3 C.L.R. 1985 July 8 [DEMETRIADES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANTONIS LOUCA, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH 1. THE MINISTRY OF INTERIOR, 2. THE DIRECTOR-GENERAL OF THE MINISTRY OF INTERIOR, Respondents. (Case No. 198/82). 5 Pensions and Gratuities—Police Force—Requirement to resign of member of, following his disciplinary conviction—No absolute right to receive pension—Regulation 45 of the Police (Discipline) Regulations, 1958-1981—Section 6(
- f)and 7 of the Pensions Law, Cap. 311—Meaning of expression "As provided in the Law" in section 6(
- f)of Cap. 311. 10 The applicant, then a member of the Police Force, was charged with committing five disciplinary offences and upon his plea of guilty was finally sentenced to the disciplinary punishment of the "requirement to resign". 1S On the 26.10.1981 the applicant, after complying with the above sentence, applied to the Council of Ministers for pension under regulation 45 of the Police (Discipline) Regulations, 1958-1981 and sections 6(
- f)and 7 of the Pension Law, Cap. 311* 20 The Council of Ministers after a submission by the Minnister of Interior, in which all facts relating to the personal circumstances of the applicant and his conduct, while serving in the Police Force, are stated, decided to reject the application of the applicant. Its decision was communicated * Sections 6(fJ and 7 of Cap 311 at pp 1533-1534 post and 1531 Regulation 45 are quoted
(1986)Louca v. Republic to applicant's counsel by a letter of the Director-General of the Ministry of Interior dated 2.3.
- As a result the applicant filed the present recourse. One of the grounds of Law on which the applicant bases his present recourse is that the respondents acted under a misconception regarding the interpretation and application of the said regulation
- 5 Held, dismissing the recourse
(1)The power vested in the Council of Ministers to grant pensions and other benefits earned in cases where a member of the Police Force 10 has been sentenced to the disciplinary punishment of the "requirement to resign** is discretionary (Savva v. The Republic
(1979)3 C.L.R. 250 reversed on appeal on another point and Constantinou v. The Republic
(1984)3 C.L.R. 456 followed). 15
(2)In the circumstances of this case and having regard to all the material placed before the Court, which bad also been placed before the Council of Ministers, it cannot be said that the Council of Ministers exercised its discretion in a defective manner or acted in any way in abuse 20 or excess of power. Recourse dismissed. No order as to costs. Cases referred to: Savva v. The Republic
(1979)3 C.L.R. 250 (on appeal
(1981)3 C.L.R. 599); 25 Constantinou v. The Republic
(1984)3 C.L.R.
- Recourse. Recourse against the decision of the Council of Ministers to reject applicant's request for the grant to him of retire- 30 ment benefits after the disciplinary punishment of requirement to resign from the Police Force was imposed on him. A. Spyridakis, for th& applicant. A. Vladimirou, for the respondents. Cur. adv. vuH. 35 1532 3 C.LR Louca v.Republic DEMETRIADES J. read the following judgment. The appli cant, an ex Police Constable, was enlisted in the Police Force in
- 5 10 15 20 Between the 29th January, 1981, and the 31st May, 1981, while serving as a constable at the Police Station of Amiantos, without authorization and in breach of the Po lice regulations, used the Government telephone of the said Police Station for private calls, thus charging the Republic with the sum of £279.745 mils. As a result, the applicant was charged with committing five disciplinary offences to which he pleaded guilty and was sentenced to pay a fine equal to ten and five daily wages in respect of the first and second count, respectively, but the Divisional Police Com mander of the district in which the applicant was serving, in the exercise of his power as a reviewing officer, by vir tue of regulation 18
