clr/1983/1983_3_7.pdf

(1966)3 C.LR. 793 at p. 799 and

(1969)3 C.L.R. 190 atp. 207 not applicable. Natural justice—And good administration—Principles of—Not violated by reason of not applying the Pensions (Amendment) (No.2) Law, 1981 (Law 39/1981) to the case of applicant whose retirernent had preceded tlie enactment of the Law, which has no retrospective effect. Constitutional Law—Equality—Principle of equality applies in similar situations—Article 28 of the Constitution. 15 20 Following the commencement of a disciplinary investigation against him for alleged involvement in the Coup d'etat of July, 1974, the applicant, a Police Officer, by his letter dated 6th March, 1979 submitted his resignation from the ranks of the Police Force, which was accepted. By letter dated 10th Decembei, 1980 applicant applied to the respondent to be given pension or gratuity by virtue of regulation 45* of the Police Regulation 45 is quoted at pp. 14-15 post. 7 Danos r. Republic

(1983)(Discipline) Regulations, 1958 to 1977; his application was refused and hence this recourse. Counsel for applicant mainly contended:

(1)That applicant's resignation was not a voluntaiy but a compulsory one and that regulation 45 of the Police (Discipline) Regulations 1958 to 1977 applied. 5

(2)That the case of Constantinou v. The Republic

(1966)3 C.L.R. p. 793 at p. 799and Constantinou v. The Republic

(1969)3 C.L.R. p.190 at p. 207 are helpful where it was held that the notion of compulsory retirement as 10 used in paragraph (c) of the relevant definition in section 2 of the Dismissed Public Officeis' Reinstatement Law, 1961(LawNo.48of 1961),wasnot intended to beunderstood only in the narrow technical sense of section 8of the Pensions Law, Cap. 311, but was intended to in- 15 elude cases where an officer has been compelled by political reasons to seek peimission to letire without being formally requiied to do so and that by analogy the same interpretation should begiven to regulation45.

(3)That the subject decision constitutes a violation of the 20 rules of good administration and/or natural justice inasmuchassamewastakenwhentheCouncilofMinisters had already approved a bill for the amendment of the Pensions Law, and which bill was enacted as a Law* on the 17th July 1981 by viitue of the provisions of 25 which the applicant, even if he left voluntaiily the service he would have been entitled to a pension and gratuity.

(4)That there has been a violation of the principle of equality, recognized by Article 28 of the Constitution inasmuchasother publicofficers whohadactively participated 30 inthe Coup d'etat and whose serviceswereterminated by virtue of section 6 of the Pensions Law, Cap. 311 were given full pension and gratuity. Held,

(1)that regulation 45 applies in the case where for a disciplinary offence the punishment imposed isthat of "require- 35 * ThisisthePensions(Amendment)(No.2)Law,1981 (Law 39/1981). 8 3 C.L.R. Danos v. Republic ment to resign"; that since applicant has not been punished disciplinatily, regulation 45 does not apply. 5 10 15 20 25 30 35

(2)That the Constantinou cases (supra) turned on the inteipretation of a particular Law and can have no bearing in this cast, even if it were to be considered that the circumstances under which the applicant resigned amounted to what has been submitted on his behalf as a compulsion, which it is not.

(3)That the amendment to the Pensions Law, which was effected by means of the Pensions (Amendment) (No.2) Law, 1981(Law 39/1981), came into force more than two years and three months after the resignation of the applicant from the service. It has no retrospective effect and there is nothing to warrant the contention that the non-payment of pension or giatuity to the applicant constituted a violation ofthe principles of good administration and/or natural justice, whatever these contentions may mean in relation to the circumstances of this case.

(4)That the contention about violation of Article 28 of the Constitution cannot stand as same has not been substantiated hiany way so asto make a comparison oftheir similaiilies that could justify equal treatment and furthermore on the basis of what is alleged these are different situations inasmuch as the applicanthadhimself resigned and section6oftheLawprovides for thecircumstances for whichpensions may begranted, which as it stood at the time of the applicant's resignation it did not cover his case. Application dismissed. Cases' referred ,to: . Constantinou v. Republic

(1966)3 C.L.R. 793 at p. 799; Constantinou v. Republic

(1969)3 C.L.R. 190 at p.

