3 C.L.R. 1982 November 19 [HADJIANASTASSIOU, J.] IN THE MATTER OFARTICLE 146,OFTHE CONSTITUTION LOUCAS HAVIARAS, Applicant. v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR AND DEFENCE, Respondent. (Cases Nos.50/82 and105/82). 5 10 15 20 Naturaljustice—Rulesof—Right to be heard—Police Force—Promotions—Applicant notpromoted though suitableforpromotion becauseof information regarding his activities during 1974— No disciplinary proceedings ever instituted against him—And applicant notgiven the right tobeheard—Saidinformation ought not tobetakeninto accountfor thepurpose of thepromotions— Aboveruleofnaturaljusticeviolated—Subjudicedecisionannulled —Requirements of suchrule not satisfiedthrough explanations contained ina letterof applicant tothelatePresident of the Republic becauseaccuseddid not have in mind the accusations against him when sending the letter. The applicant, a Police Superintendent lA' was a candidate for promotion to the post of Chief Superintendent. Upon a iecourse by the applicant the Supreme Couit annulled the promotionsoftheinterestedpartiestotheabovepost; and followingthisannulmenttherespondentproceededtoreviewthewhole position and decided again to promote the interested parties in preference and instead of the applicant. Hence this recourse by the applicant. The sub judice decision of the respondent Minister reads as follows: "I have re-examined the question of the promotion of Mr. Loucas Haviaras after the decision of the Supreme Court in Case No. 458/80. Having in mind the acts and 159 Haviaras v. Republic
(1983)deeds for theperiodof 1974,as well as, hisexplanations as a result of those activities Mr. Haviaras is not acceptable by the majority ofthe members of the policeforce with the result that his authority within the police is limited, a fact which influenced-his productivity in such a degree as to 5 make it impossible to be promoted to that very important post of Chief Superintendent, and as a lesult of that his promotion isnot warranted in the particular circumstances. 1have ieviev.ed thecases of Messrs. Charalambos Spyrou and Stelios Menelaou of whom the promotions were an- 10 nulled by the decision of the Supreme Court in Case No. 458/
- In view of my decision as regards Mr. Haviaras I have decided to promote Mr. Spyrou and Mi. Menelaou as from 1st October, 1980, and also Mr. Votsis as from 1st November, 1980". 15 Applicant was more senior than the interested parties and with better qualifications; and he was also recommended by the Chief of Police in
- No disciplinary proceedings have ever been instituted against the apphcant with regard to "his acts and deeds for the year 20 1974" which were referred to in the sub judice decision and applicant had not been heard. Held,that for the purposes of promotion information and/or accusations againstacandidate,oncenodisciplinary proceedings were instituted against him, and once he was not given the 25 right to beheard should not betaken into consideration; that it was the duty of the administration to act in accordance with the general principles of administiative law and of natural justice; and that since they failed to act in this way the sub judice decision must be annulled. 30 Held, further, that the explanations contained in a letter which the applicant had addressed to the late President of the Republic do not satisfy the right to be heard of the rules of natural justice because the letter was sent without the accused having in mind those accusations. 35 Subjudice decision annulled. Cases referred to: Haviarasv. Republic
(1981)3 C.L.R. 415'at p. 417; Tzavellas and Anotherv. Republic
(1975)3 C.L.R. 490; 160 3 C.L.R. 5 10 Haviaras v. Republic Koudounas v. Republic
(1981)3 C.L.R. 46 at pp. 52, 53; Savva v. Republic
(1981)3 C.L.R. 599 at pp. 601, 602; Charalambous v. Republic
(1981)3 C.L.R. 203 at p. 210; Chief Constablev. Evans [1982] 3 All E.R. 141; Ridge v. Baldwin [1963] 2 All E.R.
