clr/1982/1982_3_977.pdf

(2)(c) of the Police (General) Regulations, 1958—Entails an arbitrary differentiation between policemen and firemen as regards their weekly hours of duty. The applicant, a member of the Fire Service, applied to the Chief of Police to be paid for his overtime work from 1972 onwards because by virtue of regulation 15

(2)(a)* of the Police (General) Regulations, 1958, the normal weekly period of duty was 48 hours whereas he worked for 56 hours weekly. In reply the Chief of Police rejected applicant's claim on the ground that although regulation 15

(2){a), on which his claim was based specified a48hoursweekly service for the members of the Force, Regulation 15 is quoted at pp. 982-983 post. 977 Taroattiris v. Republic

(1982)nevertheless by virtue of regulation 15

(2)(c) the members of the Fire Service have beenexempted asemployed in special duties. Hence this recourse in which the main question that fell for consideration was whether the Chief of Police was empowered by Police Force Ordtr No. 30 to exempt specially the ordinary 5 duties of the Fire Service as a whole from the provisions of regulation 15

(2)(a) and bring them within the provisions of regulation 15

(2)(c)(ii) as regards the normal weekly period of duty. Force order No. 30 was issued before the coming into force of the Police Law, 1958 and the Regulations made 10 thereunder. Held,

(1)That after the enactment of the Police Law, 1958, (Law 5/1958),nowCap.285, afireman isconsidered asamember of the Police Force (see definition of "Force" in section 2 of the Law); that since the provisions of Force Order No. 30were 15 not preserved by the 1958 Regulations, made under Law 5/58, once thisLawwasenacted(whichcontained provisionsregarding the Fire Service) not only any previously existing Orders but even any previous Laws regarding the matter, do not apply, unless specifically preserved by that Law and if the provisions 20 ofthe said Orderwereintendedtocontinuetoapply,they should have been embodied in the Regulations; that since after the making of the Police (General) Regulations, 1958 no Force or other Order was madeunder regulation 15

(2)(c)(ii) exempting the members of the Fire Service as a whole from theprovisions 25 of regulation 15

(2)(a) and 15

(3);that sinceno other Regulations were made specifically referring to the Police Fire Service the only Regulations applicable to them are the Police (General) Regulations, 1958which apply to the "Force" in general, under which definition they are classified; that since the hours of 30 duty of the members of the Force are defined under regulation 15 of the Police (General) Regulations 1958, the applicants are entitled to the benefits of regulation 15

(2)(a) concerning hours of duty and regulation 15

(3)concerning overtime allowance or time off, of the Police (General) Regulations 35 1958; accordingly the decision of the Chief of the Police rejecting applicant's claim is null and void as being contrary to the Police Law, 1958 and the Police (General) Regulations made thereunder (reasoning in Superman andOther? v. Republic

(1981)3 C.L.R. 572 adopted). 40 Held, further, that, after the coming into force of the Constitution regulation 15

(2)(c) cannot be interpreted as giving to 978 3 C.L.R. 5 10 15 20 25 30 Tamattiris v. Republic the Chief of Police the power to issue an order exempting the Fire Service as a whole from the piovisions of regulations I5

(2)(a) (see Article 188.1 of the Constitution); that if it is interpreted in a way giving to the Chief of Police such power then certainly will offend the principle of equality safeguarded by Article 28.1 of the Constitution which provides, that all persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatment thereby; that "equality before the law" in paragraph 1of Aitide 28 does not convey the notion of exact arithmetical equality but it safeguards only against arbitrary differentiation and does not exclude reasonable distinctions which have to be made in view of the intrinsic nature of things; that, moreover, the ptinciple of "equality entails the equal or similar tieatment of all those who are found to be in the same situation"; and that in the present case it cannot be said that after the enactment of Law 5/1958, now Cap. 285,there is no arbitrary diffeientiation between policemen and firemen as regards their weekly houis of duty or that policemen and firemen aie not found to be in the same situation. Sub judice decision annulled. Cases referred to: Superman and Others v. Republic

(1981)3 C.L.R. 572; Republic v. Arakian and Others

(1972)3 C.L.R. 294; Mikrommatis v. Republic, 2 R.S.C.C. 125 at p. 131; Decision of the Greek Council of State No. 1273 of

1. Recourse. Recourse against the decision of the respondents whereby it was decided that the applicant was not entitled to the payment of his overtime work. S. Spyridakis, for the applicant. M. Kyprianou, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. 35 40 MALACHTOS J., read the following judgment. The applicant in this recourse, which is made under Article 146.2 of the Constitution, claims, as stated therein, the following remedies:
2. A declaration of the court that the decision of the Chief of Police, respondent 3 in this recourse, contained in his letter dated 29th December, 1978, to the effect that the applicant is 979 Malacbtos J. Tamattfris r. Republic

(1982)not entitled to payment of his overtime work, is null and void and of no legal effect whatsoever.

