(1986)ί986 November 28 [SAVVIDES. J.l IN THE MATTER OF ARTICLE !4# OF THE CONSTITUTION ANDROULLA PIPER1DOU AND OTHERS. Applicants, THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF HEALTH. Respondent. (Cases Nos. 561/84, 562/84 and 563/84). Executory act—Confirmatory act—informatory act —Decision taken in 1979 to discontinue payment of overtime allow ance—Known to applicants as such allowance was dis continued a.s from 1.1.80—Application for payment of the allowance made in 1984—Refection of application—No new decision on basis of new facts and after new inquiry leached—Perusal of letter in reply shows content to be informatory and confirmatory—Recourse out of time. By similar letters dated 2.2.84 addressed, through their counsel, to the Minister of Health, the applicants, who are Government nurses, contended that they were en'itlecl to overtime allowance and claimed payment in respect thereof. By letter dated 7.8.84 the Director-General of the Ministry of Health replied that 'Overtime allowance is paid only to nursing staff working on the system of shifts in Hospitals", that "in no case staff of a rural health centre has been paid overtime allowance" and, moreover, referred to the fact that the "Branch Committee of the Nursing Staff Union was informed by the Ministry of Health in 1979 that the nursing staff of R.H.C. of Evrychou is not entitled to overtime allowance" and finally referred to the minutes of a meeting between representatives of PA.SY. DY and the Ministry of Health dated 29.9.82. 7404 3 C.L.R. 5 10 15 20 Piperidou and Others v. Republic Hence the present recourse. What emanates from the allegations of Counsel for the applicant and the facts set . out in their applications is that the applicants were regularly paid overtime allowance till 31.12.79 and that thereafter such allowance was discontinued. Held, dismissing the recourse:
(1)The decision thai nursing staff working at Rural Health Centres at which no in-patients were accepted would not be enti'led to overtime allowance was known to the applicants from the fact that as from 1.1.80 the relevant payments were discontinued.
(2)A perusal of the letter dated 7.8.84 shows that no new decision was taken after a new inquiry into the matter on the basis of new facts. The letter is informatory in character as to what happened in 1979 and confirmaton of the earlier decision.
(3)As the applicants failed to challenge the decision to discontinue the payments within the period of 75 d:;\^ from such decision, they do not have a legitimate inteaM in file this recourse. This matter, though not rakal b> counsel, i-. one (hat can be examined ex proprio motu. Recourse dismissed. ;Vf orders as to costs. 25 30 35 Observation by the Court: It is the duty of Compel when relying on legal grounds to slate in concise manner in what respect there is a violation of the Constitution or the law and. also, when stating the facts, to give a short summary of the facts and not refer the Court to documen's already filed which the Court will have to examine for the purpose of finding out which of such facts are material. When citing cases of this Cour!. counsel shni'K! make reference to the Cyprus Law Reports, and no! to the J.S.C.. which were provisionally issued til! the repor!are printed in their official form. Cases referred to: Mitidou v. CY.T.A.
(1982)3 C.L.R. 555. 2405 Piperidou and Others v. Republic
(1986)Recourses. Recourses against the refusal of the respondent to· pay overtime allowance to applicants. P. Solomonides,. for the applicants. R. Gavrielides, Senior Counsel of the Republic, for the respondent. 5 Cur. adv. vult. SAVVIDES, J. read the following judgment. By these recourses which were heard together as presenting common questions of law- and fact, the applicants pray for the fol- 10 lowing- relief: (a). A declaration of the Court that the decision, of the respondent contained in the letter dated 7.8.1984 whereby the applicants were refused payment of overtime allowance, is null and void and of no legal effect. 15 <b)A declaration of the Court that the omission of the respondent to pay to the applicants special overtime allowance for the periods in respect of applicant in Case No. 561/84 as from 1M.80 till 7.8.82, for applicant in Case No. 562/84 as from 14.4.80 till 13.1.83 and in respect of 20 applicant in- Case No. 563/84 as from. 1.1.80 till 31.12.83. is null· and void'. (c). An order of the Court directing the respondent Minister- to. produce before the Court a detailed statement ofi the. overtime periods worked by the applicants at Evrychou Hospital· 25 (d). A declaration of the Court that the sub, judice decision· of the respondent was, taken in. excess and or abuse of. powers:and' that it is not. duly reasoned: The. legal' grounds on which, the· recourses- are based, 30 are stated in. a brief and' vague way without! precision in what respect such grounds are applicable and they, areverbatim. as follows: •*(
- a)Articles 146·and' 28;-off the- Constitution. 2406 3 C.L.R. P'pe'idou and Others ν Republic Savvides J (