1. Recourse. Recourse against the decision of the respondent not to grant applicant pension/gratuity. L. Clerides, for the applicant. A. Vlademirou, for the respondent. Cur. adv. vult. A. Loizou J. read the following judgment. The applicant joined the Cyprus Police Force in
2. He was promoted 9 A. Loizou J. . Danos τ. Republic

(1983)to a Sergeant in 1968, Subinspector in 1971 and an Inspector on the 10th July

1. Investigations, under The Certain Disciplinary Offences (Conduct of Investigation and Adjudication) Law, 1977 (Law No. 3 of 1977) were commenced, when the applicant heard about them and on the 6th March 1979 by letter of that date addressed to the Minister of Interior through the Chief of the Police (Appendix A), submitted his resignation to the Minister by letter of that date, (Appendix A) which reads as follows: 5 10 "Κύριε, Δια της παρούσης λαμβάνω τήν τιμήν νά υποβάλω τήν παραίτησίν μου, τήν άπόφασιν μου δε ταύτην τήν έλαβον κατόπιν ωρίμου σκέψεως και ή otroict είναι αμετάκλητος. ΟΙ λόγοι ot όποιοι με ώθησαν είς τήν άπόφασιν ταύτην 15 είναι ot ακόλουθοι:
2. Έπληροφορήθην σήμερον ότι υφίστανται ή διερευνώνται διάφοροι καταγγελίαι είς βάρος μου δια ενεργείας μου ή πράξεις άποσκοπούσας ε!ς τήν έδραίωσιν τοΰ πραξικοπή­ ματος. Έξ ϋπαρχής απορρίπτω ταύτας κατηγορηματικώς καθ* δτι πρόκειται περί ασυστόλων ψευδών καΐ συκοφαντιών.
3. "Εχω τήν συνείδησιν μου καθαράν ότι ουδέν έπραξα καθ* ύπέρβασιν εξουσιών. Γνώμη τών πράξεων μου ήτο πάντοτε τό δημόσιον συμφέρον καΐ οί νόμοι της πολιτείας. Ουδέποτε ήθελημένως ή άθελήτως κατέστην όργανον οίασδήποτε πολιτικής ή κομματικής καταστάσεως. Κατά τήν μακράν μου Οπηρεσίαν έδιδάχθην δτι ό αστυνομικός πρέπει νά παραμένη μακράν τών πολιτικών παρατάξεων, διά νά δύναται νά πράττη τό καθήκον του ε(ς τό άκέραιον. 20 25
4. Κατά τήν διάρκειαν της 25έτοϋς υπηρεσίας μου είς τήν 30 Άστυνομικήν Δύναμιν Κύπρου μόνον εύφημους μνείας ετυχον έκ μέρους τών Κυπριακών Δικαστηρίων, τοΰ Γραφείου τοΰ Γενικού Είσαγγελέως καί τών ανωτέρων μου. Ουδέποτε ετυχον της ελαχίστης τιμωρίας.
5. Τώρα ή Κυβέρνησις διατάζει πειθαρχικήν εναντίον μου 35 Ιρευναν βασιζόμενη επί καταγγελιών ανυπόστατων. Μήπως αυτή είναι ή αμοιβή προς τάς πολλαπλάς υπηρεσίας τάς οποίας μέχρι τοΰδε προσέφερον; θ ά ήτο εϋκολον νά !σχυ- 10 3 C.L.R. Danos.v. Republic A. Loizou J. ρισθη τις ότι δύναμαι νά αντιμετωπίσω τάς κατηγορίας και νά άφεθη τό Θέμα νά άχθη ενώπιον της Δικαιοσύνης. 'Αλλά ποία ή πίστη μου προς αυτήν τήν κατεύθυνσιν ή οποία ομολογουμένως Ιχει κλονισθη; 5 10 15 20 25
6. Δυσκολεύομαι πολύ νά πιστεύσω ότι ή Κυβέρνησις μέ αυτόν τόν τρόπον κάμνει τήν κάθαρσιν των υπευθύνων τοΰ πραξικοπήματος, οί όποιοι είναι καλώς γνωστοί τόσον είς τήν Κυβέρνησιν όσον καΐ είς τον λαόν μας.. Μάλλον τείνω νά πιστεύσω δτι ή πραξις αυτή της Κυβερνήσεως ενέχει πολιτικές σκοπιμότητες, καθ' δτι παρέμεινα υπεράνω κομμά­ των καί ουδέποτε έγινα υποχείριος οίουδήποτε.
7. Δέν είναι όμως δυνατόν νά δεχθώ ή ανεχθώ νά γίνω Θέμα αΰτης της καταστάσεως καί νά διασύρεται τό όνομα μου. Πληθώρα αξιωματούχων της Κυβερνήσεως ενήργησαν κατά τρόπον άπαράδεκτον άλλα όμως έκαλύφθησαν ύπό τών Κυβερνώντων διότι έγένοντο μεταγενεστέρως υποχείριοι πολιτικών καταστάσεων.
8. Επιπροσθέτως ή προσωπική μου αξιοπρέπεια, τιμή καί ύπόληψις έθίγησαν είς τοιούτον βαθμόν, πρα/μα τό όποιον ή Κυβέρνησις ώφειλε νά άπόκαταστήση πάραυτα. 'Επειδή όμως δέν διαφαίνεται τοιαύτη' προοπτική, ούτε πιστεύω ότι ή δικαιοσύνη θά λάμψη δέν μοΰ-απομένει άλλη εκλογή παρά νά υποβάλω τήν παραίτησίν μου άπό τό 'Αστυνομικά Σώμα καί διά της παρούσης υποβάλω ταύτην αμετακλήτως". And in English it reads: 30 35 "Sir, By the present I. have the honour to submit my resignation, I took this decision after mature thought and it is irrevocable. The reasons which led me to this decision are the following: •
9. I was informed to-day that there exist or there are investigated several reports against me for activities and actions of mine intended to consolidate the Coup d' etat. From the outset I reject them explicitly as they are unfound­ ed and slanderous lies.
10. I have my conscience clean that I did nothing in excess 11 Λ. Loizou J. Danos v. Republic

