clr/1988/1988_3_537.pdf

(1988)Administrative act—individual (ατομική) act based on regulatory (γενιχή) act—Effecton validityof theindividualact of adeclaration thatthelatteract isvoid. The disciplinary dismissal of theapplicant from his position with the Central Bank as from 5.6.79 was annulled by this Court,on the ground 5 that theRegulations, pursuant towhich thedisciplinary proceedings were taken place,were invalid. However, prior tothatJudgment,theCentralBank of Cyprus Employ­ ees (Conditions of Service) Regulations,

(1983)(P.I.189/83) were pub­ lished intheOfficial Gazetteof theRepublic,SupplementIII (I)No. 1879 10 dated 5.9.1983(hereinafter tobe referred toas "TheRegulations"). Following the issuance of die said Judgment theapplicantwas interdi­ cted as from 12.3.85, and now disciplinary proceedings were initiated against him undertheRegulations for thesame disciplinary offence, inre­ spect of which he had been dismissed on 6.6.77 by theannulled decision i.e. persistent absence from duty. Eventually the applicant was again dismissed as from 6.9.85. 15 Hencethis recourse. Thegrounds relied uponby applicantinsupportof therecourseare: (a)thatdie Central Bank of Cyprus Employees (Conditions of Service) Regulations 1983, are void because the enabling section, s. 13

(2)of the Central Bank Law, 1963,(Law 48/63 as amendedby Law 10/79)isuncon­ stitutional. 20 (b)therespondentbank failed tocomply with Regulations 39 - 43. The argument was thatdisciplinary proceedings areheld before thein­ vestigating committeeset up unders. 39

(2)andthattheGovernorand the personnel committeeacting underRegulation 39

(3)arebound by thefind­ ingsof theinvestigating committeewhich has theopportunity tohearwit­ nesses testifying and thatthe function of theGovernoris to impose a sen­ tence on the person found guilty by the investigating committee on the advice of thePersonnel Committee. 25 30 (c)therehas been noduereasoning andabuse of power in imposing die sentenceof dismissal uponthe applicant. (d)themembers composing theinvestigating committeeinthecaseun- 538 3 CX.R. Theodorides v. Central Bank der review werethesamepersonswhocomposed theinvestigating committeein thepreviousproceedings which were thesubject ofRecourse277/79 and whoheard thedisciplinary offences intheir meritsand thustherulesof naturaljustice havebeen violated. 5 (e) the appointment of the persons, who composed the investigating committee,was invalid, in thatitwasmade undertheprevious Regulations, which weredeclared invalid bytheCourtas aforesaid. (0 The Regulations cannot have retrospective effect unless this ispermitted bytheenabling law. 10 (g)Therespondent Bank wrongly interdicted theapplicant,becauseaccording toRegulation 42 interdiction can only be imposed after the hearing before theGovernor and thePersonnel Committee under regulation 39

(3)and after a decision for hisdismissal has been taken by thedisciplinary organ.Such interdiction denotedbiasagainst theapplicant. 15 Held, dismissing the recourse:

(1)The regulations arc not contrary to Article 54(g)and 58of theConstitution.Neither Article54nor Article58 of theConstitution can beconstrued asrestricting thepowerof thelegislature to confer power to make subsidiary legislation toexecutive organs other than theCouncil of Ministers,asfor instance toa Minister. 20 25 Itisclear that disciplinary matters under Regulation 39aredealt within twostages:(a) thestageof theinvestigation bythe investigating commitec under Regulation 39

(2)and (b)thedisciplinary proceedings by theGovernor with thePersonnel Committee under Regulation 39

(3).The function of theCommitteeof Regulation 39

(2)istoinvestigate intotheallegeddisciplinary offence by taking statements from variouspersonsand topreparearcportand submit ittogetherwithanydocumentary evidence totheGovernor. Itsduty isloascertain whetheradisciplinary offence isdisclosed inorderto bring acharge against theperson concerned, whereupon theGovernor,together with the members of the personnel committee set up underRegulation 39

(3)proceed tohearthedisciplinarycharge. 30 This isindeed, theprocedure followed in(hiscase.

