clr/1985/1985_3_11.pdf

(1985)trict Officer, acting iη his aforesaid capacity terminated the services of the appellant, by giving him one month's notice on the main ground that he refused ίο-attend for overtime work. The appellant protested against his dis­ missal and applied lor re-examination of his case. On 5 ihe 6th October, 1981, he was informed by (he District Officer that "his case has been re-examined with due care" but the original decision for dismissal could not be altered. The trial Judge dismissed his recourse, which challenged the validity of the termination of his services, 10 on the ground that his employment and the termination of his services were not falling within the domain of public law and they, could not, thus be made the subject cf a recourse under Article Μ6.1 of the Consti­ tution. Hence this appeal. Counsel for the respondents 15 conceded that the sub judicc decision should be annulled in case this Court rules that the sub judice decision falls within the domain of Public Law. Held, that taking into consideration the terms of the appointment of the appellant, as well as the fact 20 that he was given a month's notice upon dismissal by the respondent and all other relevant factors pertaining the circumstances of the present case this Court hold the view that the appellant was "regularly employed" Waterguard of the Government 25 Water Works Polemidhia-Yermasoyia; that as re­ gards the works of Government Water Works Po­ lemidhia-Yermasoyia, taking into consideration that they do exist and function for the last fifty years and that they are obviously Government Water 30 Works created in the public interest this Court hold the view that the Government Water Works Pole­ midhia-Yermasoyia arc to be regarded as "perm­ anent works of the Republic" in the sense of Ar­ ticle 122; and that, therefore, the employment of 35 the appellant falls within the definition envisaged by Article 122 as regards public service and there­ fore, his dismissal is a decision falling within the domain of Public Law; accordingly the appeal must be allowed. 40 Held, further, that the decision of 6.10.81 12 was reached Androkll v. Republic 3 C.L.R. aif after a new and thorough enquiry into new additional facts and it is therefore of an executory character and therefore justiciable. Comments: 5 We have not touched upon the amenity of anybody other than the Public Service Commission to concern itself with appointments and dismissals of permanent workers in the government service similarly positioned to the applicant. The matter has not been properly raised and nothing said in this judgment should be construed as expression of any opinion on the subject by this Court. Appeal allowed. Cases referred to: 10 Loizou and Another v. CY.T.A., 4 R.S.C.C. 48. Appeal. Appeal against the judgment of a Judge of the Supreme Court of Cyprus (A. Loizou, J.) given on the 20th December, 1983 (Revisional Jurisdiction Case No. 491/81) * where15 by appellant's recourse against the decision of the responcnts to terminate his services as a Water-Guard of the Government Water Works at Polemidhia—Yermasoyia was dismissed. E. Efstathiou, for the appellant. 20 A. Vladimirou, for the respondents. Cur. adv. vult. L. Loizou J.: The judgment of the Court will be delivered by Mr. Justice Loris. LORIS J.: The present appeal is directed against the 25 decision of a Judge of this Court whereby the recourse of the applicant was dismissed on a preliminary issue, the learned trial Judge having found that the object of the * Reported in

(1983)3 C.L.R. 1246. 13 Loris J. Androkll v. Republic

(1886)recourse was not in the domain of Public Law and there­ fore non justiciable. By means of the aforesaid recourse the applicant was impugning the decision of the respondents by virtue of which his services as Waterguard of the Government Water 5 Works of Polemidhia and Yermassoyia were terminated. The undisputed facts of the recourse in question may very briefly be thus stated: The applicant-appellant on 18.5.76 applied to the District Officer Limassol for appointment as Waterguard of the aforementioned Government Water Works and was 10 so appointed by the District Officer as from 24.5.76 on the terms which are set out in the letter to the District Officer addressed to the applicant on 21.5.76 (exh. 1— blue 3). It is important to note at this stage that para, (