- Recourses. Recourses against the decision of the respondent to appoint and/or promote the interested parties to the post of Chief Superintendent in preference and instead of the applicant, K. Koushios with A. Haviaras, for the applicant, M. Florentzos, Counsel of the Republic, for the respondent. Cur. adv. vult. HADJIANASTASSIOU J. read the following judgment. By the 15 present recourses the applicant Loucas Haviaras seeks a declaration that the act and/01"decision of the respondents to appoint and/or promote to the post of Chief Superintendent Charalambos Spyrou, Stelios Menelaou and Panayiotis Votsis instead of the applicant is null and void and of no legal erfect. 20 THE FACTS The applicant joined the police force on 8th February, 1954, and climbed up the ladder as per the details appearing in the file and became Superintendent *A* on the 1st September,
- He is a graduate of the English School of Morphou and passed 25 the examinations in English language ordinary and with distinction and attended a course of senior officers at Hendon College in United Kingdom between the 19th January and 6th June,
- He served in various branches of the police force and as from the 7th September, 1977, he was appointed in the 30 Police Training School. Indeed the applicant is senior to the three interested parties having been promoted to the rank of Superintended 'A* five years before. The interested party Charalambos Spyrou joined the police force on the 1stJuly, 1948,and climbed up the ladder also asper 35 the details appearing in Ijie file, Appendix B, and became Chief Superintendent on 1st October,
- He has graduated from the High School and has passed the examinations for lower 161 HadJfaiMstasstou J. Haviaras τ. Republic
(1983)English. He has served in the various departments of the police and since the 1st September, 1977, he is serving in the police headquarters. See Appendix Β where his whole career is shown. As regards the second interested party Stelios Menelaou hejoined the police force on 1st September, 1941,and hasbeen promoted and now has become Chief Superintendent. Hehas also graduated a Hight School and has succeeded in passing various examinations as it appears in Appendix B. 5 The interested party Panayiotis Votsis joined the Police 10 Force on the 1st July, 1947 climbed up the ladder of thepolice hierarchy as per the particulars appearing in Appendix Βatta ched to the application. Hebecame Superintendent'B' onthe 1st September, 1972 and Superintendent Ά ' on the 1st July,
- He attended for three years a secondary school and 15 followed a course of lessons for vehicle driving at the U.K. from the 17th June, 1957, to the 21st July,
- In addition he attended short courses of motor-car engineering organized by the Productivity Centre of Cyprus during the years 1968, 1970,
- He served for ten years in various branches of the 20 police and ever since the 1st September, 1960, he is the officerin-charge of the Central Police Work-Shop. As from the 10th December, 1980, he is on leave prior to his retirement. Thepresent applicationis based onthefollowing legalpoints:
(1)Thatthedecision attacked and/ortheactof the respondents 25 was taken contrary to theprovisions of the Constitutionandof the general principles of administrative law and/or in abuse of the powers entrusted to them.
(2)The respondents have failed to exercise properly their duties in selecting the best candidate.
(3)Therespondentshave nottaken intoconsiderationandhave 30 not valued correctly the seniority, experience and superior qualifications of the applicant.
(4)By appointing and/or promoting the interested parties instead of the applicant the respondents have exercised their discretionary powers wrongly. And
(5)thedecision attacked and/orthe act of the respondents 35 is not duly reasoned and/or the reasoning is wrong in law. On the 2nd April, 1982, counsel for the Republic opposed the application of the applicant and relied on the following legal point: That the act and/or decision attacked is duly 162 3 C.L.R. Haviaras v. Republic Hadjlanastassioa J. reasoned and was taken correctly and legally in accordance with the relevant provisions of the Constitution, the laws, and/ or the regulations and after a proper exercise of the powers possessed by the Minister, as well as on the basic facts and 5 circumstances of the case. Counsel further relied on the following facts:
(1)In accordancewith theprovisions of section 13
(1)of thePohce Law,Cap. 285superior officers shallbeappointed, promoted anddismissed by the Minister.