(3)Theallegation for lackof due reasoning hasnosubstance. Reasoningmay besupplemented from the material inthe file. Inany event theseverity of thesentence isnotsubject tojudicial control. 35

(4)The members of theCommittee set upunder Regulation 39

(3), who heardthecase,didnothearthemeritsofthecaseduringtheannulledproceed- 539 Theodorides v. CentralBank

(1988)ings. It followsthattherehasbeennoviolationoftheRulesofNaturalJus­ tice.

(5)Individual (ατομικές)administrativeactsbasedonregulatory ad­ ministrativeacts(γενικέςδιοικητικέςπράξεις),whichhavebeendeclared void, arcnotautomatically void, butvoidable,ifchallenged withinthepre- 5 scribed timelimit Itfollowsthatinthiscasetheappointmentsofthemem­ bersoftheinvestigatingcommitteearenotinvalid.

(6)Article 12.1oftheConstitution establishing theprinciple "Nullum delictumsinelege"isnotapplicable todisciplinary matters.The presump­ tionagainst retrospectivity isnotapplicable toproceduralmatters.Moreo- 10 ver, conductofapublic officer, if incompatible with his responsibilities, dutiesorstatusassuch,maybefound toamount toadisciplinary offence evenifthereisnoparticularlegalprovision prohibitingsuch conduct.

(7)Theinterpretationgiven toRegulation 18bycounsel forapplicant 15 renders itmeaningless. Indeed,what is theneedof interdiction,if it can onlybe imposed after dismissal?ThisCourtisinclinedtoaccepttheview ofcounselfortherespondentthatRegulation42setsuptwo prerequisites for theinterdiction, i.e. (a)the personnel committee"mustbeofthe view thatitisintheinterestofthebankthattheemployee shouldcease toexer- 20 cisethepowersandfunctionsofhisoffice instantly";and(b)"the proceed­ ingsforhisdismissalarebeingorabouttobe taken". Recoursedismissed. Noorderastocosts. Casesreferredto: Theodorides v.The CentralBankofCyprus

(1985)3C.L.R.721; 2 5 The President of the Republic v.TheHouse ofRepresentatives

(1986)3 C.L.R.1168; Police v.Hondrou, 3R.S.C.C. 82; TheRepublic v.Mozoras

(1970)3C.L.R.2Γ0; Papageorghiou v.TheRepublic

(1983)3C.L.R. 775; Solomou v.TheRepublic

(1984)3C.L.R.533; 30 Theodorides v.Ploussiou

(1976)3C.L.R.319; 540 3 C.L.R. Theodorides v.Central Bank Board ofRegistration ofArchitects and Civil Engineers v. Ky'riakides

(1966)3C.L.R.640; Georghiadesv. TheRepublic

(1969)3C.L.R.396; Enotiadesv. TheRepublic

(1971)3 C.L.R.409; 5 Georghiadesv. TheRepublic

(1970)3C.L.R. 380. Recourse. Recourse against thedecision of therespondent todismissapplicant from theserviceof theBank. A. Pa'ndelides, for the applicant. 10 L. Koursoumba (Mrs.), for the respondent. Cur. adv. vult. 15 KOURRIS J. read the following judgment. The applicant by thisrecourse,seeks adeclaration of theCourt that thedecision of the Governor of the Central Bank which was communicated to the applicant by a letter dated 6.9.1986, by means of which the applicant wasdismissed from the service of theBank, isnulland void andof noeffect whatsoever. The facts of this case go back in 1977 and "shortly are as follows:- ^ The applicant has been in the service of the Central Bank of Cyprus as from 1st February, 1969, initially as Clerk II and as from 1st May, 1976,as Assistant Cashier. 25 On the 28th July, 1977,the Governor of therespondent Bank appointed an investigating committee inaccordance with Regulation 39of theCentral Bank of Cyprus Employees (Conditions of Service) Regulations, 1964,toexaminecharges against theappli- 2 541 Kourris J. Theodorides v. Central Bank

