clr/1987/1987_3_1383.pdf

(1986)3 CLR 44)ontheground matapplicant's dismissalamountedtoa disciplinary sanction andtheapplicant hadnotbeen afforded an opportunity ofbeing heard beforehisdismissal Following the said annulment the chairman of the respondent Board informed the applicant inwritingof thecharges againsthimand invitedhim 1383 Zavrosv.DistrictOfficer Paphos

(1987)to attenda meeting of theBoard inordertoanswer them As a result the applicant attended a meeting of the Board He made a genera) statementrelating tothecharges against him, but refused to answer any questions putto him On the matenal before it, the Board decided to dismiss the applicant, furthermore it decided togive retrospective effect to the dismissal as from 22 11 84.thatisthedateofthefirst dismissal, whichhadbeenannulledbythis Court 5 Hencethisrecourse Counsel for the respondents raised "an objection that the applicant lacks legitimate interest, because he is only challenging the retrospectivity of the sub judice actand has notrenderedany services during therelevant penod In support of his submission counsel relied on Sawides ν PublicService Commission

(1985)3 CLR 1749 at 1755 10 Held,annullinginpartthesubjudicedecision

(1)Itisnotnecessary todeal 15 with the issue of legitimate interest, because the applicant ts not only challenging theretrospectivity of hisdismissal, but,also,hisdismissal assuch In any event the facts of Sawides' case, supra should be distinguished from the facts of this case Indeed, in Sawides' case the applicant voluntanly decidednottooffer hisservices (andhechallenged onlytheretrospectivity of 2 0 his dismissal), whereas inthiscase theapplicantwas prevented by theBoard by thelatter's annulleddecision from offenng his services

(2)The first dismissal of the applicant has not been annulled for formal reasons but for substantial invalidity (Morsisν Republic

(1965)3 CLR 1at pp 11 and 12 adopted) Thiscase does notfall within oneof therecognised 2 5 exceptions to the pnnciple that an administrative act cannot be given retrospective effect If follows that the sub judice act has to be annulled to the extenttowhich itwas given retrospective effect.

(3)On the matenal before the Court it was reasonably open to the respondent Board todismiss theapplicant 30 Subjudicedecisionannulled mpart No orderas tocosts Casesreferredto Zavrosv TheDistrictOfficerofPaphos

(1986)3 C L R 44, S*wides ν ThePublicServiceCommission

(1985)3 C L R 1749, Morsisv TheRepublic

(1965)3 C L R 1, 1384 35 3 C.L.R. Zavrosv.DistrictOfficer Paphos HjiGeorghiou v.TheRepublic

(1968)3C.L R.326; TheRepublic v. Mozoras

(1970)3C.L.R. 210 Recourse. Recourse against the decision of the respondents to terminate 5 applicant's servicesas an Inspector ofthe Ir.-.provement Boardof Kouklia. G. Triantafyllides, forthe applicant. K.Chrysostomides, for the respondents. Cur.adv. vult. 10 SAWIDES J. read the following judgment. The applicant challenges the decision of the respondents contained in a letter dated 7.8.1986, whereby his services as an Inspector of the Improvement Board of Kouklia were terminated retrospectively, asfrom 24.11.

1. 15 The applicant was in the service of the Improvement Board of Kouklia (I.B.K.) village as an Inspector since 23rd November 1965, on a month to month basis in order to exercise, amongst others,thedutiesofaccountantandsecretary oftheBoard,which included, inter alia, the regulation of the water supply of the 20 village, the checking of the water consumption in each house as recorded onthewatermeters,thecollection ofanyduesforwater consumption and any fees and rates imposed by the Board. As from December, 1977, the applicant was also consecrated as a priest ofthevillage,with the consent of the respondents. 25 Asa result of certain accusations made against him concerning hisbehaviour towardsafemale inhabitant ofthevillagethe I.B.K. decided on22.11.1984 to terminate the services of the applicant and such decision was communicated to him by letter of respondent 1asChairman of the Board dated 24.11.
2. 30 The applicant filed Recourse No. 15/85 challenging the above decision. By a judgment delivered by me on the 12th February, 1986inthe above case, I annulled thesubjudicedecision on the ground that mere was violation of the rules of natural justice, in thatthe applicant was not afforded the opportunity to be heard 35 before his dismissal. (See Papaloannis Zavros v. The District OfBctr of Paphos as Chairman of the Improvement Board of KovkBaandAnother

