(1986)1986 January 18 [TRIANTAFYLLIDES, P.] iN THE MATTER OF ARTICLE I4fc OF THE CONSTITUTION NEOPTOLEMOS ASTREOS. Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE COUNCIL OF MINISTERS, Respondent. (Case No. 354/82). Pensions and Gratuities —Public Officers —Compulsory retirement of, as a disciplinary punishment—Discretion of Council of Ministers to grant retirement benefits—Section 79
(6)of the Public Service Law 33/69—Burden of proving that the discretionary powers were wrongly exer· cised or that the Council exceeded their outer limitsRests on the applicant. 5 The applicant was a messenger in the public service. On 5.10.81 he was convicted and sentenced by an Assize Court to eighteen months' imprisonment for various of- 10 fences, including stealing of two cheques, forgery and obtaining money by false pretences. As a result the respondent Commission imposed on the applicant the disciplinary punishment of requirement to resign. The Council of Ministers decided not to approve the grant to the applicant of 15 retirement benefits (Section 79
(6)of Law 33/67 making applicable the provisions of the Pensions Law, Cap. 311 relating to retirement benefits on termination of service in the public interest). Hence the present recourse. Held, dismissing the recourse, that the burden of proving that the Council of Ministers has exercised wrongly 2604 20 3 C.L.R. 5 Astreos v. Republic its discretionary powers or it has exceeded their outer limits rests on the applicant, who has failed to discharge it, and that, bearing in mind the nature of the aforesaid criminal offences, the sub judice decision was reasonably open to the respondents. Recourse dismissed. No order as to costs. Recourse. 10 Recourse against the refusal of the respondent to approve the grant to applicant of retirement benefits upon his compulsory retirement from the Public Service. C. Anastassiades, for the applicant. N. Charalambous, Senior for the respondent. Counsel 15 20 25 30 of the Republic, Cur. adv. vult. TRIANTAFYIXIDES P. read the following judgment. By means of the present recourse the applicant challenges the refusal of the respondent Council of Ministers to approve the grant to him of retirement benefits upon his compulsory retirement from the public service. The applicant was holding the post of a messenger in the public service until the 5th October 1981 when he was convicted, by an Assize Court in Nicosia, to eighteen months' imprisonment after he had pleaded guilty to various offences including the stealing of two cheques, forgery and obtaining money by false pretences. As the offences committed by the applicant involved dis ; honesty the Public Service Commission, after affording h m an opportunity to be heard, under section 82 of the Public Service Law, 1967 (Law 33/67), imposed on him, on the 22nd March 1982, the disciplinary punishment of com pulsory retirement from the public service as from the date of his conviction by the Assize Court. Section 79
(6)of Law 33/67 provides as follows: 35 «'Eni τρ αναγκαστική άφυπηρετήσει έκ συνταξίμου 2605 TriantafyNides p. Astreos v. Republic (198Θ) θέσεως εφαρμόζονται ai δ:ατάΕεις τοϋ εκάστοτε εν ΐσχύϊ περί ΣυντάΕεων Νόμου ai άψορώσαι εις ωφελή ματα άφυπηρετήσεως έπϊ τω τερματισμό) ύπηρεσίσο προς το δημόσιον συμφέρον.» "(
(6)On compulsory retirement from a pensionable office, the provisions of the Pensions Law for the time being in force in relation to retirement benefits on termination of service in the public interest shall apply"). 5 Under the relevant provisions of the Pensions Law, Cap. 311, the grant of retirement benefits in a case such as the present one is left to the discretion of the Council of Mi nisters. 10 The Council of Ministers, by its decision No. 21.778, dated the 20th May 1982, decided not to approve the 15 grant to the applicant of retirement benefits and this de cision was communicated to the applicant by a letter dated the 19th June 1982, which was received by him on the 29th June
- The present recourse
- was filed on the 3rd September 20 It has been argued by counsel for the applicant that in view of the circumstances of this case, and particularly of its humanitarian aspect, the Council of Ministers in re fusing to approve the grant to the applicant of retirement 25 benefits has exercised its discretionary powers under Cap. 311 in a inequitable manner. Counsel for the applicant has conceded, however, that the Council of Ministers has wide discretionary powers in a matter of this nature, but he has submitted that the less 30 onerous for the applicant course should have been adopted by the Council of Ministers. The burden of proving that the Council of Ministers has exercised wrongly its discretionary powers, or that it has exceeded their outer limits, rests, in a case of this na- 35 ture, on the applicant, who has failed to discharge it. Not only I have not been persuaded that there exists any valid 2606 3' C.L.R. 5 Astreos v. Republic Triantafyllides P. reason justifying the annulment of the sub judice decision, but, on the contrary, bearing in mind the nature of the offences of which the applicant was convicted, I must hold that the sub judice decision was reasonably open to the Council of Ministers. In the result the present recourse fails and it is dismissed accordingly; but with no order as to its costs. Recourse dismissed. No order as to costs. 2607