(1988)cantfor neglect ofduty and/or non-compliance with theCurrency Regulations and also for absence from duty without leave w.e.f. 6th June, 1977. The investigating committee submitted its report to the Governor of the respondent bank of the 12th April, 1979, who,after 5 considering it, in consultation with the personnel committee, found applicant guilty of bothcharges. Regarding thecharge of absence from duty without leave,the committee advised theGovernor toimpose thepunishment ofdismissal which isprovided byRegulation 39

(3)para (f) of the Reg- 10 ulations. Regarding the charge of neglect of duty, and/or noncompliance with theCurrency Regulations,though thecommittee concluded that applicant was guiltyof serious neglect of dutyand non-compliance with rules relating totheduties ofcurrency officers, they did not recommend the imposition of any punishment 15 ontheapplicant inviewof thefact that thecommitteehad already recommended his dismissal under the charge of absence from duty without leave. Following thisrecommendaction, of the personnel committee, the respondent Bank dismissed him from the service of the bank w.e.f. 5th June, 1979. 2n The applicant, feeling aggrieved, filed a recourse No. 277/79 against thedecision of theGovernor of therespondent Bank and on 7.3.1985 the Court delivered itsjudgment annulling thedecision on the ground that the Central Bank of Cyprus Employees (Conditions of Service) Regulations, 1964, pursuant to which those disciplinary proceedings had taken place, were void because they had not been properly published. (See Theodorides v. The CentralBank of Cyprus,

(1985)3C.L.R. 721). -^ However, prior to that Judgment, the Central Bank of Cyprus Employees (Conditions of Service) Regulation,

(1983)(P.I. 189/ ~() 83) were published in the Official Gazette of the Republic, Supplement III (I) No. 1879 dated 5.9.1983 (hereinafter to be referred toas "The Regulations"). 542 3 C.L.R. 5 10 ,t- 20 2c Theodorides v.Central Bank Kourris J. Following the judgment of 7.3.1985, the Governor of the Central Bank, inconsultation with thepersonnel department, examined thecaseof theapplicant in thelightof theaforesaid decision of theSupreme Court and interdicted theapplicant from his duties as from 12.3.1985 byvirtue of Regulation 42. It was also decided toenquire into thedisciplinary offence of extensive absence from duty without leave from 6th June, 1977,and theapplicant was notified by theGovernoron the samedate. Thereafter, in compliance with the aforesaid decision, an investigating committee was setupbyvirtueof Regulation 39

(2)to enquire into theoffence committed by the applicant. In compliance with Regulation 39

(2)theinvestigating committee consisted of three members, two of which, namely Spyros Stavrou and Sofronis Sofroniou, were appointed by the Governor from among the staff of thebank,and the third, namely, YiangosIacovou, was nominated by the Branch Committee of ETYK from amongthemembers of thebank; all three holdingoffice higherin rank than the applicant. The investigating committee enquire into thematter at numerous meetings held on 18.4.1985, 25.4.1985, 22.5.1985, 12.6.1985, 3.7.1985 and 6.7.1985. On 10.7.1985 it submitted a report with itsfindings together with ailevidenceconsidered byit and minutes of all its meetings to the Governor. (See Red 31 in exhibitX). In view of the findings of the investigating committee, the Governor, inconsultation with thePersonnel Committee proceeded pursuant to Regulation 39

(3), to consider the case. On 24.9.1985, the applicant was notified accordingly and acopy of the report of the investigating committee together with all evidence submitted thereto,wasatthat stagecommunicated tohim. Thechargeof extensive absence from duty without leave from 6th June, 1977, was brought against the applicant to which he pleaded not guilty through his advocate. (See Red 33of exhibit X). At a series of meetings, theGovernor of the bank in council 543 Kourris J. Theodorides v.Central Bank

(1988)withthepersonnel committeeconsidered thedisciplinary offence; it summoned witnesses and heard evidence inthepresence ofapplicant's counsel, Mr. Antis Pantelides, heard applicant himself testifying in hiscase,and further heard theadvocatefor theapplicant and considered all legal issues raised by him. (See Red 33 - 5 38 in exhibit X). The above minutes were sent to applicant's counsel on 11.4.1986. On 28.5.1986, the personnel committee at its final meetingon the matter, considered, and decided on all legal issues raised before itbycounsel for the applicant and found theapplicant guilty |Q of the offence charged and further decided, pursuant to Regulation 39