(1986)3 C.L.R. 44atpp.50,51). 1385 S a w i d e sJ . Zavrosv.DistrictOfficerPaphos

(1987)After the annulment of the decision of the Board toterminate theservicesof theapplicant,the I.B.K. following the observations of the Court which led to the annulmentof the decision, decided tocalltheapplicantbefore ittoanswer thecharges against himand offer his explanations.Thecharges are containedinalettersigned by the Chairman of the Board dated 8th May, 1986 addressed to the applicant and arethat- 5 (

1. a)The applicant in November, 1984 in the course of discharging his duties,handeda lovelettertoamarried womanin thevillage; (
2. b)during the years 1981 to 1984 he embezzled money received from thetouristshopat«PetratouRomiou»and/orfailed to collect money due to the I.B.K. from the said shop. By the aforesaid actions the applicant rendered himself incapable of, and/or impossible for himtoexercise theduties of an Inspectorin 15 the future. The applicant was invited to appear before a meeting of the I.B.K. and answer the charges against him. Theapplicantattendedthemeetingof theI.B.K.whichwas held on 17.6.1986to face the two charges against himas contained in 20 the above notification. The procedure followed at such meeting andthedecision taken appear intheminutesof such meeting.The relevant parts read as follows:- The Chairman then called Mr.Zavros before the Board to 25 answer the charges. The Chairman read out the charges/ accusations as follows:- Then he invited Mr.Zavros to answer the above charges. Mr. Zavros replied as follows: -Inrespect of the first charge/ 30 accusation: Ί do not admit, I state that the Police and Prosecution Authorities investigated the matter and there is no case. Inany event thealleged letter has no relation at all with my professional duties as Inspectorof the Board. I deny that I delivered any letter in the course of discharging my 35 dutiesasanInspectorof theImprovementBoardofKouklia.· 1386 10 3C.L.R. Zavrosv DistrictOfficer Paphos S a w i d e s J. Then the Chairman asked him to answer certain clarifying questions but hjs answer was «Ihave no more to say. I cannot answer». Nevertheless, the Chairman proceeded with certain questions whereupon the applicant stated that ifmore questions 5 wereputtohim hewasgoingto departwhich infact he did. The Board then proceeded onthematerialbefore it,totake the subjudicedecision, the materialpartofwhichreadsasfollows:- 10 15 20 « the Board havingreconsidered the circumstances which had formed the basis of itsdecision of.22.11.1984 for the dismissal of Papaloannis Zavros,that isthe complaint of ,the lady to whom Papaloannis Zavrosbehaved improperly , the decision of the Bishop of Paphos to discharge him temporarily from hisdutiesasapriestforthesamereason and later to transfer him to another community, the hand-written letter itself, the hostile feelings and the unrest which were created in the village against him, the finding that for the aforesaid reasons it isnot possible for him tobe accepted in the community asan Inspectorvisiting frequently the houses of the inhabitants at any time, decides to dismiss him and hereby dismisses Papaloannis Zavros from the post of Inspectorofthe Improvement Board of Kouklia.» The Board further proceeded to giveretrospective effect tothe dismissal of the applicant as from 22.11.1984, inview of the fact that the annulment bytheSupreme Courtof itsprevious decision 25 todismisshim wasdue toprocedural grounds. As to the remaining charges against the applicant, the Board postponed itsdecision pending the final decision of the Criminal Courtwhichwastryingthecase. The above decision was communicated to the applicant by 30 letter dated 7.8.1986 in which the reasons contained in the decision ofthe Boardfor hisdismissalare setout. Asa result, the applicant filed the present recourse. Counselfortheapplicantcontended thattherespondentscould notterminatetheservicesoftheapplicantastheoffence forwhich 35 he was charged isnot an offence committed in the course of his employment or relatedtothe discharge ofhisdutiesand, further, thatsuchdismissalcouldnothavebeen madewitharetrospective effect. 1387 S a w i d e sJ . Zavrosv.District Officer Paphos

