clr/1984/1984_3_285.pdf

(1984)Pensions Law, Cap. 311. His application was dealt with and dismissed by the Council of Ministers and hence this recourse. Counsel for the applicant contended: (

1. a)That the Council of Ministers had no discretion under regulation 45 to decide whether to grant or not a 5 pension oranyotherretirementbenefit totheapplicant; (
2. b)That the discretion of the Council of Ministers was exercised wrongly in that the applicant was the only policeman to whom retirement benefits were not granted. (
3. c)That the Council of Ministers took into consideration the contents of para. 3 of the submission to it, that is that applicant was dismissed, in 1973, for reasons of non-loyalty to the State and was re-employed in 1974 duringthegovernmentofthecoupd'etat; andthatno 15 chargeswereever brought against himconcerningsuch accusation and that he was never given the chance to answer them and defend himself. (
4. d)That the sub judice decision was not duly reasoned. Regarding contention (
5. b)above Counsel mentioned the case 20 of another police officer to whom allegedly retirement benefits were granted under the same circumstances; but he produced no material or evidence to establish this allegation. Held,

(1)that theright to apensionunder regulation 45isnot an absolute and an unqualified one and that the Council of 25 Ministers has a discretion in the matter under s.7 of Cap.311.

(2)That in the absence of any evidence establishing discriminatory treatment the contention regarding discrimination must be rejected. Held, further, that on the material before this Court and the 30 facts taken into consideration by the Council of Ministers, including the criminal and disciplinary record of the applicant and the last sentence of imprisonment imposed upon him after his conviction on serious charges and his whole conduct in the police force it was reasonably open to the Council of Ministers 35 totakethesubjudicedecisionandthatithasnotbeenestablished that theCouncil of Ministersexercisedits discretion wrongly, or 286 10 3 C.L.R. Sawa v. Council of Ministers contrary to Law, or that it has, in any way, acted in abuse or excess of its powers. 5 10 15 20

(3)That the allegation that the applicant wasnever charged for any offences either criminal or disciplinary and that he was not giventhechancetodefend himself, cannot stand, sincehedid not challengethevalidity ofhisdismissalin 1973; thatinfact by not challenging suchdecision, he appears tohave accepted it and it is now a fact within his knowledge forming part of his police record; accordingly contention (c) must fail.

(4)That the reasoning of an administrative decision may be supplemented by the respective files of the administration and the other material before the Court; that in the present case, there is enough material in the submission to the Council of Ministers and the documents attached to it from which the reasoning of the decision may be derived; accordingly contention (d) must, also, fail. Application dismissed. Cases referred to: Sawa v. Republic

(1981)3 C.L.R. 599; Sawa v. Republic

(1979)3 C.L.R. 250 at pp. 254-256; Constantinou v. Republic

(1984)3 C.L.R. 456. Recourse. 25 Recourse against the decision of the respondent dismissing applicant's application for retirement benefits on his being required to lesign. K. Koushios, for the applicant. N. Charalambous-, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. 30 SAWIDES J. read the following judgment. The applicant by this recourse challenges the decision of the respondent communicatedtohimby letterdated 12.7.1978wherebyhisapplication for retirement benefits on his beingrequired to resign, was dismissed. The applicant was a member of the Cyprus Police Force. He 35 enlisted in the Force on 4.2.64 and with the exception of a period as from 1.8.73 till 16.7.74 when he was suspended from the Police Force, he was a member of the Force till 4.2.77 when he 287 Sauides J. Sawa v. Council of Ministers

(1984)was arrested for participation in an unlawful assembly and riot outside the premises of the American Embassy which took place in the summer of 1974in thecourse of whichtheAmbassador of the United States was murdered. Together with a number of other persons he was prosecuted and charged before the Assize 5 Court withanumber of offences amongstwhichmurder, carrying firearms and riot. On 20.5.77 he pleaded guilty to the offences ofriot and unlawful assembly and wassentencedtoeightmonths' imprisonment. He was detained in prison till 17.8.77 when he was released after a free pardon from the Resident of the Re- 10 public. As a result of his conviction disciplinary proceedings were taken against him and the sentence of dismissal from the Police Force was imposed on him. Cmappeal, his punishment was substituted on 24.9.77 with that of requirement to resign. On 16.1.78 the applicant applied through his counsel, by 15 letter addressed to the Chief of Police, for the grant of pension on the basis of regulation 45 of the Police (Discipline) Regulations and section 7 of the Pensions Law, Cap.

