clr/1982/1982_3_905.pdf

(3)of Law 33/67 because the applicant was engaged in business Section 4 is quoted at pp. 908-909 post. 905 Louca v. President of the Republic

(1982)ventures, contrary to section 8 of Law 33/67 and it was in the Public interest to terminate the services of the applicant on this ground. Following the conclusion of the hearing the Court teserved its judgment but as , inter alia: (a) TherewasnothingintherelevantArticlesoftheConsti- 5 tution which empoweitd the President of the Republic toterminatetheappointment ofamember ofthePublic Service Commission in the public inkiest, as it is laid down in section 4

(3)of Law 33/67. (b) It was obvious that the powei of the Piesident of the 10 Republic under section 4

(3)related to mtmbers of the Public Service Commission which was cieated by Law 33/67. (c) Therecould benodoubt thatwhentheapplicant accepted reappointment under Law 33/67 as a member of 15 such Public Service Commission the provisions of section 4

(3)became applicable to him even though he had initially been appointed as a member of the Public Service Commission which was set up under Aiticle 124 of the Constitution. 20 (d) Ntither, howevei, the Pievident of the Republic nor the Council of Ministers aie empowtitd to terminate theservices ofa member of thePublicSeiviceCommission on 'he ground of misconduct contiaiy to the aid iection 8, wheieas in relation to conduct contrary 25 to section 13

(1)of Law 33/67 tht President of the Republic is expressly empowered to terminate the appointment of a member of the Commission. (e) Fiom the very much limited inscope special provision in section 13

(1)of Law 33/67,there,exists no provision 30 of a general nature as regards the termination of the strvices, on the ground of misconduct, of a member of the Public Service Commission set up under it. (f) WithregardtothePublicServiceCommissionenvisaged bj Aitich' 124 of the Constitution a mtmbe; thereof 35 could beremovedfrom offic. on groundsof misconduct (sec Articles 124.5and 153.7 and

(8)of the Constitu- 906 3 C.L.R. 5 Louca v. President of the Republic tion) the Court diiccttd reopening of the hearing of the recouise with a view to giving to counsel for the parties ορροίtunity to advance fuither arguments on issues lelating to (a)-<f) above (pp.912-913 post). Order accordingly. Cases reftned to: Kouptpides v. The Republic ;1980) 3 C.L.R. 258 at p.

1. Recourse. Recourse against the decisions of the respondent President 10 of the Republic whereby applicant's services were terminated and the interested parties were appointed as members of the Public Service Commission. 15 E. Efstathiou with A. Gavriel (Miss), for the applicant. CI. Antoniades with R. Gavrielides,Senior Counsel of the Republic, for the respondent. X. Xenopoulos, for the interested parties. Cur. adv. vult. TRIANTAFYLLIDES P. read the following judgment. In this case, which was filed on January 20, 1982, the applicant, by 20 the motion for relief, as it was amended on February 25, 1982, challenges, in effect, the decisions of the respondent President of the Republic to terminate his services, as from January 18, 1982, as a member of the Public Service Commission and, also, to appoint as members of the said Commission Yiannis Serghides 25 and Christakis HadjiProdromou, who are interested parties in the present proceedings. The applicant was first appointed, under Article 124 of the Constitution, as a-member of the Public Service Commission on November 4, 1960, and he continued to be a member of 30 the Commission until his services were terminated as aforesaid. He was last reappointed, under section 4 of the Public Service Law, 1967 (Law 33/67), on June 20, 1979, for the period commencing on July 1, 1979 and ending on June 30,
2. It is common ground that the President of the Republic 35 terminated the services of the applicant as from January 18, 1982, by a letter dated January 15,
3. The text of the said letter is as follows: "Zees πληροφορώμέτήυ παρούσα επιστολή μου ότι,δυνάμει 907 Triantafyllides P. Louca v. President of the Republic

(1982)τοΰ άρθρου 4, εδάφιο 3, τοΰ περί Δημοσίας 'Υπηρεσίας Νόμου τοΰ 1967, τερματίζω το διορισμό σας ώς μέλους της 'Επιτροπής Δημοσίας Υπηρεσίας άπό της 18ης Ιανουαρίου

1. Μέ την ευκαιρία αύτη εκφράζω ευχαριστίες γιά τίς ύπηρεσίες πού προσφέρατε". 5 ("Ι inform you by this letter that, by virtue of section 4, subsection 3, of the Public Service Law of 1967,1 terminate your appointment as a member of the Public Service Commission as from January 18,
2. 10 I take occasion to express thanks for the services which you have rendered"). The termination of the services of the applicant was published (see No. 87) in the Official Gazette of the Republic of January 22,
3. 15 On January 15, 1982, the President of the Republic appointed as members of the Commission the two interested parties and their appointments were published (see No. 86) in the Official Gazette of January 22,
4. It is useful to set out, at this stage, the relevant provisions of Law 33/67, which are subsections

(1),

(2)and

(3)of section 4 and section 8: 20 "4.-(l) Συνίσταται Επιτροπή Δημοσίας Υπηρεσίας συνι­ σταμένη έξ ενός Προέδρου και"τεσσάρων έτερων μελών διο­ ριζομένων υπό τοΰ Προέδρου της Δημοκρατίας. 25

(2)Ή θητεία της Επιτροπής είναι εξαετής.