1. A declaration of the court that the dedsion of the respondent 3 that the applicant is employed in special duties or the decision in the case of the applicant should be applied an older decision as regards the firemen and due to this he is not entitled to overtime allowance, is null and void and of no legal effect whatsoever. 5
2. A declaration of the court that regulation 15

(2)(a) of the Police (General) Regulations 1958, is applicable in the case of 10 the applicant; and 4. A declaration of the court that regulation 15

(2)(c) of the said Regulations is unconstitutional. . The facts of the case are the following: The applicant, who is a fireman under No. P.C.12, on the 15 11th December, 1978, through his advocate, addressed exhibit 1 to the Chief of Police, respondent 3, which reads: "I havebeeninstructed bymyclient Mr. Sawas Tamattiris to refer to his serviceas a fireman and to callupon you to make the necessary arrangements for payment to him for 20 his overtime work as compensation or emoluments which he is entitled to as from 1972till today sinceby virtue of Regulation 15

(2)(a) of the Police (General) Regulations 1958,thenormal weeklyperiod ofdutyis48hours,whereas for thefiremen, asmyclient,theperiod ofdutyis56hours, 25 something which exceeds the basic hours of duty provided by law. The application for payment to him of allowance equal to the hourly rate of his pay is provided by Regulation 15

(3)(b) of the above Regulations. 30 The claim of my client is based on part 8 of the Police Law,Cap.285,byvirtueofwhichthefiremen belongtothe Police Force." By letter dated 29th December, 1978, exhibit 2, the Chief of Police gave the following reply: "I received your letter dated 11th December, 1978,regard980 35 3 CX.R. 5 Tamattiris r. Republic Malachtos J. ing the claim of the fireman Sawas Tamattiris, P.C.12, for payment to him of overtime, and I inform you that Regulation 15

(2)(

1. a)of the Police (General) Regulations, on which you base the claim of your client, although specifying a 48 hours weekly service for the members of the Force, nevertheless, by virtue of sub-paragraph (
2. c)of thesame Regulations the members of the Fire Service have a long time ago been exempted as employed in special duties. 10 2. Therefore, the claim of your client is not possible to be satisfied since such exemption is still in force for all the firemen, who,due to the nature of their duties and accordingtothetermsoftheirservice,theywereworkingfor more hours compared with the policemen. 15 However, in any case, I inform you that the subject of the hours of duty of the firemen is under consideration by the Government." The applicant obviously being dissatisfied by the above decision of the Chief of Police filed on the 9th March, 1979,the 20 present recourse. The grounds of law on which the recourse is based as they appear in the body of the recourse are these: 1. According to regulation 15

(2)(a) of the Police (General) Regulations, 1958,thenormal weeklyperiod ofduty is48hours. 25 2. Regulation 15

(3)(b) of the above Regulations provides for overtime allowance equal to the hourly rate of pay. -

1. The establishment of the Police Fire Service is provided by Part 8 of the Police Law, Cap. 285,and the firemen belong to the Police Force. 30
2. Theinclusion ofthe applicant asafireman tothe provisions oftheaboveregulation 15

(2)(c)isvoid orillegalsincetheservice ofafireman cannot beconsidered asspecialdutiesin viewofthe fact that intheir casethereisprovision in a separate part of the Police Law, Part

1. 35
2. TheChief of Policecannot apply an older null and void or unconstitutional decision as regards the applicant. 981 Malachtos J. Tamattiris v. Republic

(1982)6. Regulation 15

(2)(c) offends Article 28 of the Constitution. The case of the respondents on the other hand, as it appears in the opposition, is that the provisions of regulation 15

(2)(c) of the Police (General) Regulations 1958 are rightly applied for the members of the Police Fire Service and so the provisions 5 of regulations 15

(2)(a) and 15

(3)(a) are inapplicable in the present case. Consequently, regulation 15

(2)(c) does not offend Article 28 of the Constitution. Regulation 15 of the Police (General) Regulations 1958, with which we are concerned, reads as follows: 10 "15. Hours of Duty

(1)Every member of the Force shall carry out all lawful orders and shall at all times punctually and promptly perform all appointed duties and attend to all matters within the scope of his office as a police officer. 15