1. The Chief of Police referred his application to the DirectorGeneral of the Ministry of Interior, accompanied by a letter of 20 his, dated the 7th February, 1978 in which, besides making reference to the criminal and disciplinary proceedings against the applicant, he proceeded to mention, in paragraph 3, the family status of the applicant, the date of his entry in the Police Force and, also, the fact that his services were terminated on 1.8.73in 25 the public interest and that he resumed his duties on 16.7.74 during the government of the coup d' etat. Finally, in para. 4 of the same letter the Chief of Police sets out all the previous offences and convictions of the applicant, both criminal and disciplinary witharecordofthedisciplinaryproceedingsattached 30 thereto. The matter was then referred to the DiTector-General of the Ministry of Finance, who, by letter dated the 27th May, 1978, informed the Director-General of the Ministry of Interior that ** -__ the appropriate organ to decide whether any retire- 35 ment benefits should be granted to him is the Council of Ministers. In order to assist the Council of Ministers in the examination ofhisapplication all material relevant to hiscriminal and disciplinary prosecution as well as his disciplinary record in the 288 3 C.L.R. Sawa v. Council of Ministers Sawides J. police force should be put before it." A submission was, as a result, prepared by the Ministry of Interior and put before the Council of Ministers on 23.6.78, in which mention was made about both the criminal and disciplinary convictions of the 5 applicant, his application for the grant of his benefits to him and the steps taken so far for such purpose, the relevant Police Regulations and the amount of the benefits to which the applicant would have been entitled if his application was granted. Copies of the application of the applicant, of the report of the 10 Chief of Policeand of theletter of the Ministry of Finance,were attached to this proposal. In paragraph 3 of the proposal it is stated that - 15 "It is also attached as appendix*B\ a policereport in which the circumstances under which he was sentenced to 'requirement for resignation'. In the said report is also set out hisburdened disciplinary record aswell asthefact of his dismissal on 1.8.73in the public interest for non-loyalty to the State." The Council of Ministers considered the matter on 29.6.78 20 and decided (decision No. 17.028) to dismiss his application. The decision of the Council of Ministers was communicated to theapplicant by letter of the Director-General ofthe Ministry of Interior dated 13.7.78,who,asaresult,filed thepresent recourse, which is based on the following grounds of law: 25 30 " 1 . The act and/or decision of the respondents was taken in contravention of the relevant provisions of the Pensions Law, Cap. 311 and Regulation 45 of the Police (Discipline) Regulations 1958 -
3. The above act and/or decision lacks sufficient and/or due reasoning.
4. The above act and/or decision was taken under circumstances amounting to excess or abuse of powers, taking into consideration the personal circumstances of the applicant and the special circumstances of the case." 35 The case was adjourned many times, on the application of counsel, awaiting the result of another recourse on the same point. Judgment in that recourse was delivered on 26.6.79 by which the recourse was dismissed. An appeal wasfiled against 289 Sanities J. Savra v. Council of Ministers

(1984)it which was finally concluded and judgment was given on 3.12.80 (see Sawa v. Republic

(1981)3C.L.R. 599)whereby the appeal was allowed on the ground of violation of the rules of natural justice, in the particular circumstances of that case, but the question whether in caseswhere the punishment of "requirement to resign" is imposed, retirement benefits may be refused, was left open. 5 Counsel for applicant in their written address have argued that the meaning of regulation 45 of the Police (Discipline) Regulations is that the Council of Ministers has no discretion to 10 decide whether to grant or not, retirement benefits to members of the Police force to whom the sentence of "requirement to resign" is imposed as a disciplinary punishment and that the construction of such regulation entitles such officers to obtain their retirement benefits; The words "„_. and shall not de- 15 prive the member of his right to a pension " are clear and imperative and preclude the application of sections 6(f) and 7of Cap. 311 and, further, that regulation 45 should prevail over such provisions asbeinga special lawwhilst Cap. 311isageneral law. Alternatively, counsel argued, even if the Council of 20 Ministers had a discretionary power, this power was exercised wrongly and the case of the applicant was the only case of a policeman to whom such benefits were not granteduponhis requirement to resign. Counsel lastly argued that the Council of Ministers in taking its decision was influenced by extraneous 25 factors, that is the submission of the Ministry of Interior on the matter, dated 23.6.78 and especially the contents of paragraph 3 of such submission and more specifically, the statement thatthe applicant was dismissed, on 1.8.73, for not being loyal to the State. It is the contention of counsel for applicant that no 30 charges concerning this matter were ever brought against the applicant who, therefore, had no opportunity to answer them and defend himself and for this reason this fact should not appear in the submission to the Council of Ministers and its inclusion in it has influenced the minds of the members of the 35 Council adversely. Counsel for the respondent, on the other hand, submitted that the Council of Ministershad a discretion, under regulation 45, to decide whether to grant or not retirement benefits to the applicant, adopting in this respect thejudgment of Malachtos J. 40 290 3 C.L.R. Sawa v. Council of Ministers Sawides J . in the case of Sawa v. Republic

