clr/1987/1987_3_1413.pdf

(1967)3 C.L.R. 559 distinguished — The amendment disposed of a preliminary objection thatrecourse wasoutoftime Executoryact—Hierarchical recoursetoMinisterofLabourandSocialInsurance pursuanttosection 78oftheSocialInsuranceLaw 1980,LawNo. 41/80, as amended —Relevantdecision ofMinisterisofanexecutory nature. Findingsoffact byAdministration—Judicial control—Principlesapplicable. 10 15 Dunng the penod 1582 -30 11.82the applicant was drawing invalidity pension from theSocial Insurance Fund. Following investigation, the claims examiner decided that dunng the aforesaid period the applicant was in fact working and, consequently, requestedbyletterdated9.1 84theapplicanttorefundtheamount,whichhe received for such period and return his medical card for free medical attendance. Theapplicantchallenged theaforesaid decisionbymeansofahierarchical recoursetotheMinisterofLabourandSocialInsurance. 20 By letter dated 28.2.84 the Minister dismissed the recourse. Hence the presentrecourse,inwhich,bymistake,thedateofthedecisionoftheMinister isstatedtobe9.1.84,i.e.thedayoftheletterscommunicatingthedecisionof theclaimsofficer. Theapplicantapplied forleavetoamend thedate. 1413 Magtdes v. Republic

(1987)Held, dismissing the recourse

(1)Itisobvious that the sub judice decision was taken on282 84 It cc uldnothavebeen communicatedon9 184 The application foramendmentwas, therefore,granted[Par&iimniBus Co Ltd ν Republic (19^7) 3 C L R 559distinguished) The amendment disposesthe preliminary objectionthat the recourse isoutoftime 5 (2} The decision of theMinister was issued upon ahierarchical recourse filed invirtue ofsection 78ofthe Social Insurance Law41/80 asamended It follows that it isofan executory nature {Tsouloftas ν TheRepublic

(1983)3 C L R 426)

(3)In the light of the matenal before him,the sub judice decision was 1 0 reasonably open tothe Minister

(4)The submission that the Minister did not give to the applicant the opportunity of being heard cannot be accepted because his views, which amounted toblunt denial that hewaswori"ng dunng the penodinquestion, were in fact forwarded to the claims officers and generally to the Social 1 5 Insurance Department Recourse dismissedwith costs Cases referred to Parahmni BusCo Ltd ν Republic

(1967)3 C L R 559, Tsouloftas ν Republic

(1983)3C L R 426 20 Recourse. Recourse against the confirmation by the respondent on the hierarchical recourse of applicant against the decision of the ClaimsOfficer whereby applicantwas asked torefund theamount of £704.87 cent being invalidity pension received by applicant 25 during the period of 1.5.82 -30 11.82 as he was working during the aforesaid period E. Serghides, for the applicant. A. Papasawas, Senior Counsel of the Republic, for the respondent. Cur. adv.vult. LORIS J. read the following judgment. The applicant, an ex PoliceConstable,applied on22.4.81 (vide red 1inExh. 1)tothe Department of Social Insurance (Ministry of Labour and Social 1414 3 C.L.R. Magldesv.Republic Lorta J · Insurance) praying for invalidity pension as allegedly he was unable to work; he was referred by the Claims Examiner to the Medical Board for opinion; the Medical Board having examined the applicant decided that the applicant willremain incapable for 5 workforaperiod S>fthree monthsrecommending re-examination of the applicant at the end of such period. Atthe end of the first period aforesaid, the applicant was again re-examined by the Medical Board and he was again found by the Board to be incapable for workforanother period ofthree months;the Board 10 recommended againre-examination oftheapplicantattheendof this second period (vide red 25 in exh. 1). The applicant was examined by the Board for a third time on 4.5.82 and he was found incapable for workfora further period of sixmonths. (Vide reds26-29inexh. 1).TheapplicantwasexaminedbytheBoardfor 15 a third time on 4.5.82 and he was found incapable for work for a further period ofsixmonths, (videred26-29inexh. 1).The Board intheirreport(videred28inexh.1)recorded thathewas suffering from persistent insomnia, chest discomfort, lack of interest and depression and stated that he will be incapable for work for a 20 further period of six months adding: «but a statement cannot be made now whether after that period claimant will or will not be incapable for work.» PursuanttotheabovetheSocialInsuranceDepartment granted to the applicant invaliditypension originally for a period of three 25 months followed by a second period of three months thereafter, and finally for a further period of six months;this lastperiod was running from 1.4.82 - 30.11.82. The appropriate invalidity pension waspaid totheapplicant for alltheaforesaid periods. As the applicant was not receiving pension after the 1st 30 December 1982, he addressed a letter, through hisadvocate, on 10.3.1983 (vide appendix 1 attached to the recourse) to the Director of Social Insurance inquiring of the reasons for nonpayment of such pension after that period. Areply by the Social Insurance Department setoutinletterdated 28.4.83(Appendix2 35 attached to the Recourse) was forwarded to applicant's counsel, statingtheapplied for, reasons. Counsel on behalf of the applicant addressed another letter on this subject, dated 24.5.83, to the Director of Social Insurance (videappendix 3 attached to the recourse) and in replythereto a 40 letterdated 7.7.83 (videappendix4attached totherecourse) was addressed on behalf of the Director to counsel acting for the 1415 LorisJ. Magidcsv.Republic

