(1984)1984 March 8 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDREAS CONSTANTINOU, Applicant, THE REPUBLIC OF CYPRUS, THROUGH THE COUNCIL OF MINISTERS AND OTHERS, Respondents. (Case No. 316/81). Pensions and gratuities—Police Force—Requirement to resign of member of, following his disciplinary conviction—No absolute right to receivepension—Regulation 45 of the Police (Discipline) Regulations 1958to 1977—Sections 6(/)andl of thePensions Law, Cap. 311. 5 Pensions Law, Cap. 311—"As provided in thisLaw" insection 6(
- f)of the Law-Meaning. The applicant, a police constable,was found guilty, on his own plea, of the disciplinary charge of absence without leave and was required to resign. The Council of Ministers rejected his application for the grant of pension to him and hence this recourse, 10 Counsel for the applicant mainly contended: (
- a)That the sub judice decision was contrary to regulation 45* of the Police (Discipline) Regulations 1958 to 1977. 15 (
- b)That there has been a wrong exercise of discretion by the Council of Ministers in refusing to giveto the applicant a pension. Section 6(
- f)ofthe Pensions Law, Cap. 311 provides as follows: "No pension, gratuity or othtr allowance shall be granted Regulation 45 is quoted at pp. 459-460 post. 456 20 Constantinou v. Republic 3 C.L.R. under this Law to any officer except on his retirement froi the Public Service in one of the following cases: (
- f)In the case of termination of employment in the publi interest as provided in this Law". 5 10 15 20 25 Held,that theexpression "as provided in this Law" in para (t of section 6 of the Law cannot be confined ιο a particular pre vision of the Law but to thewhole of it and inthis respect sectio: 7 which deals with the question of pension, gratuity or othe allowance in cases of termination of services in the public interes is applicable also to cases under regulation 45 when the punish ment imposed for a disciplinary offence is the one of requiremen to resign: that the expression "will not deprive the member ο his rights to pension" appearing in regulation 45 does not tak away the discretionary powers of the Council of Ministers tha are given to it by section 7as thesaid expression inthis regulatioj is followed by the expression "on the basis of termination o; services in thepublic interest"and theword "basis" inthis expres sion means the powers - discretionary al that -that the Counci of Ministers has under section 7 of the Law; accordingly conten tion (
- a)must fail.
(2)That as the applicant had submitted his resignation, stayec away for a longtime from his duties without anyjustification am without leave his whole conduct was such that it could not bi successfully claimed that the Council of Ministers exercised itdiscretion in abuse orexcess of power or contrary to law; accor dingly, contention (b) must, also, fail. Application dismissed Cases referred to: Sawa v. Republic
(1979)3 C.L.R. 250; 20 Sawa v. Republic
(1981)3 C.L.R. 599. Recourse. Recourse against the refusal of the respondents to grant pension to the applicant. D. Lambides, 35 for the applicant. N. Charalambous, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. 457 Constantinou t. Republic
(1984)A. Loizou J. read the following judgment. The applicant enlisted in the Cyprus Police Forceon the 6th February, 1964, and between the 8th July, 1978 to the26th September, 1979,he was serving at Paphos. Onthe21st July, 1979, hewas required to resign by a First Instance Disciplinary Body, having been 5 found guilty, on his own plea, of the disciplinary charge of absence without leave in breach of the Disciplinary Code, regulation 7, para. 10, and regulation 18 of the Police (Disci pline) Regulations, 1958-
- The facts of thecase as they appear from thebundle of docu- 10 ments,exhibit 1,arethese: "Theaccused, P.C.2158 A.Consta ntinou,enlisted in the Police Forceon the 6.2.1974(thecorrect year must be 1964, as it appears from the Opposition). He served in various districts andonthe8.7.1978hewas transferred to Paphosand posted attheCriminalInvestigation Department. 15 On the 23.3.1979 he was transferred from the C.I.D. to the Reliefs where he worked until 12.6.
- Onthat date he sub mitted to the Chief of Police his resignation. Onthe following day, 13.6.1979, he obtained ten days leave of absence. After the expiration of the said leave, on the 23.6.1979 he obtained 20 another six days leave of absence and he should return at 0800 hrs. of the 29.6.1979 for service to the Ά ' Relief. The Officer in charge of Ά* Relief is Inspector P. Hadjicostis and Sgt. 853 was his assistant. Until 0855 hrs. of the 29.6.1979 the accused did notreportfor work andSgt. 853reportedhim. Onthesame 25 day, after instructions from the Divisional PoliceCommander Paphos, Inspector Hadjicostis found the accused and asked him why he did not report for work, the accused answered *I want to resign', and that he had submitted already his resign ation. A disciplinary case was opened against the accused 30 for absence from his duty without leave and on 30.6.1979 he was given FormP.215andtheaccused madethefollowing state ment: "I have submitted my resignation since some time". The accused has not reported until to-day for duty although his application for resignation was not approved by the Chief 35 of Police". His previous convictions consisted of the offence of improper behaviour committed on 1.5.1979(five counts) for which he was fined C£
- He said nothing in mitigation and in imposing the disciplinary sentence the presiding Officer said to him: "You have been found guilty on you own plea. The 40 offence is sufficiently serious. Your whole conduct shows a 458 3 C.L.R. 5 Constantinou v. Republic Λ. Loizou J. man who does not wish to stay in the Police Force. The Court cannot but impose on you the sentence of 'requirement to resign' ". The Divisional Police Commander, Paphos, in the exercise of his power as a Reviewing Officer by virtue of Disciplinary Regulation 18