(1979)3C.L.R. 250, at pp. 254

1. Hefurther contendedthatthe applicant did not discharge theburden of proof cast upon him to show that the Council of Ministers exercised its discretionary power wrongly. With 5 regard to the allegation that the Council of Ministers was in­ fluenced by extraneous factors, counsel argued that the fact that the applicant was dismissed, in 1973, for reasons of public interest appeared in thefile of the applicant and formed part of his personal record in the Police Forceand,as such, the Ministry 10 of Interior was justified to include it in its submission together with the report of the Chief of Police. Counsel further main­ tained thatthedecision of therespondent is a duly reasoned one. such reasoning being supplemented by the material in the file which was before the Council of Ministers. 15 The first point that falls for consideration in this case, is the construction of regulation 45, and, more specifically, whether the Council of Ministers has a discretion, under this regulation, to decide whether to grant or not a pension or any other retire­ ment benefits to policemen who have been required to resign as 20 a result of disciplinary proceedings against them. Regulation 45 of the Police (Discipline) Regulations (1958 1977) reads as follows: 25 30 "
2. Els περίπτωσιν καθ* ήν ή δυνάμει των παρόντων Κανονισμών επιβληθείσα els μέλος της Δυνάμεως ποινή δια πειθαρχικάν αδίκημα είναι ή της Οπό τοϋ έκδικάσαντος τό αδίκημα απαιτήσεωςπρος τό μέλος δια παραίτησιν, ή συνε­ πεία τηςτοιαύτης ποινής παραίτησις τοΰ μέλους6άθεωρήται, διά σκοπούς συντάξεως, ώς τερματισμός υπηρεσίας προς τό δημόσιον συμφέρον καΐ δέν Θάάποστερήτό μέλος τοΰδικαιώματός του δια σύνταξιν χορηγουμένην επί της ρηθείσης βάσεως τοϋ τερματισμού υπηρεσίας προς τό δημόσιον συμ­ φέρον". The English translation is as follows: 35 ("In case the punishment imposed by virtue of these Regulations on a member of the Forcefor a disciplinary offen­ ce is the one of requirement to resign, the resignation of the member following such punishmentwill,for pensionpurpo­ ses, be considered as termination of services in the public interest and will not deprive the member of his right to a 291 Savvides J. Sawa v. Council of Ministers

(1984)pension granted onthesaidbasisoftermination ofservices in the public interest.") Thesamepoint has arisen before, in the caseof Sawa v.Republic (supra), where Mr. Justice Malachtos, found that regulation 45 should be construed in such a manner as to give a 5 discretion to the Council of Ministers to decide, under sections 6(f)and7ofthePensionsLaw,Cap.311,whethertogiantornot retirementbenefitsincasesastheoneinhand. Thejudgmentof Malachtos, J. reads in this respect, at pp. 255, 256, as follows: "Counsel for applicant also submitted that sincetheappli- 10 cant's disciplinary punishment was that of 'requirement to resign*, under regulation 45such punishment isconsidered for pension purposes as termination of employment in the public interest and, consequently, the applicant is entitled asofrighttopension undertheprovisionsofsection 6(