(3)Ό Πρόεδρος της Δημοκρατίας δύναται,ανεξαρτήτως της διατάξεως τοΰ εδαφίου

(1)τοΰ άρθρου 13, καθ'οϊονδήποτε χρόνον νά τερματίση τον διορισμόν τοΰ Προέδρου ή οίουδήποτε έτερου μέλους της 'Επιτροπής, Ιάν Θεωρη δτι τοΰτο είναι προς τό δημόσιον συμφέρον: 30 Νοείται οτι πανμέλοςτης 'Επιτροπήςδύναταινάύποβάλη οποτεδήποτε ϊδιογράφως παραίτησιν άπευθυνομένην προς τόν Πρόεδρον της Δημοκρατίας". ("4.-

(1)There shall be a Public Service Commission consist908 35 3 C.L.R. Louca ν. President of the Republic Triantafyllides P. ing of a Chairman and four other members appointed by the President of the Republic.

(2)The term of office of the Commission shall be six years. 5

(3)The President of the Republic may, notwithstanding the provision of sub-section

(1)of section 13, at any time terminate the appointment of the Chairman or of any other member of the Commission if he considers it to t o in the public interest: 10 Provided that any member of the Commission may at any time resign his office by writing under his hand addressed to the President of the Republic"). 15 20 25 30 35 "

1. Ό Πρόεδρος καΐ τά λοιπά μέλη της 'Επιτροπής δέν επιτρέπεται νάάσκώσιν οίονδήποτεεπάγγελμα ήεπιτήδευμα ή νά άσχολώνται είς οιανδήποτε έμπορικήν, βιομηχανικήν ή γεωργικήν έπιχείρησιν ή νά δέχωνται οίανδήποτε αλλην έττΐ πληρωμή άπασχόλησιν έκτος των καθηκόντων αυτών, είμή μόνον τή αδεία τοΰ Υπουργικού Συμβουλίου". ("
2. Except with the consent of the Council of Ministers, the Chairman and the other members of the Commission shall not engage in any trade, profession or business or employ themselves in any commercial, industrial or agricultural undertaking, nor shall they accept on payment any other employment or engagement outside their duties"). Section 13

(1)of Law 33/67, which is referred to in section 4

(3)of the said Law, reads as follows: "13.-

(1)"Οταν ό Πρόεδρος ή έτερον μέλος τής 'Επιτροπής παύση νά κατέχη τά δια την Θέσιν αύτοΰ απαιτούμενα προσόντα ή άπουσιάζη αδικαιολογήτως έκ τριών συνεχών συνεδριάσεων τής 'Επιτροπής, ό Πρόεδρος τής Δημοκρατίας τερματίζει τόν διορισμόν αύτοΰ καΐ προβαίνει ε!ς νέον διορισμόν δια τό ύπόλοιπον χρονικόν διάστημα της θητείας τής Επιτροπής". ("13.-

(1)Where the Chairman or any other member of the Commission becomes disqualified from holding office or is unjustifiably absent from three consecutive meetings of the Commission, the President of the Republic shall 909 Triantafyllides P. Louca v. President of the Republic

(1982)terminate his appointment and proceed to make a new appointment for the unexpired period of the term of office of the Commission"). Accordingto thefacts stated intheApplication in thepresent recourse, which were verified as true by means of an affidavit 5 of the applicant dated January 20, 1982,theapplicant was summoned to a meeting with the President of the Republic on January 15, 1982, at which the President informed him that it had been decided to reconstitute thePublic ServiceCommission and asked the applicant to submit his resignation. When the 10 applicant refused to do so the President of the Republic told him that, though he had nothing against him, he would have to terminate his appointment; and thanked himfor hisservices, Later, on that same day, theapplicant received the aforequoted letter of termination of his services. 15 In the Opposition the above version oftheapplicant isdenied and it is stated that the President of the Republic, having been informed that the applicant was engaged in business ventures contrary to section 8 of Law 33/67 and considering that it was in the public interest to terminate, on this ground, the services 20 of theapplicant asamemberof thePublicServiceCommission, called the applicant, on January 15, 1982, to his office and informed him accordingly. In respect of the version which is set out, as above, in the Opposition no evidence was adduced by way of an affidavit 25 or orally. It has been contended by counsel for the respondent that the termination, as aforesaid, of the services of the applicant by the President of the Republic was not amenable within the judicial control exercised under Article 146 of the 30 Constitution, because it is an "act of Government". It is to be noted that the power to appoint a member of the Public Service Commission was vested in the President and the Vice-President of the Republic by Article 47(f) of the Constitution in respect of the Public Service Commission 35 evisaged by Article 124of the Constitution, which is no longer functioning, and such power is now vested in the Prtsident of the Republic under section 4