(4)of the Police (Discipline) Regula tions, 1958-1981, decided that the proper sentence to be imposed on the applicant was dismissal from the Police Force. The applicant then appealed to the Chief of Police who, by virtue of the powers vested in him by regulation 21 of the relevant Regulations, imposed on the applicant the disciplinary punishment of the "requirement ίο resign". On the 26th October, 1981, the applicant, after com plying with the sentence imposed on him by the Chief of 25 Police, wrote, through his lawyer, a letter to the Secretary of the Council of Ministers asking for the examination by the Council of Ministers of his claim for pension under re gulation 45 of the Police (Discipline) Regulations, 19581981 (see No. 40 in the Third Supplement to the Official 30 Gazette, Part 1, dated 26th March, 1976) and sections 6(f) and 7 of the Pensions Law, Cap. 311. Regulation 45, above, reads as follows: 35 40 •45. Eic περίπτωσιν καθ'ήν ή δυνάμει των παρόντων Κανονισμών επιβληθείσα eic μέλος της Δυνάμεως ποινή διά πειθαρχικόν αδίκημα εϊναι ή της υπό τοϋ έκδικάσαντος το αδίκημα απαιτήσεως προς το μέλος διά παραίτησιν, ή συνεπείφ της τοιαύτης ποινής πάραίτησις τοΰ μέλους θά θεωρήται. διά σκοπούς συντάξεως. ώς τερματισμός υπηρεσίας προς τό δημόσιον συμφέρον καΐ δεν θά άποοτερή τό μέλος τοϋ δικαιώματος 1533 Demotriades J. Louca v. Republic
(1985)του δια ούνταξιν χορηγουμένην επί της ρηθείσης βά σεως τοϋ τερματισμού υπηρεσίας προς τό δημόσιον συμφέρον.» ("In case the punishment imposed by virtue of these Regulations on a member of the Force for a disci5 plinary 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 services in the public in terest and will not deprive the member of his rights 10 to pension granted on the said basis of termination of services in the public interest",) Section 6(
- f)and 7 of Cap. 311, above, read as follows: "6. No pension, gratuity or other allowance shall be granted under this Law to any officer except on his 15 retirement from the public service in one of the fol lowing cases: (
- f)in the case of termination of employment in the public interest as provided in this Law. 20 7. Where an officer's service is terminated by the Council of Ministers on the ground that, having re gard to the conditions of the public service, the use fulness of the officer thereto and all the other circum stances of the case, such termination is desirable in 25 the public interest, and a pension, 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 or other allowance as it thinks just and proper, not ex- 30 ceeding 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." During its meeting of the 10th, 11th and 12th February, 1982, the Council of Ministers, after a submission of the Minister of Interior, under No. 143/82, copy of which is an exhibit in the file of the recourse, and in which all facts 1534 35 3 C.L.R. 5 Louca v. Republic Demetriades J. relating to the personal circumstances of the applicant and his conduct whilst serving in the Police Force are stated, by its Decision No. 21.357, decided to reject the application of the applicant and its decision was communicated to his counsel by letter of the Director-General of the Ministry of Interior dated the 2nd March, 1982. The relevant decision of the Council of Ministers reads as follows: 10 15 20 25 30 35 «43. Τό Συμβούλιον έμελέτησεν σϊτησιν, έκ μέρους τοϋ πρώην "Αστυφύλακος ύπ* 'Αρ. 2540 Αντώνη Λου κά, εις τόν όποιον επεβλήθη ή πειθαρχική ποινή της απαιτήσεως προς παραίτησιν, διά τήν κατάΒολήν εις αυτόν, δυνάμει τοϋ Κανονισμού 45 των περί 'Αστυ νομίας (Πειθαρχικών) Κανονισμών και τοϋ άρθρου 7 τοϋ περί Συντάξεων Νόμου, Κεφ. 311 και Νόμων 17 τοϋ 1960, 9 και 18 τοϋ 1967, 51 και 119 τοϋ 1968, 9 τοϋ 1971, 65 τοϋ 1983, 42 τοϋ 1976, 38 τοϋ 1979,2 και 39 τοϋ 1981, τών ωφελημάτων άφυπηρετήσεως τά όποϊα ούτος έκέρδιοε βάσει της πραγματικής αύτοϋ υπηρεσίας καί, λαβόν ύπ' όψιν άπαντα τά εκτεθέντα κατά τήν Συνεδρίσν ώς καί τό μητρώον τοϋ αϊτητοΰ, άπεφάσισεν όπως ή αίτησις του μή γίνη αποδεκτή.» ("The Council considered an application on behalf of ex P. C. 2540 Antonis Louca, to whom there was imposed the disciplinary punishment of the require ment to resign, for the payment to him, by virtue of Regulation 45 of the Police (Discipline) Regulations and section 7 of the Pensions Law, Cap. 311, and Laws 17 of 1960, 9 and 18 of 1967, 51 and 119 of 1968,- 9 of 1971, 65 of 1973, 42 of 1976, 38 of 1979, 2 and 39 of 1981, of the retirement benefits which he has earned on the basis of his actual service and, having taken into consideration all that has been presented du ring the meetings, as well as the record of the applicant, decided that his application should not be accepted.") As a result of the above decision the applicant filed the present recourse by which he seeks its annulment and/or that what was omitted ought to be performed. 40 The legal grounds on which the applicant bases his present recourse are the following: 1535 Demetriodes J. Louca v. Republic