1. f)of 15 the Pensions Law. This section reads as follows: '6. No pension, gratuity or other allowance shall be granted under this Law to any officer except on his retirementfromthePublicServicein one of the following cases: (
2. f)In the case of termination of employment in the public interest as provided in this Law.' Counsel for applicant further submitted that the words 'asprovidedinthisLaw'appearinginsection6(f)oftheLaw, refer tothecomputationofthepensionandnottoanyother 25 provision of the Law. Ontheotherhand, counselfor therespondentssubmitted that the second part of regulation 45must be read in conjunction with the last part of section 7 of the Law, which gives absolute discietion to the Council of Ministers to 30 grant pension, gratuity or other allowance as it thinksjust and proper. Section 7 reads as follows: '7. Where an officer's service is terminated on the ground that, having regard to the conditions of the 35 public service, the usefulness of the officer thereto and 292 20 3 C.L.R. Sawa ν. Council of Ministers Savvides J . all theothercircumstances ofthecase,suchtermination isdesirable inthepublicinterest,andapension,gratuity or other allowance cannototherwise be granted tohim under the provisions of this Law, the Governor in Council (now the Council of Ministers) may, if he thinksfit, grantsuchpension,gratuity orotherallowan­ ceashethinksjustandproper,notexceedinginamount that for which the officer would beeligible if heretired from the public service in the circumstances described in paragraph (
3. e)of section 6 of this Law.' 15 20 25 I have considered the arguments of counsel on the first ground of law and 1 cameto theconclusion that regulation 45 does not giveto a member of the Police Forcewho was required to Tesign, an absolute right to receive pension, gratuity or otherallowances. Thesentenceimposed in the case in hand,under regulation 45 is considered for pension purposes as termination of employment in the public inte­ rest and so under section 6(
4. f)of the Pensions Law, Cap. 311, the applicant is entitled to pension as provided in this Law. Theexpression 'as provided in this Law' appearing insection 6(
5. f)doesnot meanthecalculation andmachinery under which pension, gratuity and other allowances are collected, as counsel for applicant submitted, but theright tosuchbenefits andsotheprovisions ofsection 7oftheLaw comeintoplay. Itis clear thatby virtue of section 7of the Law theCouncilof Ministersisvestedwiththe discretionary powers to grant or refuse pension benefits." The judgment of Malachtos J. was appealed from and the relevant part of thejudgment of the Full Bench of this Court 30 (Sawav. Republic

(1981)3C.L.R. 599)debvered by Triantafyllides, P., is to be found at page 601 and reads as follows: 35 "One of the points in issue is whether on a proper con­ struction of the aforementioned regulation 45it was rightly held by thelearned trial JudgethattheCouncilof Ministers had a discretionary power to refuse altogether a pension to the applicant. Thisis anissuewhich isnotfreefrom difficulty and,asin 293 &mides J. Sawa v. Council of Ministers

(1984)thepresentcasewe thinkthatwe donothave to pronounce finally on it, we have decided to leave it open." Nevertheless, the Full Bench proceeded to resolve the issue before it, ontheassumptionthattheCouncilof Ministers hada discretionary power to grant or refuse pension benefits and allowed the appeal on an entirely dUTerent ground in thatthere was an infringement of the basic rule of natural justice which required that theappellant should have been given anopportu­ nity to be heard in defence of certain accusations against him. 5 Ihaveconsideredveiycarefully boththeargumentsof counsel 10 as well astherelevant law andtheRegulations,and Iam inclined y to agree with the view of my learned brother Malachtos. In myview,thecriticalword istheword "right" inthephrase"and willnotdeprive thememberof his right toa pension grantedon the said basis of termination of services in the public interest." 15 If such a right was an absolute andanunqualified one, I would havenohesitationinsayingthat theCouncilof Ministershadno discretioninthematter. Thereis,however,nothingeitherinthe Law ο/theRegulations,toindicatethatsucharightis absolute. On the contrary,there was till 1967, a provision in section 5

(1)20 of Cap. 311,totheeffect that"Noofficer shall have an absolute rightto compensationfor pastservices ortopension,gratuity or other allowance." •This part of section 5, has, however, been repealed by Law 9/67,without beingreplaced,withtheresult thatsection 5 isnow 25 left with only one paragraph and Teads as follows: "