(1987)app'irant We shall ho'? the opportunity of referring to such correspondence later on inthe present judgment. Finally in consequence of the aforesaid correspondence the Claims Examiner of the Social Insurance Department communicated hisdecision tothe applicant which issetoutintwo 5 lettersof9.1.84 (videappendices5and6attachedtotherecourse) whereby he wasasked, interalia: (

1. a)to refund to the Social Insurance Department the amount of £704.87 cent, being the invalidity pension he received irregularly for the period of 1.5.82 - 30.11.82 as he was 10 working during the aforesaid period, and (
2. b)to return totheSocialInsurance Department hismedical card for free medical attendance. Theapplicant whoreceivedtheaforesaid decisionoftheClaims Examiner, a couple of days after the 9.1.84, filed pursuant to s. 15 78

(1)of the Social Insurance Law 1980 (Law41/80 as amended) a hierarchical recourse to the Minister of Labour and Social Insurance on 24.1.84 (videappendix 7attached tothe recourse). The Minister'sdecision onthehierarchical recourse issetoutin a letter dated 28.2.84 which is appendix 8 attached to the 20 recourse. The applicant by means of the present recourse impugns the aforesaid decision of the Minister in the hierarchical recourse aforesaid. Iconsider itpertinent atthis stage to mention that prayer Aof thisrecourse wasoriginally referring to the date ofthe decision of 25 the Claims Examiner which isthe 9th Janurary 1984.Some time after the filing of the recourse counsel on behalf of the applicant applied in writing for an amendment with a view to altering the date and inserting the actual date of the decision of the Minister given on the hierarchical recourse which is the 28th February 30 1984; there isno dispute about itand learned counsel appearing for the respondent conceded that the date should be the 28.2.84 and consented to the application for amendment. Of course independently of the consent of counsel for the respondent Iwas duty-bound to examine the application for amendment as it 35 touched the time limit envisaged byArticle 146.3. Having considered theaffidavit insupport oftheapplication for amendment and having heard argument by counsel in favour of 1416 3 CL.R. Magldesv. Republic Loris J. the amendment {counsel lor respondent as already stated just confined himself in consenting to it) I directed my mind to the authorities. Inspite of the fact that the case of Paralimni Bus Co. Ltd. v. The Republic

(1967)3 CL.R. 559 (decided in the first 5 instance by the learned President of this Court) was militating against thegranting of the amendment,I arrived attheconclusion that the said case must be distinguished' from the facts of the present one; in the present instance obviously the recourse was directed against thedecision given inthe hierarchical recourse by 10 the Minister; and it is apparent from the material in the relevant administrative files which are before me as well as from the relevant extracts attached tothe recourse and the oppositionthat such decision (set out in Appendix 8) is dated 28.2.84 and could not therefore be communicated to the applicant on 9.1.84 as it 15 was stated inprayer Aof theRecourse, inserted therein obviously through clerical error. For all the above reasons Ihave allowed the amendment on 22.3.85 after hearing the relevant application which was filed as early as the 12th November, 1984.1 may add atthisstage thatthe 20 amendmentas above disposes of thefirstpreliminary objection of the respondent tothe recourse tothe effect thatthe recourse was filed outof time. As regards the second preliminary objection to the effect th.it the sub-judice decision is nota decision of an executory nature, I 25 feel duty-bound to repeat that the present recourse is directed against the decision of the Minister given on a hierarchical recourse to him pursuant tothe provisions of s. 78 of Law 41/80 and the decision of the Ministerina hierarchical recourse is cf an executory character (vide Tsouloftasv. Republic