(3)to advise theGovernor that the offence committed by theapplicantjustified theimposition of the punishment ofdismissal. (Red 40 in exhibit X). On 28.8.1986, the Governor of the respondent bank by letter totheapplicant informed himof theconclusions and advice of the Personnel Committee as aforesaid, and invited him toexpress his view on that (Red 41 of exhibit X). 15 Counsel for the applicant, Mr. Pantelides, by his letter dated 2.9.1986, informed theGovernor that hisclient stated again what 20 had been stated by him and on his behalf during the hearings before thecommittee; further, herequested that it betaken intoconsideration the fact that hisclient wasalready in Australia when the bank refused toaccept his resignation. (See red 42 in exhibit X). On 5.9.1986, theGovernor of theCentral Bank informed the ap- ~<plicant by letter that he had dulyconsidered thecontentsof counsel's letter of 2.9.1986, but he considered that the offence committed by the applicant did notjustify any other course but the imposition of thepunishment ofdismissal and, therefore, his service at the Central Bank of Cyprus was terminated as from the following day, 6.9.1985 (See Red 43 in exhibit X). Hence the 3 0 present recourse. Themaincontentions of learned counsel for theapplicant are:- 544 3 C.L.R. Theodorides v. Central Bank Kourris J. (a)thattheCentral Bankof Cyprus Employees (Conditionsof Service) Regulations 1983,arevoid because theenabling section, s.l3

(2)of the Central Bank Law, 1963,(Law 48/63 as amended byLaw 10/79)is unconstitutional. 5 (b)therespondent bank failed tocomply with Regulations 3943;and (c)there hasbeen noduereasoning and abuse of power inimposingthe sentenceofdismissal upon the applicant. 10 15 20 25 30 With regard tothefirst point above,learned counsel for theapplicant contended that the said regulations are void because the enabling section, s.l 3

(2)of the Central Bank Law, 48/63, (as amended by Law 10/79), is unconstitutional, because it is contrary toArticles 54(

1. g)and 58of theConstitution, in that it confers power to make regulations "upon the approval of the Minister", whereas, in his submission, such power can only be conferred upon the Council of Ministers. Consequently, he said, the proceedings for applicant's dismissal are invalid. Counsel for therespondent committee argued that the regulationsare notcontrary toArticles 54(
2. g)and 58of the Constitution because Article 54 of the Constitution is not of an exclusionary nature and Article 58 simply enumerates indicatively the powers of the Minister. 1 have given careful consideration to this point and I have reached theconclusion thatthesaid regulations arenotcontrary to Article 54(
3. g)and 58 of the Constitution. In my opinion, neither Article 54 nor Article 58 of the Constitution can beconstrued as restricting the power of the legislature toconfer power to make subsidiary legislation toexecutive organs other than the Council of Ministers, as for instance to a Minister. I agree with learned" counsel for the respondent that Article 54 of the Constitution is not of an exclusionary nature irrespective of the fact that paragraph (
4. g)thereof expressly makes the existence and extent of such power subject to a provision in the law to that effect, and, 545 \, I.i»urris J. Theodorides v. Central Bank

(1988)on theother hand, Article 58 simply enumerates indicatively the powers of theMinister. There is nothing toprevent the Houseof Representatives from giving legislative authorization toexercise subsidiary legislative power toa Minister. Neither Article 54 or 58of the Constitution prevent the Houseof Representatives from 5 doing so.The constitutional provisionsdo not prevent the House of R-presentatives from delegating its power to make subsidiary legisl tion toexecutive organs and neither Article 54 nor Article 58exclude thelegislative authorization toexercisesubsidiary legislative power given on each occasion by a law of the House of , Representatives toa Minister. In the Reference of The President of the Republic v. The House of Representatives,

(1986)3 C.L.R. 1168, the Supreme Court held, inter alia, at p. 1172 as follows; "1. The exercise by theCouncil of Ministers of itspower to make regulations under Article 54(g) of the Constitution, does not amount to the exercise of autonomous legislative power butitis theexerciseof subsidiary legislative power pursuant to thelegislative authorization given toiton each particular occasion by a lawof the Houseof Representatives". Also, in the case of Police v. Hondrou, 3 R.S.C.C. 82, it was held at p. 85 : "There is nothing inour Constitution toprevent the House of Representatives from delegating its power to legislate to other organs in the Republic in accordance with theaccepted ^ principles of constitutional law and the doctrine of delegated legislation." Support also is to be found in Daktoglu Genikon Dioikitikon Dikeon, 2nd edn.

