clr/1987/1987_3_105.pdf

(1)The expre--.ion - u i l l n<ι l U p n w ih member of hisnghts-intheabove Regulation doe* noi rakt avvat, t l i , tiiv •<. tionary powers qiven tothe Council of Minister b\ section.-,ο .ind7 nfilw I\ Ρ sions Law Cap 3 1 1 " 20

(2)The discretion given by Reg 45 does notamount roacontrjv.* mi >i the pnnciple of equality

(3)The fact that other police officers u p o n lerniiiwtK.n <>ttlutt -..t ι u p o n being required to resign had received t h a r 11 m e n u ni l i .in ti 'Quotedatpp 107 lOSpost *"The relevant part ofsection6andthe \*hoi? *ttion 7.in φ ·. ' <,i,> iti* 105 Papamlltiadou· v. Republic

(1987)notnecessanly meanunequaltreatmentinviewofthereasonabledistinctions anddifferentiations existing between themandtheapplicant,takingintocon­ sideration the circumstancessurrounding eachparticular case

(4)Thesub-judice decision is duly reasoned Thereasoning appearsboth inthedecision itself andintherelevantfilewhichwasbefore therespondents, when they tookthesub-judice decision 5 Recoursedismissed. No Orderas to costs Casesreferred to Sawa ν TheRepublic

(1979)3 C LR 250, ,Q Constantinou ν TheRepublic{1984)3 C LR 456, Sawav TheCouncilofMinisters

(1984)3 C L R 285, Loucav TheRepublic

(1986)3 C L R 1640, Micrommabsv TheRepublic, 2 RS CC 125, TrieRepublic ν NishanArakianand Others

(1972)3 C LR 294 Recourse. Recourse against therefusal of therespondentstograntappli­ cantretirementbenefits onhisbeing requiredtoresign asadisci­ plinary punishmentafter having been found guilty of offences againsttheDisciplinary Code. 20 A Markides, for theapplicant. A Vassiliades, fortherespondent Cur. adv. vult. MALACHTOSJ. readthefollowing judgment. By thepresent 25 recoursetheapplicantclaimsthefollowing remedies:(

1. a)Adeclarationof theCourtthatthedecision of therespond­ ents contained in their letter of 10.12.1980, notto grant tothe applicantretirementbenefits isnullandvoidandofnolegal effect whatsoever, and (b)AdeclarationoftheCourtthattheomission oftherespond­ entstoapprovethegrantingof retirementbenefittotheapplicant isnullandvoid andof nolegal effect whatsoever, andwhatever hasbeenomittedshouldhavebeenperformed retrospectively. 106 30 3 C.L.R. PapamUtiadous v. Republic Malachtos, J. Therelevantfactsofthecaseareas follows The applicant enlisted in the Police Force on 18 9 68 On 20 8 80 he was required to resign as punishment when he was found guilty of offences againstthe Disciplinary Code for having 5 acted contrary toparagraphs 1,6(
2. e)and 6(
3. f)thereof as follows 1 Contrary topara 1 fordiscreditable conduct forhaving acted in a disorderly manner or in a manner prejudicial to discipline or reasonably likelytobnngdiscreditonthe reputation of the Force thatis,forhavingsentananonymouslettertothePresidentofthe 10 Republic,thePresidentoftheHouseofRepresentatives,theMinisterofIntenor, the Ministerof Finance andtheChief ofPolice,the contents ofwhichwerethreatening orextortionary 2 For breach of confidence, contrary to para 6(
4. e)for having made anonymous communications asaforesaid and 15 3 Contrarytopara 6{g)forhavingcirculatedadocument orsta tement with regard toa matter concerning the Force, not through theproperchannel ofcorrespondence totheGovernment andthe Chief of Police InaccordancewithDisciplinaryRegulation 18

(4),theabove de 20 cisionwasconfirmed uponreviewbytheDivisional Commander Theapplicantappealed underRegulation 20totheChief ofPo liceon20 8 80butattheheanngon 169 80hewithdrewsuchap peal On the samedayheappliedbylettertotheCouncilofMinis ters for a gratuity and pension under Regulation 45 of the Police 25 (Discipline) Regulations 1959-1976 The Council of Ministersmet on 6 1080, considered such ap plication and decided toreject it Their decision was communica tedtotheapplicantbyletteroftheChief ofPolicedated 10 1280 Asagainstthisdecisiontheapplicantfiledthepresent recourse ** Itwasargued on behalf oftheapplicant thatthesaiddecision is illegalasbeingcontrarytoRegulation 45ofthePolice (Discipline) Regulations ThisRegulation readsas follows «Incasethepunishment imposed byvirtueofthese Regulations on a member of the Force for a disciplinary offence isthe oneof 35 requirement to resign,the resignation of the member ansingasa result ofsuchpunishment wilt,for purposes ofpension, be consi 107 Malachtos, J. PapamUtiadous v. Republic