1. e)of 15 the aforesaid letter states the following: "Generally the terms of your employment (except those referred to herein­ above) will be those of Government Workers except if other­ wise decided in the future by the Committee of the Government Water Works of Polemidhia and Yermassoyia." 20 On 20.4.77 a letter was addressed to the applicant signed by the "District Officer-Chairman of the Committee of the Water Works of Polemidhia and Yermassoyia" (exh. 1 —blue 4) whereby the decision of the Committee to alter the terms of remuneration and the hours of employment of 25 the applicant was communicated to him and he was there­ by invited to indicate his acceptance of the aforesaid altera­ tions in wrinting up to the 1.5.77. The applicant accepted the aforesaid alterations in writing; it should be noted here that para (
2. a)of the afore- 30 said letter provides "that all Waterguards will be remunarated as from 1.5.77 on the basis of scale 245X12—305 plus the lowest cost of living allowance of £30.655 mils monthly." On 27.8.81 the District Officer in his aforesaid capa- 35 city addressed a letter to the applicant (exh. 1—blue 8) terminating applicant's services as from 30.9.81 giving as Μ 3 C.L.R. Androkli v. Republic Loria J. one of the main reasons the refusal of the applicant to attend for overtime work when so ordered by the Director of the said Water Works. 5 10 15 The applicant through his advocate addressed a letter dated 29.8.81 (exh. 1—blue 10) to the District Officer in his capacity as Chairman of the said Water Works, protesting against his said dismissal and applied for re-examination of his case. The District Officer replied by a letter dated 6.10.81 (exh. 1—blue 18) informing the applicant that "his case has been re-examined with due care" but the original decision for dismissal could not be altered It is against this latter decision contained in the letter of 6.10.81 which is appendix A attached to the recourse that the applicant filed the present recourse on 19.12.81. Applicant relied on several grounds of law which are set out in his recourse and mainly stressed two points as follows: 20 A. The termination of the services of the applicant was effected by the District Officer himself, as admitted by the respondents, contrary to the provisions of regulation 4

(4)of the Government Water Works Polemidhia (Garilli) and Yermassoyia Regulations of 1975. (Vide C.G. 1230 of 31.10.75 part ΠΙ Notification 200). 25 The applicant maintained that the District Officer was an organ of no competence as the relevant powers accord­ ing to the aforesaid regulation were vested with the Committee and the Committee could not delegate its powers to the Chairman alone i.e. the District Officer. 30 B. The termination of the services of the applicant was made in direct violation of the rules of natural justice as the applicant was never called to state his version and put forward his own allegations. 35 The respondents in their opposition defended the decision in question as properly reached at according to the law, the provisions of the Constitution and the accepted principles of Administrative Law. It is significant to note 1< Loris J. Androkli v. Republic from the facts re.Mcd in opposition by the respondents following two points:

