clr/1982/1982_3_871.pdf

(1982)suchdecision not wrong in Law andnot taken aftera defective inquiry. Theapplicant, a member ofthePoliceFoicewason 11.4.1978 arrested in Limassol in connection with a seditious conspiracy against the State and as from that day he was duly interdicted 5 pending an inquiry into the commission of that offence. In respect of the period of interdiction from his duty he was receiving an interdiction allowance equal to half of his pay, as provided by Police Regulation 23(b). He was remanded in custody until 18.5.1978 when he was released. He was 10 not prosecuted for that offence but in the course of the inquiry evidence revealed that he had committed disciplinary offences. Two parallel proceedings were put in motion against him for disciplinary offences. Aftei the proper procedure was followed, hewasfound guilty ofdisciplinaryoffence;» includingthecariying 15 of an automatic weapon during the days of the coup, and a fineof£200.-wasimposedonhimon 17.10.1979. On18.10.1979 he resumed his normal duties. The applicant has not challenged cithei nis inteidiction or his conviction or sentence. 20 By letter dated 7.3.1980 addressed to the Commander of the Police he requested payment of half of his pay for the period of his interdiction, amounting to £2,087- as the disciplinary offence for whichhewasfound guiltyand fined wasunconnected withtheoffence duetotheinquiiy intowhichhewat.interdicted. 25 The Commander of Police, by letter dated 12.4.1980, turned downhis request on the ground that thedisciplinary proceedings and the applicant's conviction were the result of his unlawful activities even though he was not criminally piosecuted. Counsel for the applicant mainly contended: (a) That the applicant was not prosecuted or charged in disciplinary proceedings for the offence for which he was interdicted and, therefore, undei legulation 23(0(0* of the Police Regulations he was entitled to receive the pay and allowances to which he would 35 have been entitled but for his interdiction fiom duty; * Regulation 23(0(0 is quoted at p. 876 post. 872 30 3 C.L.R. SergbJou v. Republic (b) That the sub judice decision infringes the principle of equality safeguarded by Article 28 of the Constitution; and, lastly, 5 10 15 20 25 30 30 40 (c) That the Commander of the Police acted under a misconception of fa:t and in abuse of his powers as he took into consideration "unlawful activities" of the applicant for which he was not prosecuted either ctiminally oi disciplinarily. Held,

(1)that the applicant was charged, found guilty and fined for a disciplinary offence; that the wording of regulation 23(f)(

1. i)doesnot permit the construction placed on it bycounsel for the applicant; that the interdicted member of the Force need not becharged with the offence for the inquiry into which he was interdicted; that the indefinite article "an" is used; that it would have been really absurd if a member of the Police was interdicted and during the inquiry it was found out that hehad committedcriminal ordisciplinaryoffences other than the one for which the inteidiction, and when charged and found guilty on thesecharges, to beentitled to hispay as if exonerated from any liability; that the only literal and reasonable construction of the words of this Regulation is that a member ofthePoliceisentitledtohispayifnochargefor anydisciplinary offence against him is preferred and not when he is proceeded with any disciplinary offence other than the one for which the inquiry started; accordingly contention (
2. a)should fail.

(2)That the principle of equality entails the equal or similar treatment ofall thosewhoarefound to bein the samesituation; that regulation 23 governs interdiction of all members of the Police Force, their pay allowance during the interdiction and the circumstances under which, after the interdiction, a member of the Force may leceive the allowance not paid him due to the interdiction; that it is of general application to all members of the Police Force; that the Police Force is a class of its own; thattheieisnodifferentiation betweenthemembersoftheForce; that the only differentiation in regulation 23(f) is between those who were either not charged or the charge against them was dismissed or on whom a light sentence was imposed (regulation 23(f)(iiP )and thosewhowerecharged,found guiltyand leceived a foim and extent of punishment more severe than the one set out in paragraph (f)(iii); that this is a reasonable differentiation 873 Serghlou v. Republic

(1982)and it does not infiinge the principle of equality; that the members of each of these two broad categories leceive equal treatment; accordingly contention (b) should fail.

(3)That under the Regulations the Commander of the Police in the case of this applicant, who received a punishment of 5 £200.-fine,which exceeds 10days of his pay, had no discretion toexercise;hesimply appliedtheLaw;that theletterof 12.4.1980 is only informative irrespective of its wording; that the nonpayment of the applicant is by operation of law and not by any decision, act or omission of the Commander; that an admi- 10 nistrative act in the sense of Art. 146.1 ofthe Constitution is an act or omission which produces legal results and affects a person; that only such act is amenable to the jurisdiction of this Court; that even if it is argued that the Commander was empowered by Law to take any decision, which he did, 15 and his decision is contained in the letter of 12.4.1980, I am of the view and so hold, that such decision was neither wrong in Law nor taken after defective inquiry, as he did not fail totakeintoconsiderationanything existentortookintoconsideration anything non existent; that the "unlawful activities" 20 referred to in that letter are those for which the applicant was charged and convicted. Application dismissed. Cases refened to: Burtonv. UnitedStates, 196 U.S. 283, 295; 49 Law. ed. 482, 25 485; Saba andAnother v. Republic

