clr/1987/1987_3_965.pdf

(5)—Refusinggrantof annual increment tomember ofrespondents'personnel — Performanceof such member relating notonly tothe preceding, but,also, topastyears as well, takeninto considerationindetermining theissue—Subjudice decision contrary tosaid regulation. Administrative Law — Generalprinciples — Proper administration —Refusalto grant annual increment toemployee ofPublic Corporation for having failed to limit herabsences forill health tooccasions, where such absences were unf*vniHahl$_--AIIof suchemployee's past absencesjustified bysick-leaves backedbymedical certificates— Subjudice decisionannulled for offending proper administration. 15 20 25 By means of this recourse the applicant impugns the decision. communicated to herby letter dated 20.1.84, whereby theapplicant was informed that, since from the annual service report, it appeared thather performance wasnot uptothe required standardand as she had shownno progressanddidnotlimitherabsencesfromworktooccasionsonwhichsuch absenceswere unavoidable, therehadnotbeenapprovedthepayment toher ofthe annual increment payable toher inJanuary 1984. Hence this recourse. It must benoted that invirtue ofthe aforesaidReg 15

(5)the advancement inasalary scale ofa member of the personnel of the respondentsisdeterminedbytheGeneralManager oftherespondent, onthe basisofasatisfactory service reportfortheprecedingyear Held, annulling the subjudice decision:

(1)Asitisclear from thematenal beforetheCourt,indeterminingthe issue ofincrement the GeneralManager / 965 M.VFoudlv.CY.T.A.

(1987)took into consideration, contrary to Regulation 15

(5), not only the service report for 1983, but, also, applicant's performance and, in particular, her absencesdunngpastyears

(2)In anyevent the performance of the applicant dunng 1983was rated with8outof 10marksand,therefore,itcouldnotbetreatedasunsatisfactory 5L

(3)All applicant's past leaves of absence for ill health were backed by medical certificates. Itwasnotpermissible topenalizethe applicantforsuch sick-leaves

(4)It follows mat the sub judice.decision has to be annulled as being contrarytoReg. 15

(5),contrarytoproper administration andashavingbeen reached inexcessorabuseof power 10 Subjudice decisionannulled. No orderastocosts Recourse. Recourse againstthedecision oftherespondenttowithholdthe 15 payment to applicant of the annual increment which became payable inJanuary,

1. N.Panayiotou, forthe applicant. A. Hadjiloannou, forthe respondent Cur.adv. vult. 20 TRJANTAFYLUDESP.readthefollowingjudgment. Bymeans ofthepresentrecoursetheapplicantchallengesthedecisionofthe respondent to withhold the payment to her of the annual increment whichbecame payable inJanuary
2. AttKe material time the applicant was a Telephone Operator, 25 1stGrade,seconded totheTelephone Directory Section. Bymeans of a letter dated the20th January 1984the Director of Personnel of the respondent Authority informed the applicant that,sincefrom theannualprogressreportsaboutheritappeared thatherperformance ingeneralwasnotuptotherequiredbythe 30 Authority standard and as she had shown no progress despite warningsandrecommendations toimproveherperformance and to limither absences from work due to illhealth to occasions on which such absences were unavoidable, there had not been 966 3 C.L.R. Mavraudlv.CY.T.A. Triantafytllde· P. approved the payment toher ofthe annual increment payableto herinJanuary
3. Onthe 13th February 1984theapplicantprotested inwritingto the General Manager of the respondent Authority against the 5 withholding of herincrement and on the 27th February 1984she was informed that the payment to her of her annual increment would depend on her progress and improvement of her workin general. Under the provisions of regulation 15

(5)of the Cyprus 10 Telecommunications Authority (Personnel) General Regulations, 1982 (No. 220, in the Third Supplement, Part I, to the Official Gazette, dated the 26th July 1982) the advancement in a salary scaleofamember ofthepersonnel oftheAuthority isdetermined by the General Manager of the Authority on the basis of a 15 satisfactory progressreport fortheprecedingyear. Counsel for the applicant has submitted that, in contravention of the said regulation 15

(5), it was not only the progress report regarding the performance of the applicant in the immediately preceding year that was taken into consideration but, also, the 20 performance oftheapplicant,andherabsencesfromwork,during previousyears. As a matter of fact from the aforesaid letter dated the 20th January 1984, by means of which the sub judice decision was communicated tothe applicant, aswellasfrom other documents 25 produced by the respondent Authority during the present proceedings, there emergesclearlythat indecidingon the matter of the non-payment to the applicant of her annual increment in January 1984there wastaken intoconsideration, contrary tothe provisions of regulation 15

(5), not only the performance of the 30 applicant as described inthe progress report for 1983, but, also. herperformance duringpastyearsand, particularly,herabsences from duty, due toillness,insuch years. Counsel for the applicant has submitted further that the sub judice decision is inconsistent with the contents of the progress 35 reportabout herfor the year 1983. Actuallythereappearsfrom suchreportthattheperformanceof the applicant in 1983 was rated by 8 marks out of 10 and. therefore, itcould not betreated as unsatisfactory. 967 TriantafyllldesP. Mawoudlv. CY.T. Α.

(1987)Itisclear,also,thattheabsences oftheapplicantfrom work due to ill healthhave influenced therespondentAuthority inreaching the sub judice decision to withhold her annual increment, even though herleaveofabsenceoneachsuchoccasionwas backedby a medical certificate. Inmy opinion itwas impermissible for the 5 respondent Authority topenalize the applicant because of being absent onsick leave on anysuch occasion. In view of all the foregoing the sub judice decision has to be annulled as being contrary to the aforementioned regulation 15

(5), and as being, also, contrary to the principles of proper 10 administration andashaving been reachedinexcessandabuse of powers. Intheresultthepresentrecourse succeeds; butI shall notmake any orderas toits costs. Subjudice decisionannulled. 15 No orderas to costs. 968