clr/1984/1984_3_1067.pdf

(1984)Decisions of organs exercising discretionary powers-—Though Court cannot•interfere withthe discretion of such organs once it hasbeen exercisedproperly it mustbeinaposition to exercise control as to whetherthe discretionary power was exercised properly—Andfor thisreason the decision of suchorgans must 5 be reasonedand proper recordsshould be kept—Decision of Chief of Police withholding emoluments of applicant taken in exercise of discretionarypowers under regulation 23(f)(iii) ofthe Police (Discipline) Regulations—No record of the decision kept and no reasons therefor—Sub jadice decisionannulled. 10 The applicant a Police Inspector, was on the 4th February, 1980 interdicted from duty, pending his trial on disciplinary charges; and since his interdiction he was being paid twothirdsofhissalary. Hewastried bytheDivisionalCommander and upon his conviction hewas sentenced to pay afineof £20, 15 on the 5th August,

1. His interdiction was terminated on 27.6.
2. Heappealedagainsthisconviction totheCouncil of Ministers which dismissed his appeal on the 2nd February,
3. Thereafter the Chief of Police in exercise of his powers under regulation 23(f)(iii) of the Police (Discipline) Regu- 20 lations, decided that the emoluments of the applicant for the period of his interdiction 4.2.1980—27.6.1980 be forfeited. Hence this recourse which was directed both against the dismissalofhisappeal andagainsttheforfeiture ofhisemoluments. Counsel for the applicant mainly contended: (a) That the respondents acted contrary to regulation 23 in that the approval of the Chief of Police and the confirmation of the Council of Ministers are both required for the interdiction of an Inspector, whilst in the present casethe interdiction was effected by the 30 Divisional Commander without the previous approval of the Chief of Police and the required confirmation was not given bythe Council of Ministers but by the Minister of Interior. (b) That thesubjudicedecision oftheCouncil ofMinisters 35 was not reasoned. (c) That the Council of Ministers was not entitled to delegate its powers regarding the appeal to another 1068 25 3 CL.R. Choralusτ. Republic organ, that is a Committee of Ministers as the act was of a judicial and not administrative or executory nature. 5 10 (d) Thatthesubjudice decision oftheCouncilofMinisters was void because it makes references to regulation 38 whilst applicant's appeal was made in accordancewith regulation 20

(2)of the Police (Discipline) Regulations. (e) That the withholding of the emolumentswas another form of punishment additional to the one imposed by the Disciplinary organ and should be compatible with the one imposed. 20 Held,

(1)that since no recourse was made by the applicant against his interdiction at the appropriate time any grounds that may possibly be raised now regarding the validity of his interdiction are obviously, out of time; and that, further, the interdiction is not part of a composite administrative act so that it may merge in the final act and be challenged together with it since it does not form part of the disciplinary process as such but it is simply a step taken, as a result of disciplinary action, against the applicant. . 25

(2)Thatthoughno reasonsaregiveninthesubjudicedecision of the Council of Ministers, the reasoning of a decision may be supplemented or appear in thefileof the case and that the reasonswhich appear inthefileof this case afford anadequate reasoning to the sub judice decision. 15 30 35

(3)ThatwhattheCouncilinfact didwas tonominatea Com­ mittee, consisting of four of its members, to go through the whole matterand submit their report with theirfindingsto the Council,which would then sit, inits full compositionanddecide uponthe matter;that this does not amountto a delegation of powers since the final decision was reached by the Council itself, as a whole.

(4)Thatinsubstancethere isnodifference betweenregulation 20

(2)and regulation 38,exceptthatthey refer to different ranks of officers; that only the contraventionof an essential formality renders an act liable to annulment; that, as a general rule, formalities set upby circularsor otheradministrative regulations are not essential but mere formalities; that even if theCoun1069 Cboraitis r. Republic

(1984)cit of Ministers was labouring under the wrong impression that the applicant was a "senior officer" within the meaning of the Regulations, this has no bearing on its decision to dismiss the appeal, sinceitstask, sittingasa Court ofappeal,wasto consider the legality and reasonableness of the decision appealed from, which it did; andthat,therefore, the mere reference to the wrong regulation under which the appeal was made was not, in the circumstances ofthe present case, a contravention of aa essential formality leading to theannulment of the subjudice act or decision. 5 10