(2)Normal period of duty (

1. a)The normal daily period of duty(including the period for refreshment referred to in sub-paragraph (
2. b)of this paragraph) of a member of the Force other than special constable shall be eight hours and the normal 20 weekly period forty-eight hours, and in addition any time occupied in reporting at the appointed place for duty before the tour of duty begins. (
3. b)Where the norrhal period of duty isperformed in one tour of duty, an interval of 45 minutes shall normally 25 be allowed. (
4. c)This regulation shall not apply to a member of the Force who is (
5. i)above the rank of Chief Inspector; or (
6. ii)employed in duties which have been specially 30 exempted by the Chief of Police. (
7. d)Notwithstandinganything in thisregulation contained every member of the Force shall, if properly called upon, or if he perceives it his duty to do so,be required to perform any duty appertaining to his office at any 35 982 3 C.L.R. Tamattiris τ. Republic Malachtos J- - time and, except when on leave, shall perform not less than forty-eight hours* duty in a week. Gazetted Officers shall have a twenty-four hour responsibility.

(3)Extra duty 5 10 15 (a) Subject to the provisions of this regulation, where a member of the Force to whom paragraph

(2)above applies, other than a member who is paid a detective allowance, remains on duty after his tour of duty ends or is recalled to duty between two tours of duty, he shall be granted as soon as exigencies of duty in the opinion of the Chief of Police permit, an equal period of time off. A strict record of time off granted must be kept. (b) If, in respect of overtime, time off is not granted within a period not exceeding threemonths the member, if he is below the rank of sub-inspector shall be granted an allowance equal to the hourly rate of his pay. (c) (d)

(4)•

(5)20 25 30 " It should be noted here that since the enactment of the Police Law of 1958 (Law 5/1958),now Cap. 285, a fireman is considered as a member of the Police Force. This appears in the definition section of the Law, section 2, which provides that "'Force' means the Cyprus Police Force and includes the Fire Service, the Tactical Reserve, the Auxiliary Police Force, Special Constables and Women Police". The main question that falls for consideration in this recourse is whether the Chief of Police is empowered by a Police Order to exempt specially the ordinary duties of the Fire Service as a whole from the provisions of regulation 15(a)(b) and bring them within the provisions of regulation 15

(2)(c)(ii) as regards the normal weekly period of duty. Counsel for applicant in arguing his case before the court submitted that since the enactment of Law 5 of 1958 which 983 Malachtos J. Tamattiris v. Republic

(1982)placed the firemen on the same footing with the policemen, both the law and the regulations made thereunder should be applied without discrimination by the Chief of Police. Regulation 15

(2)(c)(ii) does not give power to the Chief of Police to exempt the Fire Service. If the legislator intended to exempt 5 the Fire Service would do so as in the case of Special Constables in regulation 15

(2)(a). But even so, this could only be done by the Council of Ministers by amending regulation 15

(2)(a). On the other hand, counsel for the respondents submitied 10 that the members of the Fire Service fall within the category of those who were employed in duties specially exempted by the Chief of Police under regulation 15

(2)(c)(ii) and so regulation 15

(2)(a), which provides that the normal weekly period of duty of a member of the Force should be 48 hours, does not apply in 15 the case of members of the Fire Service. He further submitted that under regulation 47 of the Police (General) Regulations, 1958, it is provided that as part of the Force Orders the Chief of Police may from time to time issue standing Orders to the Force which shall becomplied with and observed byallmembers 20 of the Force. On the basis of Force Standing Order 30, the Fire Service was exempted having its own weeklyperiod of duty of 84 hours when the members of the Police Force were having as weekly period of duty 56 hours. He also submitted that each member of the Fire Service upon his permanent establish- 25 ment, automatically accepts as binding all the provisions of Order 30 including,the hours of duty provided therein. According to this Order by which a Police Fire Brigade was first established in Nicosia, the provisions of which were in force before the establishment of the Republic, the weekly 30 period of duty of the firemen was 84 hours. This situation existed up to 1968 when the Government decided to reduce the weekly period of duty of the Fire Service to 56 hours and is still in force up to the present day. Counsel for the respondent finally submitted that the decision 35 of the Chief of Police complained of, isvalid and that regulation 15

(2)(c) does not offend Article 28 or any other Article of the Constitution. There is no doubt, from the wording of the Force Order 30 that it was issued before the coming into force of the Police 40 984 3 C.L.R. Tamattiris τ. Republic Malachtos J. Law 1958 and the Regulations made thereunder by virtue of section 10