(1)of Law 33/67 in respect of the 910 3 C.L.R. 5 Louca v. President of the Republic Triantafyllides J. Public Service Commission which was set up under this Law and which, as already decided in the past by this Court, is not the same organ as that which is envisaged by Article 124 of the Constitution (see, inter alia, Koupepidesv. The Republic,

(1980)3 C.L.R. 258, 263). As regards the Public Service Commission, which was envisaged by Article 124 of the Constitution, the following provision was made by paragraph 5 of the said Article: 10 "

1. Τά μέλη τής επιτροπής δέν δύνανται νά άπολυθώσιν, είμή ύφ* σύς ορούςκαί καθ'δν τράπον οί δικασταΐ τοϋ 'Ανω­ τάτου Δικαστηρίου". ("
2. A member of the Commission shall not be removed from office except onthe like grounds and in thelike manner as a judge of the High Court"). 15 20 In my view the effect of the said paragraph 5 was that it rendered applicable, in relation to the termination of the services of members of the Public Service Commission appointed under Article 124 of the Constitution, the relevant provisions of para­ graphs 7 and 8 of Article 153 of the Constitution, under which misconduct is one of the grounds for such termination. 25 There is nothing in the relevant Articles of the Constitution which empowers the President of the Republic to terminate the appointment of a member of the Public Service Commission in the public interest, as it is laid down in section 4

(3)of Law 33/67. 30 35 It is obvious that the aforesaid power of the President of the Republic under section 4

(3), above, relates to members of the Public Service Commission which was created by Law 33/67; and there can be no doubt that when the applicant accepted reappointment under Law 33/67 as a member of such Public Service Commission the provisions of section 4

(3)became applicable to him even though he had initially been appointed as a member of the Public Service Commission which was set up under Article 124 of the Constitution. Had it not been for the fact that there was put forward in the Opposition the version that the services of the applicant were terminated due to contraventions by him of section 8 911 Triantafyllides P. Louca v. President of the Republic

(1982)of Law 33/67,1would havehad todecide,first,asa preliminary issue of jurisdiction, whether or not the termination of his services in the public interest, under section 4

(3)of Law 33/67, is an "act of Government" outside the ambit of the revisional jurisdiction created by Article 146 of the Constitution. 5 In view, however, of the said version in the Opposition, I am faced with the situation that the services of the applicant, as a member of the Public Service Commission which was set up under Law 33/67, were terminated under section 4

(3)of such Law because of misconduct consisting of alleged breaches 10 by him of the provisions of section 8 of thu same Law. It has to be noted that the organ empowered, under section 8 of Law 33/67, to permit the applicant to engage in business ventures is not the President of the Republic but the Council of Ministers; neither, however, the President of the Republic 15 nor the Council of Ministers are empowered to terminate the services of a member of the Public Service Commission on the ground of misconduct contrary to the said section 8, whereas in relation to conduct contrary to section 13

(1)of Law 33/67 the President of the Republic is expressly empowered to termi- 20 nate the appointment of a member of the Commission. It is to be observed, further, that, apart from the very much limited in scope special provision in section 13

(1)of Law33/67, there exists no provision of a general nature as regards the termination of the services, on the ground of misconduct, of 25 a member of the Public Service Commission set up under it. Having considered carefully all the material at present before me I find that in fairness to them I should give to counsel for the parties the opportunity to advance further arguments on the following issues:

(1)Since no specific provision is made in Law 33/67 about the termination oftheservicesofamemberofthe PublicService Commission on the ground of misconduct, such as a contravention of section 8 of Law 33/67, could it have been the intention of the Legislature that in this respect paragraph 5 35 ofArticle 124oftheConstitution wastocontinuetobeoperative or issuchmisconduct to betreated asamatter ofpublicinterest in the sense of section 4

(3)of Law 33/67. 912 30 3 C.L.R. Louca v. President of tbe Republic Triantafyllides P.

(2)Assuming that paragraph 5 of Article 124 of the Constitution has, in effect, been substituted by section 4

(3)of Law33/67,wassuchacoursejustifiable on thebasisofthe "law of necessity" which led to the setting up, under Law 33/67, 5 of a new Public Service Commission.

(3)Assuming that a contravention of section 8 of Law 33/67 comes within the notion of public interest in section 4

(3)of thesameLaw,cantheservicesofamemberofthePublicService Commission be terminated by the President of the Republic 10 for such a contravention without the member concerned— in this instance the applicant—being given, in accordance with the rules of natural justice, an opportunity to refute the accusations against him in this connection.

(4)Is the termination of the services of a member of the 15 Public Service Commission under section 4

(3)of Law 33/67 for a contravention of section 8 of the same Law an "act of Government" outside the ambit of the jurisdiction of Article 146 of the Constitution, even assuming that otherwise the termination of the services of a member of the Public Service 20 Commission, under the said section 4

(3), in the public interest, for a reason other than contravention of section 8, could be found to be an "act of Government".

(5)Assumingthat Ifindthat theservicesoftheapplicant were wrongly terminated do I have to terminate the appointments 25 of both interested parties or of oneof them, and in such a case of whom. In the light of the foregoing I reopen the hearing of this case accordingly. Order as above. 913