(1987)Counsel for the respondents argued that the applicant is challenging only the retrospectivity of his dismissal and in this respecthehasnolegitimateinteresttopursuethisrecourseinview of the fact that he was not rendering any services at all as from 24.11.1984, the date of his original dismissal. He further 5 submitted that the subjudice decision falls within the exemptions tothe rule againstretrospectivity ofadministrative acts,bearingin mind that it was taken as a result of an annulling decision of the Courtwhichwasmadeon formal grounds,thatisthe failure ofthe respondents to afford the applicant the opportunity of being 10 heard, a defect which hasbeen cured by the subjudice decision. Counsel concluded by stating that in case it is decided that the applicant is also challenging his dismissal, that the decision to dismiss him was properly taken and justified inthe circumstances of the case. 15 Counsel for the applicant clarified, by his reply, that the dismissal of the applicant is also challenged by the present recourse and that the applicant possesses a legitimate interest to challenge the retrospectivity of his dismissal. The case, counsel added, does not fall within theestablished exemptions tothe rule 20 againstretrospectivity ofadministrative acts;theannulmentbythe court of theprevious decisionoftherespondents wasnotmadein respect of a matter of a mere formality but of a breach of the fundamental rulesof naturaljustice.Counselfinallysubmitted that the sentence imposed wasan excessive one having regard tothe 25 circumstances of the case and the longservice of the applicant. Before proceeding to examine the validity of the sub judice decision, Ishalldeal briefly withthequestion oflegitimate interest raised by counsel for the respondents. Counsel for the respondents relied on the case of Sawides v. The PublicService 30 Commission

(1985)3 C.L.R. 1749 at p. 1755, in support of his submission that because the applicant did not offer any services since 24.11.1984, the date of his original dismissal, he was not entitled to any payment and did not possess, as a result, any legitimate interest to pursue the recourse, once he is not 35 challenging hisdismissalas such. Iwish topointoutatthisstagethatithasbeenfinallyclarifiedby counsel andftisalsoobviousboth fromtheapplication itselfand theargumentsofcounsel thatthedismissaloftheapplicantisalso challenged. Inview of this, I find itunnecessary to deal withthis 40 1388 3 C.L.R. Zavrosv.District OfficerPaphos S a w i d e sJ . issue, but inany event I feel thatI should stress thatthe Sawides case (supra) was decided on its own facts and should be differentiated from the present one, m that the applicant there voluntarily decided not to offer his services (and he challenged 5 only theretrospectivity of his dismissal) whilst inthepresent case it was the respondents who, by their decision, prevented the applicantfrom offering hisservices. Thissubmission of counsel for the respondentsis,therefore, dismissed. Aperusal of theminutesof the Board discloses thatitsdecision 10 is in fact twofold. Underparagraph

(1)at page 3 of the minutesa decision was taken«todismiss»theapplicant.Underparagraph

(2)at page 4 afurther decision was taken that«his dismissal will have retrospective effect as from 22.11.1984». Ishall deal first with the question of retrospectivity of the sub 15 judice decision. It is a well established principle of Administrative Law than an administrative act or decision cannot as a general rule be given retrospective effect subject tocertainexceptions.Such exceptions have been enumeratedinthecase of Sawides v.P.S.C.(supra)at 20 Ρ- 1755asfollows:' 25 30 «Itisabasic andwellestablished principleof Administrative Law that administrative acts cannot, as a rule, be given retrospective effect. To this general rule there are, however, certain exceptions. Such exceptions, as stated in the Conclusionsfrom theCase Law oftheGreekCouncilofState (1929-1959) pp. 197-198, Kyriakopoulos on Greek Administrative Law. 4th ed., vol. B, pp. 400-401 and Stassinopoulos on the Law of Administrative Acts