(1)of the said Law. 5 10 15 20 25 30 30 40 The question as to the validity of Force Order 30, as well as the^application of regulation 15, have been decided by a Judge of this Court in the case of Takis Superman and Others v. The Republic,

(1981)3 C.L.R.572, where it was held that: "Since the provisions of Force Order No. 30 were not preserved by the 1958 Regulations, made under Law 5/58, once this Law was enacted (which contained provisions regarding the Fire Service) not only any previously existing Orders but even any previous Laws regarding the matter, do not apply, unless specifically preserved by that Law and if the provisions of the said Order were intended to con­ tinue to apply, they should have been embodied in the Regulations; that, moreover, Force Order No. 30 is not valid as it cannot be more than a circular which was not embodied in the Regulations made under section 10

(1)of the Law and any Circular or Order outside the provisions of the Regulations, cannot override the provisions of the Regulations (see Arsalis v. TheRepublic,

(1976)3C.L.R. 255 at p,268 where it was held that 'a circular is an inferior text to that of a regulation and on the basis of the principle of hierarchy of texts, the regulation prevails'). Since after the making of the Police (General) Regulations, 1958 no Force or other Order was made under regulation 15

(2)(c)(ii) exempting the members of the Fire Service as a whole from the provisions of regulation 15

(2)(a) and 15

(3); that since no other Regulations were made specifically referring to the Police Fire Service the only Regulations applicable to them are the Police (Ge­ neral) Regulations, 1958 which apply to the 'Force' in general, under which definition they are classified; that since the hours of duty of the members of the Force are defined under regulation 15 of the Police (General) Regulations 1958, the applicants are entitled to the benefits of regulation I5

(2)(a)concerning hours of duty and regulation 15

(3)concerning overtime allowance or time off, of the Police (General) Regulations 1958; accordingly the de­ cisions of the Chief of the Police communicated to the applicants by letters of the Chief Fire Officer dated 27.10. 985 Mnlacbtos J. Tamattiris v. Republic

(1982)1979 and 5.11.1979 are null and void as being contrary to the Police Laws 5/58 (Cap.285)—16/79 and the Police (General) Regulations made thereunder." I must say that I fully adopt the reasons given and the conclusions reached by the trial Judge in the said case. 5 Before concluding my judgment I shall proceed further and say that after the coming into force of out Constitution regulation 15

(2)(c) cannot be interpreted as giving to the Chief ofPolicethepower toissuean orderexemptingthe FireService as a whole from the provisions ofregulation 15

(2)(a). 10 Article 188.1 of the Constitution provides that "Subject tothe provisions ofthis Constitution and tothefollowing provisions of this Article, all lawsin force on the date of thecoming into operation ofthisConstitution shall,untilamended,whether bywayofvariation,addition orrepeal,byanylaworcommunal 15 law, as the case may be, made under this Constitution, continue in force on or after that date,and shall, asfrom that date be construed and applied with such modification as may be necessary to bringthem intoconformity withthis Constitution". It follows that if we interpret regulation 15

(2)(c) in the way 20 counsel for the respondents submitted, then certainly will offend the principle of equality safeguarded by Article 28.1 of the Constitution which provides, that all persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatment thereby. In the case 25 of The Republic of Cyprus v. Nishan ArakianandOthers

(1972)3C.L.R. 294the Full BenchofthisCourt, adopted the following passage from the case of Mikrommatis v. TheRepublic, 2R.S. C.C.I25 at page 131: "'Equality before the Law'in paragraph 1of Article 28does not convey the notion of exact arithmetical 30 equality but it safeguards only against arbitrary differentiation and does not exclude reasonable distinctions which have to be made in view of the intrinsic nature of things." The Full Bench also adopted what is stated in Case No.1273 /65 of the Greek Council of State, that "The principle of equa- 35 lity entails the equal or similar treatment of all those who are found to be in the same situation". 986 | 3 C.L.R. Tamattiris v. Republic Malachtos J. In the present case it cannot be said that after the enactment ofLaw 5/1958,nowCap.285,thereisnoarbitrary differentiation between policemen and firemen as regardstheir weeklyhoursof duty or that policemen and firemen are not found to be in the 5 same situation. Fortheabovereasonsthis recourse succeedsand,consequently,the decision of the Chief of Policecomplained of isdeclared null and void. The respondents are adjudged to pay £25.-against the cost 10 of the applicant. Subjudice decision annulled. Order for costsas above. 987