1 C.L.R. 1983 June 11 [TRIANTAFYLLIDES, P.] INTHE MATTER OF AN APPLICATION BY ANDREAS CHRISTODOULOU FOR LEAVE TO APPLY FOR AN ORDER OF PROHIBITION. {Civil Application No. 13/83). 5 Prohibition—Discipl
Article 146.1 isavailable.
Disciplinary offences—Constituting, also, criminal offences—Whether the person concerned must be first prosecuted before a Court and be dealt with disciplinarily afterwards. 10 15 This was an application for leave to apply for an order of prohibition preventing a Disciplinary Board, set up under the National Guard legislation, from dealing vcith disciplinary charges which have been preferred against the applicant in respect of events which, allegedly, constituted, also, offences contrary to the Criminal Code, Cap. 154. w Held, that disciplinary proceedings are administrative pro- 20 25 ceedings and not judicial proceedings; that in view of the exclusivity and separation of the jurisdictions under Articles 146.1 and 155.4 of the Constitution, a prerogative order under Article 155.4, such as prohibition, can only be made in relation to judicial matters and not, also, in relation to administrative matters in
Article 146.1 is available; accordingly the application must fail.
Held, further, that though it is correct that the applicant is for the time being charged with disciplinary offences arising out of circumstances in respect of which later on he may or may not be charged with criminal offences, there is not any provision in the Constitution, or in any statute, or any general principle of law, &37 In re Andreas Christodoulou
(1983)which requires that in a situation such as this the person con cernedmustbefirst prosecuted before a Courtandthathecan be dealt with disciplinarily only afterwards. Application dismissed. Cases referred to: 5 Ramadanv. The Electricity Authority, 1 R.S.C.C. 49 at pp. 53, 54; In re Frangos
(1981)1 C.L.R. 691 at pp. 695, 696; In re Kalathas
(1982)1 C.L.R.
- Application. 10 Application for leave to apply for an order of prohibition preventing a Disciplinary Board, set up under the National Guard legislation, from dealing with disciplinary charges pre ferred against the applicant in respect of events which, allegedly, constitute oflfences contrary to the Criminal Code, Cap.
- 15 K. Talarides, for the applicant. K. Michaelides with D. Papadopoulou(Mrs.), for the Re public. Cur. adv. vult. TRIANTAFYXUDES P. read the following judgment. The 20 applicant seeks leave to apply for an order of prohibition pre venting a Disciplinary Board, set up under the NationalGuard legislation, from dealing with disciplinary charges which have been preferred against the applicant in respect of events which, allegedly, constitute, also, offences contrary to the Criminal 25 Code, Cap.
- Under the National Guard Disciplinary Regulations (see Regulations No. 554, Third Supplement to the Official Gazette of 3.12.64, as amended by Regulations No. 240, Third Supple ment, Part L, to theOfficial Gazetteof 24.11.78) the infringement 30 by a member of the NationalGuardof any "law" inforce at the material time - and the Criminal Code in such a "law" - may be treated as constituting a disciplinary offence and this is what, apparently, has happened in the present instance. Λ9 1 C.L.R. In re Andreas Chrlslodoulou Triantafyllides P . It is correct that the applicant is for the time being charged withdisciplinary oflfences arising out ofcircumstances inrespect of which later on he may or may not be charged with criminal offences. There is not, however, any provision in our Con5 stitution,orinanystatute,oranygeneralprinciple oflaw,which requires that in a situation such as this the person concerned must befirst prosecuted before a Court and thathecan bedealt with disciplinarily only afterwards. It is well settled that disciplinary proceedings are administra10 tive proceeding and not judicial proceedings; and in view of the exclusivity and separation of thejurisdictions under Articles 146.1and 155.4 of the Constitution it has beenestablished for a long time by our case-law that a prerogative order under Article 155.4,such as prohibition, can only bemade in relation 15 to judicial matters and not, also, in relation to administrative matters in
Article 146.1 is available. The said case-law, which started as far back as Ramadan v. The
Electricity Authority,1R.S.C.C. 49, 53,54,has been reaf20 firmed onmany occasionsandfor thepurposes ofthisjudgment it suffices to mention that it was referred to rather recently in In re Frangos,
(1981)1C.L.R. 691,695, 696 (and, on appeal,
(1983)1C.L.R. 256, as well as in In re Kalathas,
(1982)1 C.L.R. 835. 25 Under the jurisdiction conferred on this Court by means of Article 155.4oftheConstitusion it isnot possible toprevent,by anorderofprohibition,theusurpation ofjudicial functions bya disciplinary organ, even assuming as correct the contention of counsel for the applicant -with which I do not agree - that the 30 Disciplinary Board concerned willbeusurpingjudicial functions by dealing with the disciplinary charges against the applicant. This Court can prevent, by an order of prohibition, under Article 155.4,onlyajudicialorgan,andnot,also;an administrative disciplinary organ, from exceeding its powers by way of 35 usurpation of powers or otherwise. If the Disciplinary Board exceeds in the present instance its powers the proper remedy exists only under Article 146.1 of the Constitution, to the exclusion of any other remedy, suchas those under Article 155.4; and, inthisrespect, there should not belost sight ofthat oncea 40 recourse is filed under Article 146.1 there arises the possibility 53? Triantafyllides P. In re Andreas Chrtstodoulou
(1983)to apply, in a proper case, for interim relief in the form of a provisional order under rule 13 of the Supreme Constitutional Court Rules of Court. In the light of all the foregoing this application for leave to apply for an order ofprohibition has to be refused as nouseful 5 purpose can be served by granting such leave sincein anyevent this Court does not possess jurisdiction to issue an order of prohibition in the present instance. Consequently, this application is dismissed. Applicationdismissed. 10 540