(1951)pp. 370-373 includethe following: (

1. a)When there is specific legislative provision to the contrary. (b)Where the administrative act is isv.ed in the course of theexecution of a law having retrospective effect. 35 (
2. c)In the case of an act issued in compliance with a judgment of theCourt. (
3. d)Upon the annulmentby the Courtof an administrative actfor formal reasonssuch as lack of duereasoningetc. 1389 S a w i d e sJ . Zavrosv.District OfficerPaphos

(1987)(

1. e)Ifsuch retrospectivity is necessitated by thevery nature of theact. (
2. f)Inthe case of an actrevoking a previous illegal one» Thelegality of thedismissal of apublicofficer with retrospective effect hasalso been considered inMorsisand TheRepublic

(1965)5 3 C LR 1;HadjiGeorghtou ν TheRepublic

(1968)3 C LR 326, and by the Full Bench in The Republic and Mozoras

(1970)3 C L R 210 Intheabove cases thepnncipleof non-retrospectivity of administrative acts as wellas its exceptions, as theyevolved by the Case Law in Greece and France and in Cyprus, were 10 considered and it was held that the dismissal of a public officer cannot have retrospective effect but it being an individual administrative act, it becomes effective as from the date of its communication tohim Iaminfull agreementwiththejudgments intheabove cases and 15 Isee noreason for departing from theminthecircumstancesof the present case. Furthermore,thefacts inMorsiscase aremoreorless in line with the facts in the present case In Morsis and The Republic theapplicant,abailiff andprocess-server, was convicted of the offence of false sweanng and was sentence on 17th March, 20 1962 to£10 -fine. An appeal against hisconviction was dismissed on the4th of June, 1962 On the 12th July, 1962, the Public Service Commission dismissed him as from the 17th March, 1962 The applicant successfully challenged hisdismissal onthegroundthathehadnot 25 been afforded an opportunity to be heard in the matter On the 28th February, 1963, a letter was addressed to the applicant informing him that his dismissal was being contemplated on the ground of his conviction and was requested to appear before the Commission inordertomakehisrepresentations.After theΡS C 30 heardhisrepresentations,itdecidedtodismiss him retrospectively as from the 17th March 1962, the date of his conviction. As a result,theapplicantfiledarecourse challenging the retrospectivity of his dismissal. Triantafyllides, Ρ after making an elucidative reference to the Greekand French authorities on the matterand 3β' reviewing the case law of the Council of State in Greece, concluded?sfollows atpp. 12,13:- 1390 3 C.L.R. 5 10 15 Zavrosv.DistrictOfficer Paphos S a w i d e s J. «In all the circumstances of this Case, as the decision in question of the Public Service Commission clearly offends against the principle of non-retrospectivity of administrative acts and as such decision does not - for the reasons stated already inthisJudgment - fall within any recognized relevant exception tothesaid principle,I have reachedtheconclusion thatthesaid decision hastobeannulledtotheextenttowhich ithas been made to have retrospective effect before thedate when it was taken, the 27th March, 1963; in this respect the submission of counsel for Applicant that the dismissal could only have been made retrospective with effect from thedate when theApplicant appearedbefore theCommission,i.e.the 8th March 1963, is inmy opinion,notwellfounded, because once it is a decision which could not have been made with retrospective effect, it could nothave been made with effect from any date priortoitsbeing taken.» Morsiscase was approved by the Full Bench inthe case of 77ie Republic v.Mozoras(supra)inwhich itwas held atρ219 that: 20 25 «The canonthatadministrative acts ordecisions cannot, in the absence of legislative authorization for the purpose, be given retrospective effect is a cardinal one, one of the most long-standing and firmly entrenchedrules of public law; and the exceptions theretohave cometobe welldefined over the years (see, inter alia, Conclusions from the Decisions of the Greek Council of State 1929-1959 p. 197; Traite de Contentieux Administratif by AubyandDrago