(1984), pp. 56 and 69 and paras. 173 - 176 and 186, and Stassinopoullos Dikeon ton Dioikitikon Praxeon, ^

(1951)pp. 7 -

1. In conclusion, Ithink that theconstitutional provisions donot expressly or impliedly limit thepower of the Legislature,nor do 546 3 C.L.R. Theodorides v. Central Bank Kourris J. they expressly or impliedly confine it so thatsuch legislativeau­ thorization canonly be given totheCouncilof Ministers. For these reasons, this point fails. 5 10 15 20 25 30 Learnedcounsel for theapplicant submitted thatthe respondent bank failed tocomply with Regulations 39 and
2. He contended that disciplinary proceedings are held berofe the investigating committee set up under s.39

(2)and that the Governor and the personnel committeeacting underregulation 39

(3)are bound by • thefindingsof investigating committeewhich had the opportunity tohearwitnesses testifying and thatthefunction of the Governor is toimpose asentenceon theperson found guilty by the investi­ gating committeeon theadvice of the Personnel Committee. Thecontention of learned counsel for theapplicant is thatthe investigating committeeacted contrary to Regulations 39 and 43 (

1. c)and (
2. d)in that the investigating committeedid not hear wit­ nesses in thepresence of counsel for theperson charged and did notcall witnesses on behalf of theperson charged as requested by counsel for theapplicant.Heargued thatthedisciplinary proceed­ ings are held by the investigating committee and that the sole function of theGovernoris,on theadvice of thePersonnelCom­ mittee to impose sentence on the person found guilty by thein­ vestigating committee. Learned counsel for the respondent bank submitted that the function of the investigating committeeis tocarry out investigation intoanalleged disciplinary offence and tosubmit areportto theGovernorand thattheGovernor,with the PersonnelCommit­ tee is conducting the disciplinary proceedings and if the person charged is found guilty then he imposes asentenceon the advice of thepersonnel committee. Itis pertinentatthis stage toset out Regulations 39 and 43:"39.-

(1)Πειθαρχικά μέτρα δυνατόν να ληφθώσιν εναντίον υπαλλήλου δυνάμει των προνοιών των 547 Kourris J. Theodorides v. Central Bank

(1988)παραγράφων

(2),

(3)και

(4)του παρόντος Κανονισμού, εις απάσας τας περιπτώσεις καθ' ας ο υπάλληλος είναι ένοχος οιασδήποτε παραβάσεως ή αμελείας καθήκοντος δυνάμει οιουδήποτε Κανονισμού ή εις περίπτωσιν μη συμμορφώσεως προς οιονδήποτε κανονισμόν νόμιμον 5 διαταγήν ή εγκύκλιον του Διοικητού ή δι' ανάρμοστον διτ/ωγήν εν τη εκτελέσει των καθηκόντων του ή εις περίπτωσιν καταδίκης αυτού δι' αδίκημα αφορών εις ανηθικον πράξιν ή εις περίπτωσιν καθ' ην ούτος ήθελε καταδικασθήυπόΔικαστηρίου εις φυλάκισιν διάπερίοδον ,^ υπερβαίνουσαν ταςεπτάημέρας.