(5)That the phrase "unless the Chief of Police directs that he shall not receive the said pay and allowances" in regulations 23(f)(iii) denotes an exercise of discretion; that this Court cannot interfere with the discretion of administrative organs once such discretion has been exercised properly; that the Court, 15 however, must be in a position to exercise control as to whether the discretionary power was exercised properly and for this reason, the decision of an organ exercising discretionary powers must be duly reasoned and proper records should be kept for the purpose of enabling the Court to exercise such control; 20 that in the present case no written record has been kept and there isno evidence at all showingwhat the Chief of Police took into account in the exercise of his discretion; that, furthermore, no reasons at all are given, nor they can be inferred from the fileasto how and on what considerations he decided to withhold 25 the emoluments of the applicant, which were deducted during the period of his interdiction; that in the absence of proper records this Court is not in a position to exercise any control at all as to whether the discretion of the Chief of Police was properly exercised; and that, accordingly, the part of the re- 30 course, which is directed against the forfeiture of applicant's emoluments, must succeed. Recourse successful in part. Cases referred t o : Payiatas v. Republic

(1984)3 C.L.R. 165 at p. 192; 35 Vassos Eliades Ltd. v. Republic

(1976)3 C.L.R. 293; Kofai and Another v. C.B.C.

(1973)3 C.L.R. 546; Spvastides v. Republic

(1968)3 C.L.R. 309; Christou v. Republic

(1980)3 C.L.R. 437 at p. 448; Georghiades v. Republic

(1980)3 C.L.R. 486 at p. 490; Bagdades v. Central Bank

(1973)3 C.L.R. 417. 1070 40 3 CL.it. ChoraiLi v. Republic Recourse. Recourse against the decision of the respondents to impose upon applicant the disciplinary punishment of £ 2 0 - for the disciplinary offences of neglect of duty and disobedience to 5 oiders and against the dismissal, by the Council of Ministers, of his appeal against his conviction., 10 /. Typographos, for the applicant. M. Florentzos, Senior Counsel of the Republic, foi the respondents. Cur. adv. vult. SAVVIDES J. read the following judgment. Applicant has been serving in the Police Force for 28 years and since 1974 he is holding the rank of a Police Inspector. On the 3rd February, 1980, whilst the applicant was the officer in charge 15 of the shift work at the Limassol Police Station, a detainee in the lock-ups of the Limassol Police Station escaped from custody. The applicant was considered responsible for such escape and a disciplinary charge was brought against him by the Limassol Divisional Police Commandei accusing him of— 20

(1)neglect of duty and

(2)disobedience to orders under the Police Regulations. In view of the seriousness of the charge the applicant was interdicted as from the 4th February, 1980 and since his interdiction he was being paid two-thirds of his salary. 25 The DivisionalPoliceCommander in theexerciseofhispowers under regulation 14

(1)conducted the disciplinary proceedings and found the applicant guilty of the offences of which he was chargedandimposedonhim on5.8.1980,asentenceof£20-fine. His interdiction was in the meantime teiminated.on 27.6.1980. 30 The applicant appealed against his conviction to the Council of Ministers under the provisions of regulation 20

(2). The Council of Ministers considered the appeal and decided to dismiss same. The decision of the Council of Ministers, No. 19.937 was given on 2.2.1981. The Minister of Interior in35 formed the Chief of Police of the decision of the Council of Ministers who, in his turn, informed the applicant accoidingly 1071 Sawides J. CboraJtis v. Republic

(1984)byletter dated 28th February, 1981the contents of which read as follows: "Appeal to the Council of Ministers for disciplinary case, Limassol 1/80. I refer to your application to the Council of Ministers 5 appealing against your conviction in theabove disciplinary caseand Iwishtoinform youthat the Councilof Ministers having examined youi appeal decided (Decision No. 19.937 dated 29.1.1981, 30.1.1981 and 2.2.1981) to dismiss same". TheChief of Police in theexercise of hispowersunder Regulation 23(f)(iii) of the Police (Discipline) Regulations, decided that the emoluments of the applicant for the period of his interdiction 4.2.1980-27.6.1980 be forfeited and the applicant was informed accordingly. 10 15 As a result, the applicant filed the present recourse directed against the Council of Ministers (respondent 1)the Minister of Interior (respondent 2) and the Chief of Police (respondent 3) whereby he prays for— (a) a declaration ofthe Court that theact and/or decision 20 of the respondents to impose upon the applicant the disciplinary punishment of £20- fine and/or dismiss his appeal against his conviction is unlawful, void and of no legal effect. (b) Adeclaration of theCourt that theactand/or decision 25 of the respondents to forfeit the emoluments deducted during the period of his interdiction is null, unlawful and of no legal effect whatsoever. The grounds of law on which this recourse is based, as set out in the application, are the following: 30

(1)The respondents acted arbitrarily and in violation of the Police (Discipline) Regulations of 1958.