(4)confirmed the First Instance decision. The applicant on the 4th February, 1981, applied to the Council of Ministers and asked "by virtue of the existing Police Regulations and in particular of regulation 45 whereby the right to pension of a Policeman required to resign for disciplinary 10 offences remains unaffected" that the long standing question of his demand for the payment to him of pension be dealt with. The Council of Ministers examined the submission made to it under No. 277/81 and by its Decision No. 20.489 of the -12.6. 1981 decided:15 20 25 30 "The Council considered the application on behalf of ex P.C.2158 A.Constantinou(Marmara)towhom was imposed the disciplinary punishment of the requirement to resign ation for the payment to him by virtue of Regulation 45 of the Police (Disciplinary) Regulations and Section 7 of the Pensions Law, Cap. 311, and Laws 17/60, 9 and 18 of 1967, 51 and 119 of 1968, 9/71, 65/73, 42/76, 38/79 and •2/81, of the retirement benefits, his rights to pension which. he has earned on the basis of his actual service and having taken into consideration all that has been presented during the meeting, as well as the record of the applicant, decided that his application should not be accepted". Upon this decision being communicated to the applicant by letter dated the 11th July, 1981, he filed the present recourse seeking its annulment and/or a declaration that the omission to grant him pension is null and that what was omitted ought to be performed. Regulation 45 of the Police (Discipline) Regulations, 1958 to 1977 reads as follows :- 35 "in case the punishment imposed by virtue of these Regulations on a member of the Force for a disciplinary offence 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 ser459 \. Loizou J. Constantinou v. Republic
(1984)vices 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". Section 6(
- f)of the Pensions Law, Cap. 311, in so far as relevant, reads as follows:- 5 "No pension, gratuity or other allowance shall be granted under this Law to any officer except on his retirement from the Public Service in one of the following cases: (
- f)In the case oftermination of employment in the public interest as provided in this Law". 10 The expression "as provided in this Law" naturally refers, nter alia, to its section 7 which reads as follows:"7. Where an officer's service is terminated by theCouncil of Ministers on the ground that, having regard to the conditions of the public service,the usefulness of the officer there- 15 to and all the other circumstances of the case, such termination is desirable in the publicinterest,andapension, gratuity or other allowance cannot otherwise be granted to him under the provisions of this Law, the Council of Ministers may, if it thinks fit, grant such pension, gratuity 20 or other allowance as it thinks just and proper, not exceeding in amount that for which the officer would be eligible if he retired from the public service in the circumstances described in paragraph (
- e)of section 6 of this Law". In Charalambos Sawa v. The Republic
(1979)3 C.L.R., >.250, Malachtos, J., trying the case in the first instance, held hat regulation 45 does not give to a member of the Police r orce who was required to resign an absolute right to receive iension, gratuity or other allowances;that thesentenceimposed, 30 -which was the same as the one in the case in hand—under egulation 45 is considered for pension purposes as termination •f employment in the public interest and so under section 6(
- f)f the Pensions Law, Cap. 311, the applicant is entitled to ension as provided by the said Law; that the expression "as 35 •rovided in this Law" appearing in section 6(
- f)does not mean he calculation and machinery under which pension, gratuity 460 25 3 C.L.R. Constantinou v. Republic A. Loizou J. and other allowances are collected, as counsel for the applicant in that case had submitted, but the right to such benefits and so the provisions of section 7of the Lawcomeinto play; that being so it becomes clear that by virtue of section 7 of the Law the 5 Council of Ministers is vested with discretionary power to grant or refuse pension benefits. The Full Bench of this Court which heard the appeal from the said judgment, in its judgment reported as Charalambos Sawa v. The Republic
(1981)3 C.L.R., p. 599, after commenting that 10 the issue whether the Council of Ministers has a discretionary power to refuse, altogether a pension to the appellant, was not free from difficulty and as in that case it did not think that it had to pronounce finally on it, left it open and proceeded to resolve the issue before it on the assumption that the Council 15 of Ministers_had a discretionary power in the matter. 1agree fully with the approach of Malachtos, J., hereinabove referred to on the construction of the relevant provisions of the Law and of regulation 45. The expression "as provided in this Law" in para, (f) of section 6of the Lawcannot be confined 20 to a particular provision of the Law but to the whole of it and in this respect section 7 which deals with thequestionof pension, gratuity or other allowance in cases of termination of services in the public interest isapplicable alsoto cases under regulation 45 when'the punishment imposed for a disciplinary offence is 25 the one of requirement to resign. The expression "will not deprive the member of his rights to pension" appearing in regulation 45 does not take away the discretionary powers of the Council of Ministers that are given to it by section 7as the said expression in this regulation is followed by the expression "on 30 the basis of termination of services in the public interest" and the word "basis" in this expression means the powers—discretionary at that—that the Council of Ministers has under section 7 of the Law. Any other interpretation would lead to absurdity in the sense 35 that a person submitting his resignation might be deprived of his pension rights, whereas a person required to resign u> a result of a disciplinary offence would be entitled as of right to the receipt of a pension. 461 . Loizou J. Constantinou v. Republic
(1984)Having disposed of the first ground of Law relied upon on «half of theappUcantinthisrecourse,Iturnnowtothe second me which is to the effect that therehas been a wrong exercise >fdiscretion by the Council of Ministers in refusing to giveto he appUcant a pension. On the facts and circumstances of 5 his case Ihave nodifficulty in dismissing this ground alsoinasnuch as the sub judice decision was reasonably open to it. [Tie applicant had submitted his resignation, stayed awayfor ι long time from his duties without anyjustification and with>utleave, and his whole conductwas such that it could not be 10 •uccessfully claimed that the Council of Ministers exercised its liscretion in abuse or excess of power or contrary to Law. For all the above reasons this recourse is dismissed, but in .he circumstances I make no order as to costs. Recourse dismissed with noorder 15 as to costs. 462