(1987)dered as terminationof services inthePublicinterestandwillnot deprive thememberof hisnghtstopensiongrantedonthesaidba­ sis of terminationof services inthepublic interest» Itwas also contendedthateven if such discretion did exist, the subjudice decision muststillbeannulledforlackofduereasoning 5 Furthermore, onthepnncipleof equality suchdiscretion cannot exist since it would result in certain persons receiving heavier punishment by the non-paymentof gratuity andpension Itwas also contendedthat even if such discretion did exist, the subjudicedecisionmuststillbe annulledfor lackofduereasoning 10 Finally it was contended that the applicant was subjected to unequal treatmentvis a vis other officers who where required to resign but were granted theirretirement benefits. Imust say straight away thatI do notagree with theinterpreta­ tion given to Regulation 45 by counsel for applicant Thisregula- 15 tion has been interpretedby thisCourtinthecase of Charalambos Sawa ν TheRepublic,

(1979)3C LR250,where itwas decided thattheexpression «willnotdepnve thememberofhisnghts» does nottakeaway thediscretionarypowers given totheCouncilofMi­ nisters by sections 6 and 7of the Pensions Law, Cap311 20 Section 6 of the Pensions Law, Cap 311, in so far as it is relevant reads as follows «Nopension,gratuity orotherallowance shallbe grantedunder this Law to any officer except on his retirementfrom the Public Service inone of the following cases 25 (0 Inthe case of terminationof employment inthepublicinte­ rest as provided in this Law » The words «as provided in thisLaw» refer, interalia, tosection 7 thereof which reads as follows «7 Where anofficer's sevice isterminatedby theCouncilofMi­ nisters on the ground that,having regard tothe conditionsof the publicservice, theusefulness oftheofficer theretoandalltheother circumstances of the case, such termination is desirable in the public interest,and a pension,gratuity orotherallowance cannot ^5 otherwise be granted tohimundertheprovisions of thisLaw, the 108 30 3 C.L.R. PapamUtiadous v. Republic Malachtos, J CouncilofMinistersmay,ifitminksfit,grantsuchpension, gratuity orotherallowanceasitthinksjustandproper, notexceedingin amountthatforwhichtheofficer wouldbeeligibleifheretired from thepublicserviceinthecircumstances described inparagraph (e) 5 ofsection 6thisLaw». The case of Sawa, supra, was followed in Contantinou v. The Republic,

(1984)3 C.L.R. 456 where regulation 45 was considered. Atp.461 of thisreport the following isstated: «Iagree fully with the approach of Malacthos, J., hereinabove 10 referred to on the construction of the relevant provisions of the Lawandofregulation45.Theexpression 'asprovidedinthisLaw' inpara.(f) ofsection6oftheLawcannotbeconfined toaparticular 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 15 other allowance in cases of termination of services in the public interest isapplicable 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 hisrightstopension' appearing inregulation 45 does 20 nottakeawaythediscretionary powersofthe 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 inthepublic interest' and theword 'basis' inthisexpressionmeansthepowers-discretionaryatthat-thatthe 25 Council of Ministershasundersection 7of the Law. Any other interpretation would lead to absurdity in the sense that a person submitting his resignation might be deprived of his pensionrights,whereasa person required toresignasaresultofa disciplinaryoffence would be entitled asofrighttothe receipt ofa 30 pension.» Relevantisalsothecaseof Loizos Sawa v. TheCouncilofMinisters,

(1984)3 C.L.R.285andtherecentcaseofAntonis Louca v. The Republic decided bythe FullBench of thisCourt on 26.9.86 in Revisional Jurisdiction Appeal No.520* and not yet reported. 35 where both the above cases were cited with approval as regards the interpretation given to Regulation 45. Imust further say that I also find that there isno contravention •Reportedin

(1986)3CLR. 1640. 109 tflalachtos, J. PapamUtiadous v. RepubUc

(1987)>fthe principle of equality, neitherby the discretion given under iegulation 45 nor on the facts of the case. Affidavit evidence was liven totheeffect thatotherofficers uponterminationof theirser-ices or upon being required to resign, had received theirretirenent benefits. This,however, does notnecessarily mean unequal 5 reatment in view of the reasonable distinctions and differentiaions existing between them and the applicant, taking intoconsileration thecircumstances surrounding each particularcase. (See ηthis respect Micrommatis u. The Republic, 2 R.S.C.C.125; and Vie Republic v.Nishan Aiakian & Others,

(1972)3 C.L.R.294. 10 Finally, I find thatthesub judice decision isduly reasoned, such easoning appearing both inthe decision itself,aswellasinthereavant file which was before the respondents atthe time thedeciion complained of was taken. For the reasons stated above, this recourse fails and is hereby 15 lismissed. There willbe no orderas tocosts. Recourse dismissed No order as to costs. 110