(2)The sub judice acts and/or decisions are not properly and/or legally reasoned and/or they are lacking real and due reasoning.

(3)The respondents did not weigh nor did they examine 1072 35 3 C.L.R. Cboraitis v. Republic Sanities J, properly and legally the real facts and/or they failed to give due weight to the evidence adduced. 5 10 15

(4)Furthermore, the applicant alleges that the respondents lelied on untrue facts and/or evidence without carrying out a detailed and proper inquiry which was lequired due to the nature of the case,and the evidence adduced did not suppoit his conviction.

(5)The sub judice decision and/or act of the applicants to forfeit the emoluments which were withheld during the periodofhisinteidictionisunlawfulinthatitcontravened regulation 23 of thePolice(Discipline)Regulations1958.

(6)The respondents in taking the subjudice decisions acted in abuse and/or excess of powers in that they have acted ultra vires and contrary to the principles of natural justice. Therespondents bytheir opposition supported the subjudice acts and/or decisions and contend that such decisions are duly reasoned and were properly and legally taken according to the provisions of the Constitution and the relevant Laws and 20 Regulations, after the proper exercise of theii powers and after having taken into consideration all material facts, evidence and circumstances of the case. Counsel for applicant has argued in his written address that the respondents acted contrary to regulation 23 in that the 25 approval of the Chief of Police and the confirmation of the Council of Ministers are both requiied for the interdiction of an Inspector, whilst in the present case the interdiction was effected by the Divisional Commander without the previous approval of the Chief of Police and the required confirmation 30 was not given by the Council of Ministers but by the Minister of Interior. Counsel for the respondent argued with regard to the same point, that it is not necessary that the approval of the Chief ofPolicebegivenbefore theinterdiction,butthat suchapproval 35 may be given subsequently and that the letter of the Chief of Policedated 5.2.1980 provides such approval. Counsel further submitted that the Council of Ministers had power, under Law 23/62, to delegate its administrative or executive powers or 1073 Savvides J. Cboraitis v. Republic (19P4) duties to the Minister concerned, by a decision to this effect, andthat theCouncilofMinistershad byitsdecision No.768/61, dated 11.5.1961, delegated its powers of interdiction under regulation 23(c) to the Minister of Interioi. At this stage I wish to obseive that the validity of the inter- 5 diction as such is not challenged by this recourse which turns against the decision of the respondents by which applicant was found guilty of certain disciplinary offences and sentenced to a fine of £20 and the dismissal of his appeal by the Council of Ministers, and(b) against the decision to withhold part of 10 hi» emoluments (one-third) decucted from his salary and detained during the period of his inteidiction. No iecourse was made by the applicant against his interdiction at the appropriate time and any grounds that maypossiblyberaised nowregarding thevalidity of hisinterdiction are, 15 obviously, out of time. Further, the interdiction is not part of a composite administrative act so that it may merge in thefinalact and bechallenged together with it since it does not form part of thedisciplinary process as such butit is simply a steptaken, as a result 20 of disciplinary action, against the applicant (see the case of Payiatas v. Republic

(1984)3C.L.R. 165at p.192and thecases cited theiein). This ground of law is, therefore, dismissed as non-entertainable by this recourse. The next ground argued by counsel for applicant is that of the reasoning of the subjudice decision of the Council ofMinisters. Counsel for applicant contended that the minutes of themeetings ofthe Council of Ministersat whichthesubjudice decision was taken are very vague and do not contain any 30 reasoning andthe Courtisnot therefore inaposition toexercise control on such decision. Fuithcr, counsel argued that the sub judice decision of the Council of Ministers is void also for the reason that it makes reference to regulation 38 whilst applicant's appeal was made in accordance with regulation 35 20

(2)of the Police (Discipline) Regulations. This according to counsel's submission, amounts to the wrong reference to a real fact or the invocation of the wrong law which justifies 1074 25 3 C.L.R. 5 Choraitis v. Republic Sawides J. the annulment of the sub judice decision. Counsel also contended that the Council of Ministers was not entitled to delegate its powers regarding the appeal to another organ, that is a Committee of Ministeis, as the act was of a judicial and not administrative or executory nature. I shall deal with the last argument first. In this respect, it must be observed that the Council of Ministeis did not delegate its power to hear the appeal to the Committee of Ministers. The minutes of the meeting at which the alleged delegation took 10 place, dated 27.11.1980, read as follows: "