(1983)of my powers. The cornerstone of my acts was always the public interestandthelawsof theState. Neverwilling­ ly or unwillingly I became the organ of any political or party situation. During my long service I was taught that the policeman must stay away from political parties in order to be able to carry out his duty to the full. 5

1. In the course of my 25 year service with the Cyprus Police ForceIhad only favourable remarks by the Cyprus Courts, the Office of the Attorney General and my super­ iors. I never received the slightest punishment. 10
2. NowtheGovernmentordersadisciplinary investigation against me based on unfounded accusations. Is this my reward for the multiple services which I have until now offered? It would be easy for one to allege that 1 may face the accusations and leave the matter brought before 15 justice. Butwhat ismyfaith tothatdirectionwhichadmit­ tedly has been shaken?
3. It is difficult for me to believe that in this way the Government makes the purgation of those responsible for theCoupd'etatwhoarewellknownbothtotheGovern- 20 ment and to our people. I am rather inclined to believe that this act of the Governmenthas political expediencies as I stayed above parties and Inever becameaninstrument of anybody.
4. It is not possible for me to accept or offer to become 25 a victim of this situation and have my name smeared. A plurality of officials of the Government acted in an unacceptable way but they have been covered by those in power because they became subsequently instruments of political situations.
5. In addition my personal integrity, honour and respon­ sibility have been offended to such a degree, an act which the Government ought to reinstate immediately. As, however, no such prospect appears nor do I believe that justice will shine, I am left with no other choice but to 35 submit my resignation from the Police Force and by this I submit same irrevocably". The Chief of Police forwarded on the same day the afore12 30 \ 3 CX.R. Danos v. Republic Λ. Loizou J. said resignation to the Minister of Interior by letter of that date (Appendix B) and his comment therein is that "as it is obvious in order to avoid disciplinary prosecution under the Law about purgation given that this is a voluntary submitted 5 resignation, it is recommended that it be accepted. The applicant joined the Force in 1954, he has to his credit 116 days leave of absence". The Minister approved the said resignation, obviously acting under section 13

(2)of the Police Law, Cap.

