3C.L.R. 1986November29 [TR1ANTAFYLUDES Ρ) IN T H E MATTER O F ARTICLE 146 O F T H E C O N S T I T U T I O N IOANNIS FAKKAS, Applicant, ν T H E REPUBLIC O F CYPRUS, T H R O U G H T H E C O U N C I L O F MINISTERS, Respondent (Case No 80/80) Natural Justice — Right to be heard— Termination in the public interest of 5 applicant sserviceson account ofhisconduct dunng the 1974 coup d 'etat— Opportunity given to applicant to answer statements taken against him in 1975,butnot furtherstatementsrelating tohissameconduct takenin 1979— Inthecircumstancestherewasno contravention oftherulesofnatural justice Constitutional Law — Equality—Constitution Art 28—No room for complaint when each casein a category of cases is treated according to its particular facts Administrative Law—Due inquiry — Presumption ofregulanty 10 15 20 25 The services of the applicant had been terminated initially, in the public interest, pnor totheabortive coupd'etatinJuly 1974,buthewas eventually, duly reinstated on the 15th May 1975, by a decision (No 13 996) of the Council of Ministers On 31 180 the Council of Ministers decided, to terminate applicant's services, in the public interest, under the provisions of section 8 of the Pensions (Secondary School Masters) Laws, 1967-1979, as well as in the exerciseofanyotherpowersvestedintheCouncilofMinistersinthisrespect As itappears fromadministrative records, itwas allegedthat theapplicant, dunngtheabortive coupd'etatinJuly 1974,wasoneofthosewho tookover by force the premises of the Archbishopnc in Nicosia and he was acting illegally asSecretary of the Archbishopric The grounds upon which the applicant seeks the annulment of the sub judice decision are (a) Lack of due inquiry, because the personal file of the applicant was not before the Council of Ministers, and, even if it was, its members did not have the opportunity to study it, (b) Contravention of the 1247 Fakka· v. Republic
(1987)Rules of Natural Justice, because, though applicant had been afforded an opportunitytoanswerstatementstakenagainsthimin1975relatingtohissaid conduct during the Coup d' Etat, he was not afforded such opportunity in respect of further statements taken in 1979 and relating to his same such conduct, (c)Discnmination,contrary toArt 28oftheConstitution, inasmuch asotherswhohavecommittedmuchmoreseriousdisciplinaryoffences were not dismissed from the public service, and (d)The services of the applicant couldnothavebeen terminatedforwhathehaddoneduringaperiodoftime when he was not in the public service due to the earlier termination of his servicesinJuly 1974. 5 10 Held,dismissingtherecourse:
(1)Intheabsenceofevidencetothecontrary andinthelightofthepresumptionofregularitythesubmissionasregardslack ofdue inquiryhastobe dismissed.
(2)As the applicant was afforded, in relation to the statements taken in 1975, anopportunitytoputforward hisownversion,therehasnotoccurred an actual contravention ofthe rulesof naturaljusticedue tothe fact that the applicant was not informed of the contents of thestatementstaken in1979, which,itseems,donot discloseanynewsinisterconduct bythe applicant. 15
(3)There isno room forcomplaintaboutcontravention ofthe principleof equality, which issafeguarded byArticle 28of the Constitution, when each 2 0 caseinacategoryofcasesistreatedaccordingtoitsparticularfacts,including both itsaggravatingand extenuatingaspects.
(4)Thelastsubmissionofcounselforapplicanthasnomerit.Itwasopento theCounciltoterminatetheservicesofaschoolmasterwhohadclearlyrallied tothesideofthose whocarriedtheabortivecoup d'etat. 25 Recoursedismissed. No orderastocosts. Casesreferredto: Cnstodouhdes andOthersv.TheRepublic
(1984)3C.L.R.1297. Recourse. 30 Recourse against the decision of the respondent to terminate applicant'sservicesasaschoolmasterinthesecondaryeducation. A.Markides, fortheapplicant. A. Papasawas, Senior Counsel of the Republic, for the respondent. Cur. adv. vult 1248 35 3C.L.R. Fakkaev.Republic TRIANTAFYLLIDES P.read thefollowingjudgment. By mean; of thepresent recourse theapplicantchallenges thedecision of tht respondentCouncilof Ministers,which was communicatedtohirr by letterdatedt h e ^ n d February 1980, andby meansofwhichhi: 5 services as a schoolmaster in secondary education were terminated. The said decision {No. 18.769) was taken by the Council ο Ministers on the 31st January 1980, in the public interest, undei the provisions of section 8 of the Pensions (Secondary Schoo 10 Masters) Laws, 1967-1979, as well as inthe exercise of any othei powers vested intheCouncilof Ministers inthis respect. The sub judice decision was taken because the Council of Ministers had reached theconclusion thatitwould be detrimental tothe educational service toallowthe applicant to remain init. 15 The services of the applicant had been terminated initially, in the public interest, prior totheabortive coup d' etatinJuly 1974, but he was, eventually, duly reinstated on the 15th May 1975, by a decision (No. 13.996)of theCouncil of Ministers. Then, there appears from administrative records, which were 20 placed before the Courtduring the hearing of this case, thatit was alleged thatthe applicant, during theabortive coup d' etat inJuly 1974, was one ofthose whotook over by force thepremises ofthe Archbishopric inNicosia andhewas actingillegallyasSecretary oi the Archbishopric; and his services were terminated as 25 complained of inthis case. The aforementioned decision of the Council of Ministers(No. 18.769), of the 31st January 1980, as well as other practically identical decisions, which were reached on the same day and by means of which there were terminated in the public interest the 30 services of other public officials, were challenged by recourses filed by the applicant and other persons concerned and some of these recourses were heard and determined as test cases by the FullBench of ourSupreme Court(see Christodoulides and others v. The Republic,