1. It was agreed that a Committee, consisting of the Ministeis of Interior, Labour and Social Insurance, Justice and Agriculture and Natuial Resources, studies the mattei and submits Report to the Council". 15 It is obvious from the wording of the minutes that what the Council in fact did was to nominate a Committee, consisting of four of its members, to go through the whole matter and submit their report with their findings to the Council, which would then sit, in its full composition and decide upon the matter. 20 This in my view does not amount to a delegation of powers since the final decision was reached by the Council itself, as a whole. The fact that certain of its members may appear to have a more detailed picture of the whole situation, since they had conducted an inquiry into the matter, cannot change the 25 situation once the result of such inquiry was put before the Council and it wasopen to any ofitsmembers either to question them or ask for any further explanation or details. Besides, what was done by the Committee of Ministers, is part of the internal procedure of the Council and does not affect its final 30 decision, which was reached by the Council itself in its proper composition. (The report of the Committee of Ministers is to be found at red 31 in the file of the applicant which was produced as an exhibit and the final decision of the Council of Ministers appears in red 34). 35 I come now to consider th reasoning of the decision of the Council of Ministers. The sub judice decision (red 34) reads as follows: "
2. The Council considered the appeal, attached to the 1075 Sawidcs J . Cboraitis v. Republic

(1984)submission as Appendix 1,submitted on the basis of Regu­ lation 38 of the Police (Discipline) Regulations 19581978, on thepart of InspectorAndreas Choraitis,who was sentenced by a Disciplinary Committee to £20 fine and decided to dismiss the said appeal". 5 It is true that no reasons are given in the above decision as to why the appeal was dismissed. Nevertheless, it has been held by our Courts in a series of cases that the reasoning of a decision may be supplemented or appear in the file of thecase. (see,thecasesof Vassos Eliades Ltd. v. Republic

(1976)3C.L.R. 10 293, Korai & Another v. C.B.C.

(1973)3 C.L.R. 546, Sevastides v.Republic

(1968)3C.L.R.309). Inthisrespect,Iwishtomake reference to the submitsion to the Council of Ministers (red 27 in the file) to which thefile of the proceedings of theDisci­ plinary Committee was attached, and also the report of the 15 Committee of Ministers tothe Council(red 33) where reference is made to several material facts arising from the evidence adduced during the hearing of the case, leading to the reasons why applicant was found guilty of the offences charged with. These reasons afford, in my view,an adequate reasoning to the 20 sub judice decision of the Council. As it transpires from thefileof the proceedings, theCouncil of Ministers reached its decision after having duly taken into consideration all relevant material available to it and after having conducteda proper inquiry intothecase andits decision 25 was reasonably open to it. This Court is not therefore in a position to substitute its own discretion to that of theCouncil of Ministers or to interfere with the sentence imposed. This part of the argument of counsel is, therefore, dismissed. The second leg of this ground (of reasoning) concerns the 30 reference to regulation 38 instead of 20

(2)by the Council of Ministers in its sub judice decision. The citation of the same Regulation appears also in the submission to the Council of Ministers (red 27) in the file. In the notice of appeal signed by the applicant the Regulation relied upon is regulation 20 35 which is the correct one, since an Inspector is not considered to fall within the definition of a Senior Officer (Ανώτερο* Αξιωματικό*)as set out in regulation 2 of the regulations as amended by the Police (Discipline) Regulations of 1976 and 1076 3 C.L.R. Choraitis v. Republic Sawides J. for whom a special procedure is set up in cases of disciplinary proceedings due to iheir higher rank. The procedure is very similar to the one set out in the original Regulations which is to be followed in cases of proceedings against officers below 5 the rank of SuperintendentB. An Inspectoris below therank of Superintendent Β so the Regulations applicable in his case are regulations 8-23, both inclusive and in case wheie he is aggrievedby anydecision ondisciplinary matter hemayappeal, within 7days, totheCouncilof Ministers thedecision of which 10 is to be final (legulation 20

(2)). An officer above the rank of Superintendent B, may appeal under regulation 38, within 7 days to the Council of Ministeis, the decision of which is, again, final. There is, therefore, in substance, no difference between thetwo Regulations, except that they refer to diffeient 15 ranks ofofficers. Theprocedureandfinaleffect isinbothcases the same. In Stassinopoulos "Law of Administrative Acts" (1951 Ed.) it is stated at page 227 that formalities must be classified as essential and mere formalities, and that only thecontravention 20 of anessential formality rendersanactliable toannulment. At thefollowingpagetheauthortriestomakeadistinctionbetween the two classes of formalities. As he states, it is not always easy to draw the line, but as a general lule, formalities set up by circulars or other administrative regulations are not 25 essential, whilst those introduced by law are so treated. He finally concludes atpp.228,229 thattheJudges before deciding as to whether a formality is a mere one or an essential one, should consider its importanceand the effect that its omission has upon the compliance of the administration with the law. 30 Lastly, hementions,at page 229,thatthenon-compliancewith the same formality may not always lead to the annulment of the act, but only when, having regard to the special circum­ stances, such non-compliance really affects the guarantees set up for the legality of the act. 35 In the case of Christou v. Republic