(2)On the 14th October, 1981,the Supreme 10 Court had issued its decision in Case No. 458/80 by which the applicant was attacking the promotion of the interested parties withregardtothepostofChief Superintendent. Byits"decision the said Court annulled the decision of promotion of the two interested parties.
(3)On 17th November, 1981, the respon15 dents in accordance with their powers which are derived from section 13
(1)ofthePoliceLawCap.285had reviewedthewhole position of thepromotion of theapplicant and/or the interested parties and has decided to promote the interested parties as from the 1stMarch,
- Indeed, thecorrect statement of the 20 decision of the respondent is as follows: "I have re-examined the question of the promotion of Mr. Loucas Haviaras after thedecisionoftheSupremeCourt inCaseNo.458/
- Having in mind the acts and deeds for the period of 1974, as well as, his explanations as a result of those activities Mr. Haviaras is 25 not acceptable by the majority of the members of the police force with the result that his authority within the police is limited, afact whichinfluences hisproductivity insuchadegree as tomakeit impossible to bepromoted to that very important post of Chief Superintendent, and as a result of that his pro30 motion is not warranted in the particular circumstances." Then, the Minister goes on: "I have reviewed the cases of Messrs. Charalambos Spyrou and Stelios Menelaou of whom the promotions were annulled by the decision of the Supreme Court in Case No. 458/
- In view of my decision as regards 35 Mr. Haviaras I have decided to promote Mr. Spyrou and Mr. Menelaou as from 1st October, 1980, and also Mr. Votsis as from 1st November, 1980." These two cases had to be adjourned on a number of times for reasons appearing on the record and particularly in order 40 to trace the files. On 10th July, 1982, counsel appearing for the applicants made this statement: "It is the second time 163 Hadjlanastassiou J. Haviaras v. Republic
(1983)1 am appearing before Your Honour's Court asking for dire ctions for the delivery of file P.P.282/2 which is mentioned in the opposition filed in both recourses. Unfortunately, the file has not been inspected by us as yet for reasons which I do notunderstandandindeedonthe26thApril, 1982,andonwards 5 we have repeatedly ask Your Honour'sCourt to givedirections regarding this matter. We consider the response of the re spondents inexcusable and we pray that the case is fixed for hearing at the earliest possible date." In the light of this statement the case was fixed for hearing on the 10th September, 10 1982, with a rider that the files should be available to be in spected by counsel for the applicants five days before the date of hearing. There is no doubt that the applicant is more senior than the interested parties and with better qualifications. Indeed he 15 was also recommendedby theChief of Policein 1979 andcoun sel appearing onbehalf of the respondentdid not even challenge those facts. GROUNDS OF LAW Counsel for the applicant in support of his grounds of law 20 argued very ably indeed (
- a)that the respondents erred in pro moting the interested parties, and have acted contrary to the provisions of the law to choose the best suitable candidate; (
- b)the respondents had failed to take into consideration the seniority, experience and the better qualifications of the 25 applicant Counsel further contended that the respondents were unduly influenced in attaching so much importance to anunsigned letterwrittenduring theperiod of 1974,andwrongly the Minister reached the conclusion that the applicant is not acceptable to the majority of the members of the police force. 30 Indeed, counsel further argued that the respondents were not entitled to take into consideration such accusations based on information as to applicant's loyalty and without instituting disciplinary or criminal proceedings against him. There is no doubt, in my view, that the only important 35 question which is raised before theCourtis whethertheMinister in deciding not to appoint the applicant erred in law. I have conadejed .vesy carefully the contents of the letter in question, $£uW 5»ood tfea ectivitiso and thedeeds of the applicant for ΰαφξέο&βίΓ 197A, aowell aotheexplanations of theapplicant, 40 160 3 C.L.R. Haviaras v. Republic Hadjlaoastassiou J • and I am afraid that those damning accusations by the Minister that the applicant was not acceptable to the majority of the police force is to say the least unreasonable, and that such statement was very prejudicial to the career of the applicant 5 indeed, but I shall revert on this matter. With respect time and again it was said in a number of cases before the Supreme Court that for the purposes of promotion information and/or accusations against a candidate, once no disciplinary proceedings were instituted against him, should 10 not betaken intoconsideration, and in myview,it wasthe duty of the administration to act in accordance with the general principles of administrative law and of natural justice. There is no doubt that the Supreme Court in a number of cases attaches importance to the seniority, as well as to the 15 experienceand better quahfications, and ina recentcase Loucas Haviaras v. The Republic