(1980)3 C.L.R. 149; Mikrommatis v. Republic, 2 R.S.C.C. 125; Panayides v. The Republic

(1965)3 C.L.R. 107; Loucas v. The Republic

(1965)3 C.L.R. 383; 30 Impalex AgenciesLtd. v. The Republic

(1970)3 C.L.R. 361; The Republicv. Nishan Arakian and Others

(1972)3 C.L.R. 294, at p. 298; Lordos&Sonsv. The Water BoardofLimassol

(1978)3 C.L.R. 215; Decisions of the Greek Council of State in CaseNos. 1273/65, 1247/67, 2063/68 and 1215/

1. 874 35 3 C.L.R. 5 Serghiou v. Republic Recourse. Recourse against the refusal of the respondent to direct the payment to applicant of half of his pay not received by him due to his interdiction. N. Neocleous, for the applicant. S. Georghiades, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. STYLIANIDESJ. read the following judgment. Bythis recourse 10 the applicant seeksa declaration that the refusal of the Commander of the Police to direct the payment to him of half of his pay not received by him during his interdiction from 11.4.78 18.10.79 is null and void and of no effect. The applicant joined the Police Force on 16.6.
2. His 15 services were terminated for the public interest on 1.8.73 and on theday following the coup of 15thJuly, 1974,hewas restored to hisprevious position and posted at Limassol Police Division. On 11.4.78 he was arrested in Limassol in connection with a seditious conspiracy against the State and as from that day he 20 was duly interdicted pending an inquiry into the commission of that offence. In respect of the period of interdiction from his duty he was receiving an interdiction allowance equal to half of his pay, as provided by Police Regulation R.23(b). He was remanded in custody until 18.5.78 when hewas released. 25 He was not prosecuted for that offence but in the course of the inquiry evidence revealed that he had committed disciplinary offences. Two parallel proceedings were put in motion against _ ,him for disciplinary offences. After the proper procedure was • followed, he was found guilty of disciplinary offences including 30 the carrying of an automatic weapon during the days of the coup,and afine of£200.- wasimposed on him on 17.10.
3. On 18.10.79 he resumed his normal duties. The applicant has not challenged either his interdiction or his conviction or sentence. 35 By letter dated 7.3.80 addressed to the Commander of the Police he requested payment of half of his pay for the period of his interdiction, amounting to £2,087.-, as the disciplinary 875 Stylianides J. Serghlou ?. Republic

(1982)offence for whichhewasfound guiltyandfined wasunconnected with theoffence duetotheinquiryintowhichhewasinterdicted. On 12.4.80 the Commander of the Police by letter, exhibit "A", informed him that having considered the facts and circumstances of hiscasehewasofthe opinion that rightlyhewas 5 not paid as the disciplinary proceedings and the applicant's conviction were the result of his unlawful activities though he was not criminally prosecuted. The relevant regulation governing the matter is regulation 23(

1. f)of the Police Regulations, 1958-1977, which reads as 10 follows:"Any such member, who having been interdicted from duty, returns to duty shall receive, as from the date of his interdiction, the pay and allowances to which he would have been entitled by virtue of the Police (General) Regu- 15 lations, 1958-1977, or any regulations amending or substituted for the samemadeunder thePolice Law, 1958,and then in force, but for his interdiction from duty, if (
2. i)it has been decided that he shall not be charged with an offence against discipline; or 20 (
3. ii)all charges against him have been dismissed; or (iii) he has been punished by withholding, stoppage or deferment of increment, a fine not exceeding ten days' pay, severereprimand, reprimand or admonition, unless the Chief Constable directs that he shall not 25 receive the said pay and allowances". It was submitted by counsel for the applicant:(
4. a)That the applicant was not prosecuted or charged in disciplinary proceedings for the offence for which he was interdicted and, therefore, under regulation 23(
5. f)30 (i)he wasentitled toreceivethepay and allowances to which he would have been entitled but for his interdiction from duty; (
6. b)That the non-payment to him of the aforesaid amount is repugnant to Article 12.2of the Constitution in the 35 sense that he is punished twice for the same act or omission; 876 3 C.L.R. Serghiou v. Republic Stylianides J. (
7. c)That it infringes the principle of equality safeguarded by Article 28 of the Constitution; and, lastly, 5 (
8. d)That the Commander of the Police acted under a misconception of fact and in abuse of his powers as he took into consideration "unlawful activities" of the applicant for which he was not prosecuted either criminally or disciplinarily. In his oral clarification he rightly withdrew ground (
9. b)above and, therefore, I need not pronounce in abstracto. It is not the 10 habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case. (Burton v. United States, 196 U.S. 283, 295; 49 Law. ed. 482, 485; Saba and Another v. The Republic,