1. This decision 10 was communicated by letter dated 7th March 1979 (Appendix C) to the applicant through the Commander of the Police Training School where he was serving at .the time, who was informed that the applicant could leave the Force as from the 17th July 1979 after enjoying the leave of absence of 124 days 15 to which he was entitled. He was also asked to see that the Government property, uniforms, equipment, etc, issued to the applicant should be returned. The resignation of the applicant was also published, in the Weekly Orders 30/
2. The applicant by letter through his lawyer addressed to the Director-General of the Ministry οΐ Interior, dated 10th December 1980, (Appendix D),asked that he be given pension or gratuity by virtue of regulation 45 of the Police Law and Regulations. I need not reproduce this letter of counsel for the applicant as in effect it contains the flat denial of the 25 applicant of any complicity in the Coup d'etat and also the legal basis upon which this recourse has eventually been argued before me to which I shall be shortly referring. Suffice it, however, to say that in paragraph 3thereof it is stated that when in March 1979 He was informed that an investigation was 30 carried out against him regarding a probable excess of authority by him during the treacherous Coup d'etat, on account of sensitivity (λόγω εύβιΕίας), he was compelled to submit his resignation in order to avoid any agitation which inevitably would be created with regard to his name and that since his 35 resignation he practices the profession of an advocate in Nicosia. 20 The reply to this letter of counsel, given on behalf of the Director-General of the Ministry of Interior, is to be found in his letter dated 30th July 1981 (Appendix E), which reads: " I have been instructed to refer to your letter dated 10th 13 Λ. Loizou J. Danos v. Republic

(1983)December 1980 with regard to the ex-inspector Kyriacos Danos and to inform you that under the Law nopension/ gratuity can be paid to Mr. Danos". This is the communication of the sub judice decision which is challenged by this recourse. Thefirst ground cf Law relied upon by the applicant is that his resignation was not a voluntary but a compulsory one,that regulation 45 of the Police (Discipline) Regulations, 1958 to 1977 applies and that thecases of Constantinou v. The Republic