1. Where it is established tothesatisfaction of the Coun­ cil of Ministers thatan officer hasbeenguilty of negligence, iiregularity or misconduct, the pension, gratuity or other allowance may be reduced or altogether withheld." 30 Themeaningof section 5,asit now stands,is thatpensionetc. is granted, unless the Council of Ministers is satisfied that the officer concerned has been guilty of misconduct etc. as stated above. The wording of regulation 45 does not preclude the appli- 35 cation of the provisions of Cap.
2. Theassimilation of "requirementtoresign" with"termination of services in the public interest" in the said Regulation, for 294 3 C.L.R. Sawa v. Council of Ministers Sawides J . pension purposes, simply has the meaning that the applicant's pension willnot bewithheld, asit would have happened otherwise,buthewillbegiventhechancetoreceiveit,asinthecaseof termination of services in the public interest, if the Council of 5 Ministers deems fit. The approach of Malachtos, J., in Sawa v. The Republic (supra)ontheconstruction oftherelevantprovisionsoftheLaw and regulation 45 has been adopted by A. Loizou, J., in the recent case of Andreas Constantinou v. TheRepublic (Case No. 10 316/81 not yet reported)*in which the issuesinvolved werethe same and in which he concluded that any other interpretation would leadtoabsurdityinthesensethat apersonsubmittinghis resignation might be deprived of his pension rights, whereas a person required to resign as a result of a disciplinary oifence 15 would be entitled as of right to the receipt of a pension. In my view, all the considerations applicable in the case of termination of services in the public interest, under Cap.311, are applicable in the present caseand I therefore find that, for the reasons I already explained the Council of Ministers had a 20 discretion, under section 7 of Cap. 311,in the present case, to decide or not whether to grant retirement benefits to theapplicant. This ground of counsel for applicant, therefore, fails. Thenextpointtobeconsideredisthecontention ofcounselfor 25 appUcant that the discretion of the Council of Ministers was exercised wrongly in that the applicant wasthe only policeman to whom retirement benefits were not granted under the same circumstances. He mentioned, in this respect, the case of another police officer to whom, according to his allegation re30 tirement benefits were granted under the same circumstances. Counselfor respondent,however,saidinhiswrittenaddressthat thecaseofthatpoliceofficer wasdifferent tothatoftheapplicant. Nomaterialwasproduced byeithersideregardingthesaidcase, nor did counselfor applicantrequestcounselfor therespondent 35 to produce any material or evidence in connection therewith. In theabsence of anyevidence establishing 3uchcUscTiminatory treatment I haveno other choice but to reject it. Though the * Now reported in

(1984)3 C.L.R. 456. 295 Savvides J. Sawa v. Council of Ministers

(1984)ground of bad exercise of discretion on the pan of the Council of Ministers was based solely on the above allegation which, as already found, has not been substantiated, nevertheless, I shall proceed to examine whether the discretion of the Council of Ministers in refusing applicant's application, was wrongly 5 exercised. On the material before me and the facts taken into consideration by the Council of Ministers,including thecriminal and disciplinary record of the applicant and the last sentence of imprisonment imposed upon him after his conviction on serious charges and his whole conduct in the police force, I have come 10 to the conclusion that it was reasonably open to the Council of Ministers to take the subjudice decision and that it has not been established that the Council of Ministers exercised its discretion wrongly, or contrary to Law, or that it has, in any way, acted in abuse or excess of its powers. 15 Another point raised by counsel for applicant is that the Council of Ministerstook intoconsideration thecontentsof para. 3 of the submission to it, that is that applicant was dismissed, in 1973,for reasons ofnon-loyalty tothe State andwas ie-employed in 1974 during the government of the coup d'etat. Counsel said 20 in this respect that no charges wc.e ever brought against the applicant concerning such accusation and that he was never given the chance to answer them and defend himself. The fact of applicant's dismissal in 1973 and re-employment in 1974, appeared in his personal file and formed part of his 25 servicerecord to the Police Forceand as such the Chief of Police and the Ministry of Interiorwerejustified in mentioningit. The allegation that the applicant was never charged for any offences in such respect, either criminal or disciplinaiy and that he was not given the chance to defend himself, cannot stand, since he 30 did not challenge the validity of his dismissal in 1973. In fact by not challenging r.uch decision, he appears to have accepted it and it is now a fact within his knowledge forming part of his police record. In this respect his case diifers from that of Sawa \. Republic(supra) where it was alleged in the submission 35 totheCouncil of Ministersthattheapplicant therewas a member of EOKA Β whilst he was never informed of such accusations against him and not given the chance of offering an explanation. In the present case, the applicant was actually dismissed in 1973 for similar reasons and although he knew or was deemed to have 40 296 3 C.L.R. Sawa v. Council of Ministers Sawides J. known the reasons for his dismissal he did not challenge its validity. This ground also fails and is dismissed. The last ground of law raised by counsel for applicant is that of the reasoning of the sub judice decision. It has been said 5 many times bythis Court that thereasoning of an administrative decision maybesupplemented bytherespectivefiles oftheadministration and the other material before the Court. In the present case,thereisenough material in thesubmissiontothe Councilof Ministers and the documents attached to it from which the 10 reasoning ofthe decision may bederived. Thisground is,theiefore, also dismissed. In the result, this recourse fails and is dismissed, but in the circumstances I make no order for costs. 15 Recourse dismissedwithno order as to costs. 297