(1962)Vol. Ill, p. 18; Odent on Contentieux Administratif

(1966)p. 1214; and ourown case of Morsisand the Republic

(1965)3C.L.R. 30 As to the contention of counsel for the respondents that the previous decision was annulled for formal reasons and therefore the case falls within one of the recognised exceptions as enumerated by L.Loizou,J. inSawides v.P.S.C.(supra)at page 1755, namely, under paragraph (d), the answer may be found in 35 thejudgment ofTriantafyllides, P.inMorsiscase (supra)atpp. 11, 12 in which the same argument was advanced, and which Ifully indorse for thepurposes of thepresent case, itreads as follows:«The possibility of making a new administrative actto take effect on the date when a previous administrative act,of the 1391 S a w i d e s J. Zavrosv.DistrictOfficer Paphos

(1987)same content, would have taken effect had it not been annulled for only formal reasons,is,indeed, an exception to the general rule against retrospectivity; it has been touched upon by this Court in the judgment of Kallourisand the Republic, 1964C.L.R.313. Inmyopinion, however, thefirst dismissalofApplicant has not been annulled for formal invalidity but for substantial invalidityand, therefore, thesecond dismissal could not have been made retrospective,on thestrength oftheabove.Itwas notacasewheredefective composition orotherformaldefect 10 had prevented, an otherwise properly taken decision, from being valid, but it was a case where no proper disciplinary proceedingshadtakenplaceatall,becausetheApplicanthad not been afforded an opportunity tobe heard.» Bearing in mind the above, in all the circumstances of the 15 presentcase,Ihavereachedtheconclusionthatthedecisionofthe respondents to the extent to which it has been made to have retrospective effect before the date it was taken, the 17th June, 1986,clearlyoffends againsttheprincipleofnon-retrospectivityof administrative actsand as itdoes not fall within ofthe recognised 20 exceptionstothesaidprinciple,hastobe annulled. Icome next to consider thevalidity of the decision concerning thedismissaloftheapplicant asfrom thedatewhenthesubjudice decision was taken. Itmaybeobservedthatinarecoursesuchasthepresentonethe 25 Court can either confirm or annul the subject matter of the recourse in whole or in part. Such course is open under Article 146.4(b). (See Morsisand TheRepublic (supra) atpp. 12and 13 and theauthorities referred totherein). The decision taken by the respondents on 22.11.1984 was 30 annulledbymeinCaseNo.15/85onthegroundthatbeinginthe form of a disciplinary sanction the applicant should have been afforded theopportunity ofhavingbeen heard.Asaresultofsuch decision, the respondent I.B.K.addressed on the8th May, 1986, a letterto theapplicant informing him of the disciplinary charges 35 againsthin andrequesting him toappear before itand make his represents ions on a fixed date. Theapplicantdulyappeared on 17thJune, 1986accordingtothenotification senttohimandwas afforded the opportunity to be heard, when he made a general statementandrefusedtoansweranyquestionsputtohim. 40 1392 5 3C.L.R. Zavrosv.DistrictOfficerPaphos S a w i d e s J. On the material before me and for the reasons stated in the decisionoftherespondentI.B.K.Ifindthatitwasreasonablyopen tothe respondents toreach their decisior todismissthe applicant and that such decision waswell founded. 5 Astothe contention of counsel for applicant that the sentence imposedwasexcessive,itwasreasonably opentothe respondent to impose suchsentence inthecircumstances ofthe case andthe applicant has failed to establish that the respondents exercised theirdiscretion inan improper manner inthis respect. 10 As Isaid earlier the whole decision should not be annulled. It should be annulled only inpart, asstated above, that is,itshould be limited to the extent of having effect as from the date when it was taken, that is, the 17th June, 1986 and I make an order accordingly. Inthecircumstances, Imakenoorder forcosts. 15 Sub judice decision partlyannulled. No orderastocosts. 1393