3 CX.R. 1984 October 13 [PIKIS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION CHRISTOS SOPHOCLEOUS, Applicant, v. THE ELECTRICITY AUTHORITY OF CYPRUS, Respondents. (Case No. 232/82). 5 10 Disciplinary offences—Public Corporations—Discipline at, should be exercised in accordance with settled code, having legislative effect—Disciplinaryjurisdiction over employee of PublicCorporation—Exercised under draft disciplinary Code which was not published in the official Gazette or promulgated as a piece of Secondary legislation—Since rule-making power was entrusted tothe Corporation, by virtueofsection3ofthePublic Corporations (Regulation of Personnel Matters) Law, 1970, publication was essential for its validity—Therefore disciplinary ptrisdiction was exercised in a manner contrary to law and outside itsprovisions—And every act founded thereon was tainted with the illegality of the procedure followed. Subsidiary legislation—Needfor publication of—Article 82 of the Constitution and section 7 of the Interpretation Law, Cap. I. 15 20 The applicant, an employee of the respondents, was tried for a disciplinary offence, convicted and ordered to retire. Disciplinary jurisdiction was exercised in accordance with a decision ofthe Board of theAuthority, dated 11.6.1974 (Decision 3077), whereby disciplinary power over employees of the Authority would thereafter be exercised along the lines earmarked ina draft disciplinary code under consideration bythe Authority. Neither the above decision nor the draft rules temporarily adopted thereby were,published in the gazette or promulgated as a piece of secondary legislation. 1089 Sofodeoos v. E.A.C.
(1984)Counsel for the applicant mainly contended that the disciplinary proceedings against,the applicant were wholly abortive becausejurisdiction was assumed and exercised contrary to the provisionsofthelaw,namely s.3ofthePublicCorporations(Regulation of Personnel Matters) Law, 1970(61/70). Inaccordance 5 with s.3 of this Law disciplinary competence by public corporations should be exercised in accordance^.with Regulations to be approved by individual corporations. In the submission of applicant, disciplinary jurisdiction could not be exercised in any manner other than in accordance with Regulations pro- 10 perly enacted. Held, that discipline should be exercised in accordance with a settled code approved in advance; that discipline at public corporations is as important as discipline in other branches of public service; that it is a"matter that concerns not only the 15 authority but the public at large; that it was, therefore, in the natureofthingsproperthattheHouseofRepresentatives should' ordain that discipline at public corporations should be exercised in accordance with a.settled code having legislative effect; that since rule-making powerwasentrusted tothe corporation, 20 like every piece of subsidiary legislation, publication was essential for its validity; that in fact in the case of subsidiary legislation the need for publication is all the greater in order to ensure that such legislation is confined within the bounds set by the enabling law; that, therefore, disciplinary jurisdiction 25 was exercised, in this case, in a manner contrary to law and outside its provisions, with the corollary that every act founded thereon, like the subjudice decision, was tainted with the illegality of the procedure followed; and that, accordingly, the sub judice decision must be set aside. 30 Subjudicedecision annulled. Cases referred to: Constantinou v. CY.T.A.
(1980)3 C.L.R. 243 at p. 252; ' Arsalidesv. CY.T.A.
(1983)3 C.L.R. 510; Ploussiou v. CentralBank
(1983)3 C.L.R. 398; Vakis v. Republic
(1984)3 CX.R.
- Recourse. Recourse against the decision of the respondents whereby 1090 35 3 C.L.R. Sofocleous v. E.A.C. applicant was convicted of a disciplinary offence and ordered to retire. A.S. Angelides,for the applicant. G.P. Cacoyiannis, for the respondents. 5 Cur.adv. vult. PIKISJ. read thefollowingjudgment. Thefirstand foremost issue is the legality of the rules or practice of the Authority upon which applicant wasinvestigated and, subsequently tried, for a disciplinary offence. Ultimately, he was convicted and 10 ordeied to retiie. Disciplinary jurisdiction was exercised in accoidance with a decision of the Board of the Authority, dated 11.6.1974 (Decision 3077), whereby disciplinary power over employees of the Authority would thereafter be exercised along the lines earmarked in a draft disciplinary code under 15 consideration by the Authority. Neither the above decision northedraft rulestemporarilyadoptedtherebywerepublishedin the gazette or piomulgated as a piece of secondary legislation. It is the case for the applicant that disciplinaiy proceedings against himweiewholly abortive becausejurisdiction wasassu20 med andexercisedcontrarytotheprovisionsofthelaw,namely s.3ofthePublicCoiporalions(Regulation ofPeisonnelMatters) Law, 61/
- In accordance with s.3, disciplinaiy competence by public corporations should be exercised in accoidanee with Regulations to be approved by individual coiporations. In 25 the submission of applicant, disciplinary jurisdiction could not be exeicised in any manner other than in accoidance with Regulationspropetlyenacted. Certainly, therewasno warrant in law to bypass the provisions of the law by evolving, as the lespondentsappaiently did, a procedure in substitution thereof. 30 In essence, s.3 delegated to the respondent Authority rulemaking power in relation to disciplinary proceedings and, as such, it ought to have been validated, like any other law, by publication in the official gazette. In ieply, lespondents submitted, the exercise of discipline 35 overemployeeswasaninternumoftheAuthorityand, likeevery internal act, it need not see light by publication. They cited the decision of A. Loizou,J., in Constantinou v. CY.T.A.*
(1980)3 C.L.R. 243, 252; 1091 Pikis J. Sofocleous v. E.A.C.