(1984)3 C.L.R. 1297). 35 Consequently, in so far as thejudgment inthe Christodoulides case,supra,covers any of theissuesraised inthepresentcase,too, Iam bound by, and endorse, the approach adopted by theCourt on that occasion and I need not repeat in this judgment the relevant parts of thejudgment in the Chrisodoulides case, which 1249 TriantafyffidesP. Fakkaav.Republic
(1987)areto be deemed tobe incorporated by reference in the present judgment. I shall deal, therefore, solely with issues which were raised specifically onlyinthiscasebycounsel forthe applicant: Ithasbeen contendedbyhimthattheCouncilofMinistersfailed 5 to carry out a due inquiry into the circumstances of the present case since there were not before the Council of Ministers, at the material time, the personal files of the applicant; and that evenif they were before the Council of Ministers its members did not have the opportunity tostudythem ontheir own. 10 Counsel for the applicant has indicated that he intended to adduce evidence in order to substantiate his above contentions and on one occasion he had available ex-Ministers George Tombazos and Chrysostomos Sophianos, as well as the exSecretary to the Council of Ministers Costas Cleanthous, and 15 directionsweregiventhattheirevidencewastobeadduced,inthe first instance,byway of affidavits. Ascounsel for the applicant did notfile anyaffidavit in orderto substantiate hisaforesaid contentions, I have to find, on the basis of the presumption of regularity, that the personal files of the 20 applicantwerebefore theCouncilofMinistersatthematerialtime and thatthe Council had theopportunity tostudy them before its subjudice decision; and, consequently, such decision cannot be annulled for lackof due inquiry. Counsel for the applicant has further complained that, though 25 whenstatementsweretakenfrom witnessesin1975regardingthe conduct oftheapplicant duringthecoup d' etattheapplicant was afforded an opportunity to answer their contents, further statements in relation to the same matter were taken from witnessesin 1979 and, though the applicant wasnotafforded an 30 opportunity toanswerthecontentsoftheselaterstatements,such statements have been relied on in deciding to terminate his services. Counsel for applicant submitted that, consequently, the sub judicedecision wasreachedcontrarytotherulesofnaturaljustice 35 andof proper administration. 1250 3C.L.R. Fakkas v. Republic TriantafyUldee P. There appears clearlyfrom the contents ofthe personal filesof the applicant, which I have perused, that the statements taken in 1979,likethose"teken in 1975.relatedtothesame conductofthe applicant in July 1974, when he was at the premises of the 5 Archbishopric acting illegally as its Secretary and co-operating withthosewhohadtaken itoverbyforce duringtheabortive coup d'etat inJuly
- As the applicant was afforded, in relation to the statements taken in 1975, an opportunity to put forward his own version 10 regardinghispresenceattheArchbishopricduringthecoupd' etat inJuly 1974,1am satisfied that in the present case there has not occurred an actual contravention of the rulesof naturaljustice or of the principles of proper administration due to the fact that the applicantwasnotinformed ofthecontentsofthestatements taken 15 in 1979,which, itseems,do not discloseanynewsinister conduct bythe applicant. Counsel fortheapplicantwenton toargue,also,thatArticle 28 of the Constitution hasbeen violated inthe present case because the applicant is the victim of unequal treatment, inasmuch as 20 others who have committed much more serious disciplinary offences were not dismissed from the publicservice. Inmyviewthereis.noroom for complaint about contravention of the principle of equality, which issafequarded byArticle28of the Constitution, when each case ina category of casesistreated 25 according to itsparticular facts, includingboth itsaggravating and extenuatingaspects;andI,therefore, donotfindthissubmissionof counsel for the applicant well founded. Lastly, I find no merit in the argument of counsel for the applicant that the services of his client could not have been 30 terminated forwhathehaddone duringaperiod oftimewhen he was not in the publicservice due to the earlier termination of his services in July
- Iam of the view that it was open to the Council of Ministerstodecide thatthere should notremain in the service a schoolmaster such as the applicant who had, clearly, 35 rallied tothe side of those whohad carried outtheabortive coup d'etat inJuly
- 1251 Triant»fytHd«*P. Fakka» v.Republic
(1987)Foralltheforegoing reasonsthepresentrecoursefailsanditis dismissedaccordingly;butwithnoorderastoitscosts. Recoursedismissed. No order astocosts. 1252