- b)Abuse of power." 5 The applications were opposed and the ground ot law set out in suppoit of the opposition, is that the decision is lawful and that the applicants are not entitled to an oveitime allowance. Counsel for the respondents made the endorsement as to the facts of the case following bnei "The facts ot the case appear in the coriesponder..e which is attached to the application." 15 Pausing here lor a moment, 1 wish to comment on the way that both the legal grounds m support of the recourse as set out in the application, as well as the descript on oi the facts as set out in the opposition were described h\ counsel. It is the duty of counsel when relying on leg i! grounds to state in a concise manner in what respect thee is a violation of the Constitut on or the law and. also when stating the facts to gi\e a shvr nummary of the tacts.>vJ not refei the couit to doui n . ens already hkd which '.!.u 1 : 1 1 ' Λ Ί 'at\e to evntiuie loi the purpose ot iiil ig κ whvh *' η ' ic'·· ;--e materia' in til's respn.1. ! Hi^h to leiteri'e once agar nn comments -n Mmdou \ CY Τ ! fl082> ? C I . R 5Ss ,,t pp. 571 S72 <s lollows 25 30 1 wish m remark that in administia· \e leeourses the 'e^al grounds on which both the app'ication and the opposition are based must be state·! ! precise \ and conc'scly to enable the reader to unilei stand in the first instance, what is the issue π ι'' case, leaving full argument and exposition of the l.iu at the hearing." The facts of the ^ase aie- hncf«\ as lollows ^5 The applicants are Government musts and during the material times in respect of wlvch thc\ Jaim overt me allowances, they were working at Evr\chou hospital B\ similar letters dated 2.2.1984 addressed to the Minister o' Health by counsel on their behalf, the\ contended that the\ 2407 Sewides J- Piperidou and Others v. Republic
(1986)were entitled to overtime allowance as per (
- b)of their application and claimed payment in respect thereof as "compensation or emoluments to which they are entitled under the law and/or the regulations." By letter dated the 7th August, 1984, the Director-General of the Ministry of Health replied to the applicants that. their claim could not be satisfied for the following reasons: 5 "(
- a)Overtime allowance is pa'd only to nursing staff working on the system of shifts in Hospitals that 10 is, where patients are kept for treatment. In no case staff of a rural health centre has been paid overtime allowance. Your clients were working in the R.H.C. of Evrychou where during the period in respect of which they 15 claim overtime allowance, no system of shift work existed and from the material which we have for the last five years, no patient has ever been kept overnight. (
- b)The Branch Committee of the Nurs'ng Staff 20 Union was informed by the Ministry of Health in 1979 that the nursing staff of the R.H.C. of Evrychou is not entitled to overtime allowance. Once the Branch Committee was informed, it should have reacted then, if it did not agree with the explanations 25 given. Nevertheless, three years later and in particular on th 21st July, 1982, they brought up again the matter of overtime allowance.
- ic)After the matter was brought up again, it was discussed at a meeting which took place on 29.9.82 30 between representatives of PASYDY and the Minister of Health. The decision appears in the following extract of the minutes: Overtime allowance. (
- a)Nurses of the Rural Health Centre of Evrychou. After an exhaustive discussion of the subject on the basis of the real facts and in particular the 2408 35 3 C.L.R. 5 10 Piperidou and Others v. Republic Savvides J. fact that the nurses of the Rural Health Centre of Evrychou for three years after the decision that no payment of overtime allowance was payable, submitted no application for the payment of any allowance and continued to stand by for overtime duties, it has been agreed that PASYDY will consider the proposal of the General Secretary Mr. Iacovou according to which the payment of overtime allowance might be considered favourably as from the day when such claim was submitted'. " It is the decision contained in this letter that is being challenged by the present recourse. 15 20 25 30 By his brief written address, counsel for the applicants in setting out the facts, contended that the applicants, at the material times, according to the law, the regulations and the orders in force, were bound to work 37 hours per week and that any work or service rendered by them in excess either by way of shift or otherwise as nurses, in any Government Hospital or Rural Health Centre, was overtime work in respect of which applicants were entitled to overtime allowance. It is further contended that the applicants worked during nights, holidays and Sundays for periods in excess of their normal hours of duty for which they were entitled to overtime allowance. The refusal of the respondents to pay such allowances to the applicants, is, in the submission of their counsel, unjust, arbitrary and illegal and should be dismissed for the following grounds of law of which I need not make a brief summary, because they are already so briefly and vaguely stated, that it suffices if I set them out as stated in the address of counsel. "Legal grounds: Articles 146 and 28 of the Constitution. 35 1. Contract Law, Cap. 149. 2. Ubi Jus Ibi Remedium (where there is a right there is a remedy). 3. 1964 5 J.S.C. p. 9 at p. 14. Boyadfis v. Republic of Cyprus. 2409 Savvides J. Piperidou and Others v. Republic {1986) 4. Government General Orders and Circulars ihen in force (i.e. the !5th August, i960). 5. J.S.C. Case No. H3>79 Savvos Tamuitirh