(1981)3 C.L.R. 415 Mr. Justice Malachtos had this to say at p. 417: 20 "It is clear from the above letter of the Chief of Pohce that the applicant in this recourse was recommended forpromotionpriortotherecommendationoftheinterested parties. It is further not disputed that the applicant, who is by five years senior to the interested parties, was on the whole the best candidate " As I find myself in agreement with Mr. Justice Malachtos 25 I turn now to themost important ground of law and it appears that the reason why the applicant was not promoted by the Minister is due to the provisions of an unsigned letter, exhibit 5, as well as his acts and deeds during the period of 1974and applicant's explanations on this subject. In addition it was 30 said that the applicant is not acceptable to the majority of the members of the police force with the result that his authority is minimized. I have considered very carefully indeed these damning allegations against the apphcant but in a great number of cases before the Court it was made amply clear 35 that for the purposes of promotion information and/or accusations against a person once no disciplinary proceedings were instituted against him and once he was not given the right to beheard, in my view, he cannot be found guilty. If authority is needed, see the case of Demetrios Ch. Tzavellas andAnother 40 v. The Republic
(1975)3 C.L.R. 490. In Christos Koudounas 165 Haditanastassioa J. Haviaras v. Republic
(1983)v. The Republic
(1981)3 C.L.R. 46, I had this to say at pp. 52, 53: "I find it convenient, before dealing with the submission of both counsel, to refer to the duties and obligations of public officers under s.58(l) of the Public Service Law, 5 1967, (33/67). Section 58
(1)reads: 'Every public officer shall— (
- a)be loyal and respect the law; (
- b)faithfully and unfailingly perform his duties and generally use his utmost exertions to promote the 10 interests of the Republic; (
- c)carry out and comply with any orders and directions; (
- d)not commit any act or omission or conduct himself in a way which may bring thepublic service in general or his office in particular into disrepute or which 15 may tend to impair the confidence of the public in the public service; (
- e)properly conducthimself towards his superior officers and colleagues and towards the public'. In view of the fact that the Commission included the 20 applicant on the list, but finally decided not to promote or second him—themain reason being the report of ΚΥΡ —the Commission was unduly prejudiced and it is the only reason for not promoting or seconding the applicant to the post in question. What is equally surprising, is 25 that in that report which has been sent by ΚΥΡ, it simply says that the applicant is not a loyal person and does not respectthelaw, but noreasons wereputforward tosupport such a damning statement. With this in mind,I have no doubt at all that the Com- 30 mission, in not promoting or seconding the applicant to the post in question, was unduly influenced, acted contrary to the principles of natural justice, and did not give the applicant a chanceto repudiate all thosedamning allegations against him. With respect, it was the duty 35 of the Commission, once they had in their hands the said 166 3 C.L.R. Haviaras v. Republic Hadtfanastasskxi J. report, to postpone their final decision and institute disci plinary proceedings under the Disciplinary Code'*. 