(1885)the (

1. a)The statement of the respondents contained in para.
2. fa)of the opposition whereby it is clearly stated that on the 26.9.77 the Committee of the Government Water Works Polemidhia and Yermassoyia delegated its power to appoint and terminate Ihe services of Watergunrds to the Chairman thereof i.e. the District Officer. 5 (
3. b)The statement of the respondents contained in para. 14 of the opposition whereby reference is made to the 10 re-examination of the complaint of the applicant advanced to the District Officer as Chairman of the Committee; the steps taken in re-examination and the inquiries carried out indicate that a new enquiry has been conducted before the decision, communicated to the applicant by virtue of the 15 letter dated 6.10.81, was taken. Independently of the grounds of opposition relating to the merits of the recourse under consideration the respondents raised two preliminary objections which were fully argued in the written addresses of both sides before the 20 trial Judge. The first preliminary objection was to the effect that the trial Court did not possess jurisdiction under Article 146 of the Constitution to entertain the recourse of the applicant against the termination of his employment on the ground that the relationship between the applicant and 25 his employers, the respondents, was not falling within the domain of Public Law and therefore, it was outside the ambit of Article 146 of our Constitution. The second preliminary objection was to the effect that the decision of 6.10.81 was not of an executory nature 30 being a confirmatory decision of a previous one. notably that of 27.8.81. It is apparent from the record that what was mainly argued before the trial Judge was the preliminary issue as to whether the decision complained of was in the domain of Public or Private law. The learned trial Judge having considered this preliminary 16 35 3 C.L.R. Androkii v. Republic Loris J. objection and having found that the subject matter of the decision complained of was within the domain of private law dismissed the reasons forthwith as not being justiciable. 5 During the hearing of the present appeal before us learned counsel appearing for the applicant-appellant invited us to rule that the subject matter of the recourse was within the domain of Public Law. He further went into the merits of the recourse hut whilst at that stage, learned 10 counsel appearing for the respondents conceded that the on'y issue which has to be decided in the present appeal is whether the decision complained of falls within the domain of Public Law or not; inspite of the fact that counsel for the respondents made it clear that he was adopting the 15 view taken by the learned trial Judge on this issue, he conceded that the sub judice decision should be annulled in case this Court rules that the decision in question falls within the domain of Pubic Law. 20 25 Thus, our task is confined substantially on one issue, notably whether the decision complained of is within the domain of private law as found by the trial Judge or not. Article 122 of the Constitution reads as follows: "For the purposes of this Chapter, unless the context otherwise requires— 'Public office' means an office in the public service; 'Public officer' means the holder, whether substantive or temporary or acting, of public office; 30 35 40 'public service' means any service under the Republic other than service in the army or the security forces of the Republic •and includes service under the Cyprus Broadcasting Corporation, the Cyprus Inland Telecommunications Authority and the Electricity Authority of Cyprus and any other public corporate or unincorporated body created in the public interest by a law and either the funds of which are provided or guaranteed by the Republic or, if the enterprise is carried out exclusively by such body, its administration is carried out under the control of the Republic, but does not include service in an office the appointment to or the filling of which is, under this Constitu17 Loris J. Androkll v. Republic (193E} tion, made jointly by the President and the Vice-Presi­ dent of the Republic or service by workmen except those who are regularly employed in connection with permanent works of the Republic or any such body as aforesaid." It is abundantl) clear from the definition of Public Service in Article 12? of our Constitution thai generally service by workmen d™* not fall within the definition of "public service" unless such workmen are "regularly employ­ ed in connection with permanent works" of the Republic 10 or of any other body r"f,it#:*iJ to in the definition of the said article of the. Comt^ution. Therefore, in the present appeal we have to coi;*:i.*,:r (
4. a)regular employment: (
5. b)whether services in q'.-'tion could be regarded a.s per­ manent works in the. -"^se of Article 122. 15 In the case of *j>-jfcrosLoizou and anoihci ν The Cyprus Inland 1fecanmunicaiion Authortn. & R.£C.C. 48 it was held that both the aforsaid issues arc isMies of fact. In connection wnh regular empluyment ihc then Supreme Constitutional COLT·, in the aforesaid case iaid down nevera.' 20 criteria as follows 'The period of his service, the security of tenure, the nature of the duties, the view taken of the status of such workman by his employing authority, are all relevant matters to be weighed, together, with other pertinent factors, in order to arrive at a proper conclusion.'" 25 ir. inc. present appeal the applicant-appellant (
6. a)was r->;minted by the Government Water Works PolemitHa-Yermassiyia as a weekly paid waterguard as it may be inferred from the letter of appointment dated 21.5.76; according to the said 30 litter generally the terms of his employment were thosj. of ""Government workers", (vide para, (
7. e)of the letter J ated 21.5.76). (
8. b)Inspite of his aforesaid appointment it is abundant­ ly clear from letter dated 20.4.77 that bis original 35 terms of appointment were altered so that he became a monthly paid waterguard with a salary scale 245X12—305 plus costs of living allowance £30,365 mils; 18 5 3 C.L.R. Androkli v. Republic Loris J. (
9. c)that he served with Government Water Works Polemidhia-Yermasoyia continuously for a period more than five years i.e. from 24.5.76—20.8.81 , when he was dismissed with a month's notice. 5 10 Taking into consideration the above, as well as the fact that he was given a month's notice upon dismissal by the respondent and all other revelant factors pertaining the circumstances of the present case we hold the view that the appellant was regularly employed Waterguard of the Government Water Works Polemidhia—Yermassoyia. Now, as regards the works of Government Water Works Polemidhia—Yermassoyia, taking into consideration that they do exist and function for the last fifty years and that they arc obviously Government Water Works created 15 in the public interest we hold the view that the Government Water Works Polemidhia—Yermassoyia are to be regarded as permanent works of the Republic in the sense of Article 122. In view of our aforementioned findings in connection with "regular employment" and "permanent works" we hold the view that the employment of the applicantappellant falls within the definition envisaged by Article 122 as regards public service and therefore, the dismissal of the appellant is a decision falling within the domain of 25 Public Law. 20 In spite of the fact that learned counsel appearing for the respondents conceded that the sub judice decision should be annulled in case we rule that the object of the decision in question is within the domain of Public Law, 30 we felt it our duty to examine, acting ex proprio motu, whether the subjudice decision was of an executory character or whether it was merely a confirmatory decision of the original one of 20.8.81, an issue which (although originally raised by the respondents but not pursued further 35 and/or abandoned) goes straight to the hypostasis of our jurisdiction. Having carefully gone through the relevant material before us, we are satisfied that the decision of 6.10.81 was reached at, after a new and thorough enquiry into 19 Lori· J . Androkli v. Republlo

(1986)flew additional facts and it is therefore of an executory character and therefore justiciable. We have not touched upon the amenity of anybody other than the Public Service Commission to concern itself with appointments and dismissals of permanent workers in the government service similarly positioned to the applicant. The matter has not been properly raised and nothing said in this judgment should be construed as expression of any opinion on the subject by this Court. In the result the present appeal is allowed and the sub judice decision is hereby annulled. Appeal allowed, Sub judice decision annulled. 20