(1)Minister of Interior and others)." v. No explanation is given in what respect the various 5 egal grounds which are enumerated in his address apply η these cases and I wish to repeat once again that when :ounsel make reference to decided cases of th ; s Court they :hould make reference to Cyprus Law Reports where hey are properly reported and not to the publications of 10 ;uch judgments m the J.S.C. provisionally issued till the eports are printed in their official form. Counsel for the respondent on the other hand, by his vrilten address which covers about half a page, submitted har the recourse should be dismissed, as the applicants 15 'ailed to point out any particular law, regulation or order on which their claim is based. Furthermore, that if the applxants' complaint is that the Republic was "unjustly en riched" as a result of any services rendered by them, they could institute civil proceedings for damages for unjust en- 20 r ichment. By his written address in reply counsel for the applicant-; submitted that the applicants are entitled to their claim under section 37 of the Public Service Law (No. 33/67) and. in particular, the provision that an offer upon ap- 25 pointment should mention the terms of service and thirt terms of service include according to section 53, the salary and such other allowances as may be- defined. Counsel fur ther added that under Circular No. 492 of the Ministry of Finance dated 2.4.1979, with retrospective effect as from 30 1.1.1979, the terms and conditions regulating overtime allowance for work on Sundays, public holidays and night shifts have been approved by the Council of Ministers. CounscJ further contended that the applicants prior to mtl till the time they, were transferred- to the Rural Health 35 : Centre of Evrychou were paid such overt me allowances for night duties until *he 31st December,
- 2410 3 C.L.R. 5 10 15 20 25 30 35 Piperidou and Others v. Republic Sawides . What emanates from the allegations of counsel for th applicants and the facts set out in their applications is tha the applicants were regularly paid overtime allowance til the 31st December, 1979 and then such allowance was dis continued. The reasons for such discontinuance were coin municated to the Branch Committee of the Nursinj Staffs Union in 1979 and are reiterated in the minutes ο the meeting between representatives of the PASYDY anc the Minister of Health, extracts of which are set out ir the letter of the Director-General of the Ministry of Healtl dated the 7th August.
- The decision.that nursing staff working at Rural Healtl Centres at which no in-patients were accepted and whici did not operate as Hospitals in the proper sense, that is Hospitals at which in-patients were kept for treatment whici necessitated the maintaining of night shifts of nursim staff, was known to the applicants from' the fact that a; from the 1st January, 1980, no overtime allowance wa> paid to them. The applicants never challenged such decision within the time limit of 75 days and raised a claim ir this respect 4 years later, by the letter of their counsel oi the. 2nd February, 1984 to which the'reply of the 7th Au gust. 1984 was received. A perusal of the contents of the letter of the 7th August, 1984 clearly shows that no new decision is contained therein after a new inquiry into the matter en the basis oi new facts but the letter is merely of an informatory cha racter supplying information as to what happened in 1979 and thereafter and confirmatory of the decision of the ·. · pondent that no overtime allowance was to be paid tt nursing staff in Rural Health Centres, of which the appii cants had express or implied knowledge. Tn the light of the above Ρ have come to the conclusion that the applicants- have no legitimate interest to file the present' recourse as they have failed to" challenge the de cision of the respondent for discontinuance of payment of overtime allowance' within· the period of 75 days from' the time when sucH decision' was taken and' came to their 24Ϊ1 Sawides J. Piperidou and Others v. Republic
(1986)knowledge. Though this matter has not been raised by counsel for the respondent, it is a matter which the Court can take up ex proprio motu. In the result, these recourses fail and are hereby dismissed. There will be no order for costs. Recourses dismissed. No order as to COSTS. 2412 5