(1980)3 C.L.R. 149). A member of the Police on returning to duty after inter15 diction shall receive his allowance if it has been decided that he shall not be charged with an offence against discipline. The applicant was charged, found guilty and fined for a disciplinary offence. The wording of regulation 23(f)(i) does not permit the construction placed on it by counsel for the 20 applicant. The interdicted member of the Force need not be charged with the offence for the inquiry into which he was interdicted. The indefinite article "an" is used. It would have been really absurd if a member of the Police wasinterdicted and during the inquiry it was found out that he had committed 25 criminal or disciplinary offences other than the one for which the interdiction, and when charged and found guilty on these charges, to be entitled to his pay as if exonerated from any liability. The only literal and reasonable construction of the words of this Regulation is that a member of the Police is 30 entitled to his pay if no charge for any disciphnary offence against him is preferred and not when he is proceeded with any disciplinary offence other than the one for which the inquiry started. Theprinciple of equality isenunciated and safeguarded by the 35 express provision of Article 28 of the Constitution. The application of the principle of equality has been considered in Mikrommatis v. The Republic, 2 R.S.C.C. 125, where it was stated at p.131:*"Equal before the law' in paragraph 1 of Article 28 does 877 Stylianides J. Serghlou r. Republic

(1982)not convey the notion of exact arithmetical equality but it safeguards only against arbitrary differentiations and does not exclude reasonable distinctions which have to be made in view of the intrinsic nature of things". The Mikrommatis case was followed in, inter alia, Panayides v. The Republic,

(1965)3 C.L.R. 107; Loucas v. The Republic

(1965)3 C.L.R. 383; Impalex Agencies Ltd. v. The Republic,

(1970)3 C.L.R. 361; The Republic v. Nishan Arakian and Others,

(1972)3 C.L.R. 294, at p.298; Lordos & Sons v. The Water Board of Limassol,

(1978)3 C.L.R. 215. 5 10 Article 28.1 of our Constitution corresponds to Art. 3 of the Greek Constitution of 1952. The provision of Art. 28.1 ex­ cludes discrimination in State action both in the legislative and in the administrative sphere of Government. The Greek Council of State in Case No. 1273/65 stated that 15 the principle of equality entails the equal or similar treatmentof all those who are found to be in the same situation-("Ή συνταγματική αρχή της (σότητος, ύπό τήν εννοιαν της ίσης ή ομοιομόρφου μεταχειρίσεως πάντων τών Οπό τάς αύτάς συνθήκας τελούντων"). (See also Cases No. 1247/67, 2063/68 20 and 1215/69). ("The constitutional principle of equality, entails the equal or similar treatmentof all those who are found to be in the same situation"). Regulation 23 governs interdiction of all members of the 25 Police Force,their pay allowance during theinterdiction and the circumstances under which, after the interdiction, a member of the Force may receive the allowance not paid to him due to the interdiction. It is of general application to all members of the Police Force. The Police Forceis a class of its own. There is 30 no differentiation between the members of the Force. The only differentiation in regulation 23(

1. f)is between those who were either not charged or thecharge against themwas dismissed or on whom a light sentence was imposed (regulation 23(
2. f)(iii)) and those who were charged, found guilty and received a 35 form and extent of punishment more severe than the one set out in paragraph (f)(iii). This is a reasonable differentiation and it does not infringe the principle of equality. The members of each of these two broad categories receive equal treatment. 878 3 C.L.R. Serghiou v. Republic Stylianides J. This ground fails. Under the Regulations the Commander of the Police in the case of this applicant, who received a punishment of £200.fine, which exceeds 10 days of his pay, had no discretion to 5 exercise; he simply applied the Law. The letter of 12.4.80is onlyinformative irrespective of itswording. The non-payment of the applicant isby operation of lawand not byany decision, act or omission of the Commander. An administrative act in thesenseofArt. 146.1oftheConstitutionisanactoromission 10 which produces legal results and affects a person. Only such act is amenable to the jurisdiction of this Court. Even if it is argued that the Commander was empowered by Law to take any decision, which he did, and his decision is contained inthe letter of 12.4.80,1amoftheview,and sohold, 15 that such decision was neither wrong in Law nor taken after defective inquiry, as he did not fail to take into consideration anything existent or took into consideration anything nonexistent. The "unlawful activities"referred to in that letter are those for which the applicant was charged and convicted. 20 For all the aforesaid reasons this recourse fails. Though the tendency of this Court is not to award costs when a recourse fails, nevertheless I am of the opinion that it is high time for costs to beawarded in a proper caseagainst unsuccessful applicants. In this case I make no order for costs but instead 1 25 discharge the order for costs made against the Repubhc on 15.5.82. Recourse dismissed. Order for costs as above: 879