(1966)3C.L.R.p.793atp. 799andConstantinouv. TheRepublic 10

(1969)3C.L.R. p. 190at p.207 are helpful. Inthesetwocases it was held that the notion of compulsory retirement as used in paragraph (c) of the relevant definition in section 2 of the Dismissed Public Officers* Reinstatement Law, 1961 (Law No. 48 of 1961), was not intended to be understood only in the 15 narrow technical sense of section 8 of the Pensions Law, Cap. 311, but was intended to include cases where an officer has been compelled by political reasons to seek permission to retire without being formally required to do so and that by analogy'the same interpretation should be given to regulation 20 45. Regulation 45 reads as follows: "Ε!ς περίπτωσιν καθ* ήυ ή δυνάμει τών παρόντων Κανο­ νισμών επιβληθείσα είς μέλος της Δυνάμεως ποινή διαπειθαρχικόν αδίκημα εϊναι ή της Οπό τοΰ έκδικάσαντος τό 25 αδίκημα απαιτήσεως προς τό μέλος διά παραίτησίν, ή συνεπείο; της τοιαύτης ποινής παραίτησις τοΰ μέλους θά θεωρήται, διά σκοπούς συντάξεως, ώς τερματισμόςυπηρε­ σίας προς τό δημόσιον συμφέρον καί δέν θά άποστερή τό μέλος τοΰ δικαιώματοςτου διάσυνταξινχορηγουμένηνεπί 30 της ρηθείσης βάσεως τοΰ τερματισμού υπηρεσίας προς τό δημόσιονσυμφέρον". In English it reads: "In casethepunishmentimposed by virtue of these Regula­ tions on a member of the Force for a disciplinary offence $5 is the one of requirement to resign, the resignation of the member arising as a result of such punishment will, for purposes of pension, be considered as termination of 14 5 3 C.L.R. Danos v. Republic A. Loizou J. services in the public interest and will not deprive the member of'his rights to pension granted on the said basis of termination of services in the public interest". It is clear from its wording that this regulation applies in 5 thecasewherefor adisciplinaryoffence thepunishmentimposed is that of "requirement to resign". I such case the resignation of the member resulting from such punishment is deemed by the regulation itself as termination of services in the public interest and gives to such member such rights to pension as 10 are given by sections 6 and 7 of the Pensions Law,Cap.311, as amended. Consequently regulation 45 invoked on behalf of the applicant in the present case does not apply, even if I were to hold, which I do not, that the resignation of the applicant 15 was not a voluntary but a compulsory one, because the prerequisite of resignation required as a punishment in disciplinary proceedings does not exist in this case. Moreover the carrying out of investigations under the aforesaid Law No. 3 of 1977 does not satisfy these,express and clear prerequisites for the 20 application of this regulation. As far as the approach in the case of Constantinou v. The Republic (supra) is concerned, the simple answer is that these cases turned on the interpretation of a particular Law and can haveno bearingin thecasebefore us,even if1 wereto consider 25 that the circumstances under which the applicant resigned amounted to what has been on his behalf as a compulsion, which I do not. The reasons for finding that his resignation wasone made on his own free will isthat thisisapparent from theverywordingofhisownletterofresignation andthecircum30 stances under which it was submitted. To my mind the commencement of investigations could not in the circumstances be held to constitute in Law compulsion that brought about his resignation. Furthermore it should hot be ignored that the applicant was a police officer and a qualified advocate 35 and by virtue of his training and qualifications be could not but have full knowledge of his legal rights and in particular of the principle that everyone is presumed to be innocent until proved guilty. The second ground of Law argued on behalf of theyapplicant 40 is that the subject decision constitutes a violation of the rules A. Loizou J. Danos v. Republic

(1983)of good administration and/or natural justice inasmuch as same was taken when the Council of Ministers had already approved a bill for the amendment of the Pension Law and which billwasenacted as a Lawon the 17th July 1981byvirtue of the provisions, by which the applicant, even if he left 5 voluntarily the service he would havebeenentitled to a pension and gratuity. This is the Pensions (Amendment) (No. 2) Law of 1981 (Law No. 39 of 1981). This Law was published-on the 17th July 1981. By section 6 of this Law, section 7(c) is added to 10 thebasicLawand provision ismadefor thepayment ofpension or gratuity, under certain circumstances to officers holding pensionable offices who wish to retire earlier than their retiring age. As already indicated this amendment came into force more than two years and three monthsafter theresignation of 15 the applicant from the service. It has no retrospective effect and there is nothing to warrant the contention that the nonpayment of pension or gratuity to the applicant constitutes a violation of the principles of good administration and/or naturaljustice,whatever thesecontentionsmaymean inrelation 20 to the circumstances of this case. Finally the argument on behalf of the applicant that there has been a violation of the principle of equality, recognized by Article 28 of the Constitution inasmuch as other public officers who had actively participated in the Coup d' etat and 25 whose services were terminated by virtue of section 6 of the Pensions Law, Cap. 311 were given full pension and gratuity, cannot stand as same has not been substantiated in any way so as to make a comparison of their similarities that could justify equal treatment and furthermore on the basis of what 30 is allegedthesearedifferent situationsinasmuchasthe applicant had himself resigned and section 6 of the Law provides for the circumstances for which pensions may be granted, which as it stoodatthetimeoftheapplicant's resignation itdidnotcover his case. For all the above reasons this application is dismissed but in the circumstances I make no order as to costs. Application dismissed. No order as to costs. 16 35