceduie governing the dismissal
public
ficers (Andreas A. Marcoullides and The Republic 25 (Public Service Commission), 3 R.S.C.C. 30 at page 35). Now, what are the rules or principles
natural justice? The two essential elements
natural justice are in modern times usually expressed as follows: (
natural justice, e.g. that the parties must have due notice
when the tribunal will proceed, etc., may be said to be merely extensions or refinements
the two main 35 principles stated above. According to Professor B^Schwartz in his book entitled 'French Administrative Law and the Common Law World* 292 3 CUR. 5 . 10 15 20 25 Kazamias v. Republic SawHes J.
natural justice. The principles
natural justice can be said to be as much a part
British administrative Law as the procedural demands that the United States Supreme Court has held are required
the American administration under the 'due-process* clause Throughout the web
our system
administration
justice in Cyprus (if I may borrow the happy phrase
Lord Chancellor Sanky in another context in the Woolmington case) one golden thread is always to be seen, that is to say, that a person is entitled to a fair hearing, winch means that he must be informed
the accusation made against him and given an opportunity
being heard before judgment is passed on him. These principles arc now enshrined in our Constitution, Articles 12.5 and 30 repro
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.