5 10 15 20 25 30 35 Indeed counsel for the respondent claimed that the acts and/or deeds of the applicant which the Minister had in mind appear in reds 16-18 of exhibit 5 at pp. 7-20. There is no doubt, as Ihave said earlier, that theunsigned documentwhich is referred to the applicant, and which is in the hands of ΚΥΡ, again theSupreme Courthad theoccasion todeal with a similar caseandparticularly for theviolation of theprinciples of natural justice. With that in mind it remains to examine the question of the date,viz., 18th March, 1977, red 20 in exhibit 5'and the letter of theapplicant sent to the late President of the Republic Archbishop Makarios which in accordance with thecontentions of counsel for the Republic contains the explanations and the views of the applicant. Indeed, if I understood well the argu ment of counsel for the Republic is that with that letter it must be accepted that the provisions of natural justice are justified for therightto be heard. With respect in thefightof theprin ciples enunciated by our Supreme Court such stand cannot beaccepted because thesaid letter was sent to the latePresident without theaccused having in mind those accusations. Indeed, in my view, that letter cannot be considered as a reply. If authority is needed see the case of Charalambos Savvav. The Republic of Cyprus
(1981)3 C.L.R: 599, where Triantafyllides P. had this to say at"pp. 601, 602: "It is common ground that, as has been very fairly stated by counsel for the respondents, not only there were not everinstituted against theappellant criminal or disciplinary proceedings in relation.to the alleged criminal conduct of his—which is, obviously, a matter of a very serious nature—but he was never informed about the accusations against him and was never given the opportunity to reply to them, either orally or in writing, so that the Council of Ministers would have before it his own version too. In the absence of any indication to the contrary, we have, in the circumstances, to assume that the Council of Ministers took1 into account, and was substantially. influenced by, the aforementioned accusations against the 167 Hadjianastassiou J. Haviaras v. Republic
(1983)appellant, and, in view of the fact that the appellant was nevergivenan opportunity toreply,inanywaywhatsoever, to such accusations, we are of the opinion that there has occured an infringement of the basic rule of naturaljustice which required that the appellant should have been given 5 a chance to be heard before being treated in the manner about which he is now complaining. Consequently the sub judice decision of the Council of Ministers by means of which he was refused a pension is vitiated by the aforesaid failure to afford him an opportunity to be heard and 10 it has to be declared to be null and void and of no effect whatsoever". Inaddition Iwouldaddthat nowhereistobefound anadmission or an apology by the applicant, but, on the contrary he was alleging all along that he offered valuable services in such 15 a way as not to put in danger the life of his colleagues. The further question is how isit possible to contradict such an allegation. Indeed, that letter remained in the file since 1977 and apart from the fact that the Disciplinary Regulations of the police were still in force, as well as, the provisions of Law 20 3/77 the applicant was not prosecuted and in effect he was deprived of his rights to defend himself. If authority isneeded see the case of Yiannakis Charalambous v. TheRepublic
(1981)3 C.L.R. 203, where I had this to say at p. 210: "Having considered very carefully the facts and circum- 25 stances of this case and having listened to the addresses ofcounsel,Ithink I oughttoput onrecordthat thepromotions of police officers are governed by the Police Law Cap.285,asamendedbya number oflawsand particularly by Laws 19/60, 21/64 and 29/64. There is no doubt that 30 the applicant falls within the provisions of section 13
(1)of Cap. 285, as well as the Regulations governing promotions which are made in accordance with section 10 of the Law, and the general Regulations which provide for disciplinary offences and the conduct of the members 35 of the Police Force. Oncethe Regulations for disciplinary offences are still in force, and once the administration •was believing that the.applicant has committed offences, it was indeed fos. the appropriate authority to make it clear, and to follow the procedure laid down by the Law 40 168 3 C.L.R. Haviaras v. Republic Hadjlanastassiou J. andthe Regulations,but not toactcontrary to thoseprovisions". See also on the question of the rules of natural justice the recent case of ChiefConstable v. Evans [1982] 3 All E.R. 141, 5 and the dictum of Lord Reid in Ridge v. Baldwin [1963J 2 All E.R. at p. 72. For the reasons I have given at length and inthe light of the authorities I have quoted, I have"reached the conclusion that thedecisionand/ortheactoftherespondentsshouldbedeclared 10 null and void and of no legal effect whatsoever. Recourses succeed, the sub judice decision is annulled with costs in favour of the applicant. Sub judice decision annulled. 169