(2)Οσάκις εγείρεται θέμαλήψεωςπειθαρχικών μέτρων εναντίον υπαλλήλου, διεξάγεται έρευνα υπό επιτροπής αποτελούμενης εκ τριών μελών,εξ ων ταδύο διορίζονται εκτουπροσωπικού τηςΤραπέζηςυπότουΔιοικητού,το δε ,,έτερον υποδεικνύεται εκ των μελών του προσωπικού της Τραπέζης υπό της Κλαδικής Επιτροπής της ενδιαφερόμενης Συντεχνίας, νοουμένου ότι πάντα τα τοιαύτα μέλητης Επιτροπήςθακατέχωσι θέσειςανωτέρας εις βαθμόν εκείνης του υπαλλήλου καθ'ου λαμβάνονται 2® πειθαρχικά μέτρα. Η τοιαύτη επιτροπή, συνιστώμενη εν εκάστη περιπτώσει ως ανωτέρω αναφέρεται, υποβάλλει έκθεσιν των πορισμάτων αυτήςπρος τον Διοικητήν.

(3)Τηρουμένων των διατάξεων του Κανονισμού 43,η έκθεσιςτης επιτροπής ερεύνης, διοριζόμενης δυνάμει της παραγράφου

(2)του παρόντος Κανονισμού, ομού μεθ' οιασδήποτε μαρτυρίας χρησιμοποιούμενης υπέρ ή κατά του ενδιαφερομένου υπαλλήλου, εξετάζεται υπό του Διοικητού εν συμβουλίω μετάτηςΕπιτροπής Προσωπικού και ο Διοικητής, ενεργών συμφώνως προς γνωμοδότησιν 30 της Επιτροπής Προσωπικού (Προσωπικού,) δύναται να επιβάληοιανδήποτε εκτων ακολούθων ποινών: (α) Επίπληξε (β) Διακοπήνχορηγήσεως προσαυξήσεως 548 3 C.L^R. Theodorides v. Central Hank Kourris J. (γ)Αναβολήν χορηγήσεως προσαυξήσεως (δ)Υποβιβασμόν βαθμούή θέσεως (ε)Υποχρεωτικήν αφυπηρέτησιν (ζ)Απόλυσιν.

(4)Τοευεργέτημα τηςαμφιβολίας θα δίδηται εις τον κατηγορούμενον υπάλληλον. 43. Εις απάσας τας περιπτώσεις τας εξεταζομένας δυνάμει του Κανονισμού 39καιτης παραγράφου

(2)του Κανονισμού 41, δέον όπως τηρώνται οι ακόλουθοι } κανόνες: (α) Ουπάλληλος δέον όπως ειδοποιήται γραπτώς περί των λόγων δι'ους σκοπείται η επιβολήποινής,ως καιπερί τηςσκοπούμενης ποινής. (β) Ουπάλληλος δικαιούται όπως γνωρίζη πάντατα γεγονότα τηςκατ' αυτού υποθέσεως καιθαδίδηται εις αυτόν πάσα ευκαιρία υπερασπίσεως εαυτού και αποδείξεωςτηςαθωότηταςτου. (γ)Ουπάλληλος δικαιούταιόπως παρευρίσκεται κατά την διάρκειαν της εξετάσεως της υποθέσεως του και,εάν εξετάζωνται μάρτυρες,ναθέτηεις αυτούς ερωτήσεις. (δ) Έγγραφοι μαρτυρίαι δεν θα χρησιμοποιώνται εναντίον του υπαλλήλου, εκτός εάν προηγουμένως παραχωρηθή εις αυτόν αντίγραφον ή η ευκαιρία να. γνωρίση το περιεχόμενον των τοιούτων μαρτυριών." It is clear that disciplinary matters under Regulation 39 are dealtwithintwostages: (a) the stageof the investigation by the 549 Kourris J. Theodorides v. Central Bank

(1988)investigating committee underRegulation 39

(2)and (b)thedisciplinary proceedings by theGovernor with thePersonnel Committee under Regulation 39

(3). Under Regulation 39

(2)the investigation iscarried out byacommitteeconsisting of threemembers, two of which are appointed by the Governor, and the third is 5 nominated by the Branch Committee of the union concerned of the staff of the bank, all holding offices higher in rank than the employee under investigation. Ihold the view that itsfunction is toinvestigate into thealleged disciplinary offence by taking statements from various persons and to prepare a report and submit it ,« together with any documentary evidence totheGovernor. Itsduty isto ascertain whether adisciplinary offence isdisclosed in order to bring a charge against the person concerned, whereupon the Governor, together with the members of the personnel committee set up under Regulation 39