(1984)as direct authority for the position adopted. They added, theproceduretheyfollowed wasfashioned totheneedsofnatural justice and took full account of the rights of employees of public bodies. Theapplicant disputed that therules ofnatural justicewerefollowed inhiscase,contendingthey wereinfringed 5 by the participation in the deliberations of the Authority of the officer who carried out the preliminary investigation, and other persons that had no locus standi in the decision-making process of the respondents. The effect of Constantinou, supra, was somewhat reduced by 10 the outcome of the appeal. The decision was revoked and the Authority undertook to reconsider the matter. Sofar as may be gathered from the record, revocation of the act sustained at first instance, was made with the sanction of the Full Bench of the Supreme Court. Following the outcome of the appeal 15 in Constantinou, a disciplinary code was enacted by CY.T.A. by publication in the gazette*. The decision in Constantinou comes in direct conflict with another decision of the Supreme Courtoffirstinstance,namelythat ofStylianides,/., inArsalides v. CY.T.A.** In Arsalides, supra, it was held, as I construe 20 the case, that Regulations of a public corporation governing discipline, are not an internum of the Authority but a matter of public law that cannot be validated except by publication in the official gazette. The decision in Arsalides wasforeshadowed by another deci- 25 sion of this Court, that of Ploussiou v. The Central Bank***, that laid down that as a matter of constitutional and statute law, notably the provisions of Article 82 of the Constitution and s.7 of the Interpretation Law—Cap. 1, respectively, publication is a condition precedent to the validity of every law, 30 regulation, bye-law and, generally,every legislative act. Inthat case, I had opportunity to review the need for publication of legislativeinstruments under the Constitution and thelaw****. Section 7—Cap. 1 of the Interpretation Law, categorically lays down that every instrument made or issued under-the 35 " * See, Official Gazette of 26.7.1982—Notification 220. *·
(1983)3 C.L.R. 510. ·**
(1983)3 C.L.R. 398. · * · · See, also, Vakis v. The Republic,
(1984)3CL.R. 952; 1092 3 C.L.R. Sofocleous v. E.A.C. Pikis J . authority of any law must be published as a condition precedent to its validity. So, in terms of the law, authority to legislate for the regulation of discipline in public corporations, was delegated to the corporations themselves. The law laid down 5 two conditions for the exercise of disciplinary jurisdiction over the personnel of the public corporations:- 10 15 20 (
- a)Discipline should be exercised in accordance with a settled code approved in advance. Discipline at public corporations is as important as discipline in other branches of public service. It is a matter that concerns not only the Authority but the public at large. It was, therefore, in the nature of things proper that the House of Representatives should ordain that discipline at public corporations should be exercised in accordance with a settled code having legislative effect. (
- b)Rule-making power was entrusted to the corporation. Like every piece of subsidiary legislation, publication was essential for its validity, in fact in the case of subsidiary legislation, as I pointed out in Ploussiouand Vakis, the need for publication is all the greater in order to ensure that such legislation is confined within the bounds set by the enabling law. Disciplinary jurisdiction was exercised, in this case, in a 25 manner contrary to law and outside its provisions, with the corollary that every act founded thereon, like the sub judice decision,wastainted with theillegalityof theprocedure followed. In view of the outcome of this recourse, it is unnecessary to examine any other aspect of the case bearing on the merits of 30 the complaint and alleged breaches of natural justice. In the light of the above, the recourse succeeds. The sub judice decision is set aside. Let there be no order as to costs. Subjudice decision annulled. No order as to costs. 1093