(1986)(
- a)The respondents had acted under a misconception regarding the interpretation and application of regulation 45 of the Police (Discipline) Regulations 19581981. (
- b)The respondents, in refusing to grant to him a pension 5 and other benefits, had acted in a discriminatory manner and in contravention of the rules of proper administration. (
- c)The respondents had acted under a misconception of fact and in abuse or excess of their powers. 10 The meaning and effect of regulation 45, above, has been decided by this Court in, inter alia, the cases of Savva v. The Republic,
(1979)3 C.L.R. 250 (on appeal
(1981)3 C.L.R. 599), and Constantinouv. The Republic,
(1984)3. C.L.R. 456. In the Savva case, supra, Malachtos J. held that regulation 45 does not give to a member of the Police Force, who was required to resign, an absolute right to receive pension, gratuity or other allowances; that the punishment imposed under regulation 45 is considered for pension purposes as termination of employment in the public interest and so under section 6(
- f)of Cap. 311, the applicant is entitled to pension as provided by the said Law; that the expression "as provided in this Law" appearing in section 6(
- f)does not mean the calculation and machinery under which pension, gratuity and other allowances are collected, but the right to such benefits and so the provisions of section 7 of the Law come into play, under which the Council of Ministers is vested with discretionary power to grant or refuse pension benefits. In the Constantinou case, supra (at p. 461) A. Loizou J. had this to say on a similar issue as the one raised in the present recourse: "The expression "as provided in this Law* in para. (0 of section 6 of the Law cannot be confined to a 35 particular provision of the Law but to the whole of it and in this respect section 7 which deals with the question of pension, gratuity or other allowance in 1536 15 20 25 30 3 C.L.R. 5 10 15 Louca v. Republic Demotrtades J. cases of termination of services in the public interest is applicable also to cases under regulation 45 when the punishment imposed for a disciplinary offence is 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 7 as the said expression in this regulation is followed by the expression 'on 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 that a person submitting his resignation might be deprived of his pension rights, whereas a person required to resign as a result of a disciplinary offence would be entitled as of right to the receipt of a pension." 20 I fully agree with the approach adopted in the judgments referred to above and I am, also, of the view that the Council of Ministers in cases such as the present one have a discretion in granting pensions and other benefits earned when the disciplinary punishment of "requirement to resign" 25 from the Police Force is imposed. In the circumstances of the present case and having regard to all the material placed before this Court, which, as it appears from the record of the recourse, has also been placed before the Council of Ministers when it was taking 30 the sub judice decision, it cannot be said that the Council of Ministers exercised its discretion in a defective manner or had acted in any way in abuse or excess of powers or contrary to the provisions of the Law. On the contrary, the Council of Ministers was absolutely correct in reaching the 35 decision to reject the request of the applicant for a pension and benefits arising out of the termination of his service and, therefore, the present recourse fails and it is dismissed accordingly, but with no order as to its costs. Recourse dismissed. No orderas to costs. 40 1537