(1983)3 C.L R 30 426). Now, on the merits of the case; the gist of the recourse is whether the applicant was working from the ι 5 82 up to 30.11.82, a period during which he was reviving an invalidity pension. 35 Itis clear from thematerial before me thatthe Social Insurance Department held a thorough investigation upon information received that the applicant was working at least from the 15 82 onwards as an employee of the Smoke Repack Co. Ltd., of Limassol. As a resultof this investigation at least five statements 14.!7 LorisJ. Magldes v.Republic

(1987)were taken, inter alia, from several persons by an appropriate Officer oftheSocial Insurance Department. Thesestatements appear intheadministrative file which isexh. 2 before me.(Vide reds2 -11inexh.2). The statements were taken from thefollowing persons: 5 (

1. a)Christakis Christodoulides (vide red 10-11in exh. 2),the person whotook overasthedirectorofSmoke Repack Co.Ltd., as early as March 1982 and stayed with the company up to approximately theendofMay, 1982; (b)AlexandrosStylianidesofLimassol,(videreds2and3inexh. 10 2); he was appointed on 1.4.82 as a person in charge of the production of the factory of the company and worked with the company up to 13.9.82 when the factory closed down temporarily. (
2. c)Christodoulos Trimikliniotis (vide red 4 in exh. 2);he isa 15 CustomsOfficer andassumeddutiesatthefactory inApril1982as responsible officer onbehalf ofCustomsforCustoms supervision of the repacking ofcigarettesinthefactory ofthe Company. (
3. d)Sawas Georghiou (vide reds 5 and 6 in exh. 2);a Trade Union Organizer who was visiting the factory for purposes of 20 solving problems arising between the workers and the management ofthe factory. (
4. e)Spyros Charaiambous, (vide reds 7,8 and9 of exh. 2), an unemployed graduate of a University, whowasappointed asa foreman in the factory as early as 1.4.82 and worked thereto 25 throughout theperiodin question. From the material before me it is abundantly clear that the Claims Examiner hadinteraliathesestatementsbefore himwhen examining thiscaseandbefore givinghisdecision on9.1.84 (vide appendices 5and6attached totherecourse). 30 It is also apparent that the aforesaid material, including the statements in exh. 2, were before the Minister of Labour and Social Insurance when he was examining the hierearchical recourse under consideration. 1 hold theviewthatthestatements of the five persons referred to above and in particular the 35 statement of Christakis Christodoulides, ((
5. a)above) the person who appointed theapplicant atasalary of£200 onbehalf ofthe company to work as a security officer of the factory, and the 1418 3C L . R . Magidesv.Republic LorU J . statement ofSpyrosCharalambus (reds7.8and9ofexh.2)prove beyond anydoubtthattheapplicantwasworkingfortheperiodin question asan employee ofthe Company and he wasbeingpaid a salaryforsuchservices. 5 Inthe circumstances itwas reasonably open to the Minister to reach his decision in the hierarchical recourse which is being impugned bythe present recourse. Itwasargued by counselofthe applicant inhiswritten address thattheMinisterdidnotcallupon theapplicantbefore reachingat 10 thesub-judice decision inordertohave hisviews. In this connection it must be noted that the views of the applicant were forwarded by counsel acting on hisbehalf, to the Claims Examiner and generally to the Social Insurance Department on several occasions prior to the issue of the sub15 judice decision. Applicant's stand was always to the effect that he was never working throughout the period of 1.5.82-30.11.82 with the Smoke Repack Co. Ltd., (vide inter alia, letter addressed on his behalf by his counsel on 24.5.83, appendix 3 attached to the 20 opposition.)Thusthe applicanthadthe opportunity ofvoicinghis views prior to the sub-judice decision; and his views amounted always toa blunt denial that he wasworking inthe factory of the aforesaid company, whilst the material in Ex. 2 indicates clearly that he was so employed and he was being paid for such an 25 employment during the period for which he was drawing an invaliditypension from theSocial Insurance Fund. Intheresultpresentrecourseisdoomed tofailure and ishereby dismissed;applicanttopaythecostsofthe respondent, whichwill beassessedbythe Registrar. 30 Recoursedismissedwith costsagainstapplicant. 1419