(1980)3 C.L.R. 437 at p. 448, it was held that only material niegularity can be relied on as a ground for annulment of the relevant administrative action. In the present case it is my view that even if the Council of 1077 Sawides J. Choraitis v. Republic

(1984)Ministers was labouring under the wrong impression that the applicant was a "senior officer" within the meaning ofthe Regulations, this has no bearing on its decision to dismiss the appeal, since its task, sitting as a Court of appeal, was to consider the legality and reasonableness ofthe decision appealed from, which 5 it did. In the circumstances, I cannot really see in what way theresultof suchdecision mighthavebeenaffected ifthe Council of Ministers did not refer to regulation 38 but to regulation 20

(2)since what it had to consider was the correctness of the decision before it. It must also be borne in mind that the 10 reference to the wrong Regulation does not at all affect the reasoning of the decision. The Council of Ministers did not rely on it to issue its decision. It was only a formal reference to the Regulation under which the appeal was made and it does not at all form pait of the leasoning of the decision. 15 For the above reasons I find that the mere reference to the wrong Regulation under which the appeal was made was not, in the circumstances of the present case, a contravention of an essential formality leading to the annulment of the subjudice act or decision. In the lesult, this ground fails. 20 Having dealt with part A of the prayer, I am now coming to examine part B, that is, whether the decision to withhold applicant's emoluments was validly taken. Counsel has argued that the withholding of the emoluments is another form of punishment, additional to the one imposed by the Disciplinary 25 organ and should be compatible with the one imposed. That since the fine imposed to the applicant was that of £20, the withholding of the whole sum of his emoluments deducted during the period of his interdiction, amounting to £600 is disproportionate to the fine of £20, and totally unreasonable, 30 in the circumstances. Regulation 23(

1. f)which makes provision about the said matter reads as follows: "(
2. f)any such member, who having been interdicted from duty, returns to duty shall leceive, as from the date of his 35 interdiction, the pay and allowances to which he would have been entitled by viitue of the Police (General) Regulations, 1958, or any regulations amending or substituted 1078 3 C.L.R. Choraitis t. Republic Savvides J. for the same made under the Police Law, 1958, and then in force, but for his interdiction from duty, if— 5 (
3. ui)he has been punished by withholding, stoppage or deferment of increment, a fine not exceeding ten days' pay, severe reprimand, reprimand or admonition, unless the Chief of Police directs that he shall not receive the said pay and allowances;" The phrase "unless the Chief of Police directs that he shall not receive the said pay and allowances" denotes an exercise 10 of discretion. It has been said, time and again, that this Court cannot interfere with the discretion of administiative organs once such discretion has been exercised properly. The Couit, however, must be in a position to exercise control as to whether the discretionary power was exercised properly. And for this 15 reason, the decision of an organ exercising discretionary powers must be duly reasoned and proper records should be kept for the purpose of enabling the Court to exercise such control. In the present case no written record has been kept and there is no evidence at all showing what the Chief of Police took 20 into account in the exercise of his discretion. Furtheiraore, no reasons at allare given, nor they can beinferred fiom thefile as to how and on what considerations he decided to withhold the emoluments of the applicant, which were deducted during the period of his interdiction. In the absence of proper records 25 this Court is not in a position to exercise any control at all as to whether the discretion of the Chief of Police was properly exercised. (See Georghiadesv. Republic

(1980)3 C.L.R. 486, 490, Bagdades v. Central Bank

(1973)3 C.L.R. 417). Therefore, in the absence of such reasoning, this part of 30 the recourse succeeds. In the result, this recourse succeeds partly, and the decision of the Chief of Police to withhold the part of the emoluments 1079 Sawides J. Cboraitis r. Republic

(1984)deducted during the period of his interdiction, amounting to about £600, is hereby annulled for lack of any reasoning. In the circumstances of the caseand asthe recourse succeeds only partly, I make no order for costs. Subjudice decision partlyannul· led. No order as to costs. 1080 5