(3)proceed to hear the disciplinary ** charge. The function of the committee set up under Regulation 39

(3)is tohear witnesses, tolisten to theircross-examination by counsel representing the person charged, to hear any witnesses called bytheperson charged, andtohear theevidence oftheperson charged and if they found him guilty then theGovernor will 20 impose sentenceon theadviceofthepersonnel committee. In thepresent case the investigating committee which was set up under Regulation 39

(2)carried out an investigation into thealleged offence and having obtained statements from various persons, it submitted its report to the Governor of the respondent 25 bank and the applicant wascharged, to which hepleaded guilty, and the hearing of the case proceeded before the Governor in council with the Personnel Committee under Regulation 39

(3). Applicant's counsel was present at all meetings and he crossexamined the witnesses and he then called the applicant to give 30 evidence. He also raised a number of legal points.This committee, having evaluated the evidence before it and having heard counsel for the applicant, found theapplicant guilty of the disciplinary offence of extensive absence from duty without leave from 6th June, 1987 and then theGovernor proceeded toimpose 35 sentence on the adviceof the personnel committee in accordance with Regulation 39

(2). 550 3 C.L.R. Theodorides v. Central Bank Kourris .1. In my view, the relevant provisions of the regulations have been complied with. Applicant had acopy of thereport of the investigating committee to the Governor, and during the hearing witnesses wereexamined inthe presenceof hiscounsel and were cross-examined by him and generally all safeguards relating toa fair hearing had been complied with and there has been noviolation of the Rulesof Natural Justice. Inview of theabove, thispoint also fails. 5 10 15 20 Learned counsel for the applicant alleged that the decision of the respondent bank contained in the letter of the Governor of 5.9.1986 lacksdue reasoning in that theGovernor in the said letter simply states that theoffence of the applicant merits the punishment of dismissal. Ithink that thisground is not valid and fails because the letter of theGovernor of 5.9.1986 expressly refers to his previous'letter tothe applicant of 28.8.1986 towhich theminutes of therelevant meeting of 28.5.1986 were attached, containing a reasoned decision of the committee to advise the Governor as itdid. (See Red 40 -43). Further, itis awell-settled principleof administrative law that a decision is duly reasoned in all respects even if an administrative organ does not report in detail every aspect dealt with by it and any reasoning that may be found to be lacking may be supplemented from thefiles. In thepresent case there isamplematerial in thefiles supplementing thedecision of theGovernor." Another argument advanced by learned counsel for the applicant with regard tothe sentence is that relating to the severity of thesentence. 25 Itis well-established that an administrative court cannot interfere with the discretion of the sentencing organ in passing sentence and theseverity, as such, of adisciplinary sanction cannot betested and decided upon by means of arecourse under Article 551 Kourris J. Theodorides v. Central Hank

(1988)146. (See The Republic v. Moioras,

(1970)3 C.L.R. 210, de­ cided by the Full Bench where Triantafyllides, J. (as he then was), said at p. 221:"Lastly Ihave todeal with thecontention-again notdeci­ ded by the trial Judge, once he had annulled thedismissal of 5 the respondent -thatthedisciplinary punishment imposedon the respondentwas excessive. The short answer tothis is that failing any legislative provisions entitling this Court,in theex­ ercise of its competence under Article 146, todecide on the substance of certain aspects of disciplinary matters, (and it JQ would be in the interests ofjustice if such provisions cameto be enacted here,as in Greece), theseverity, as such of a disci­ plinary sanction cannotbe tested and decided upon by means of a recourse under Article' 146. (See Kyriakopoullos on Greek Administrative Law, 4th edn., Vol. Ill, p. 305, p. 308)." This case was followed in a number of cases such as, inter alia, Papageorghiou v. The Republic.

(1983)3 C.L.R. 775 and Solomou v. The Republic,

(1984)3 C.L.R. 533. 2 0 I now propose todeal with theother issues raised by counsel for theapplicant. One of the issues is that themembers composing the investi­ gating committeein thecase underreview were thesame persons who composed the investigating committee in the previous pro- ~ς ceedings which were the subject of Recourse 277/79 and who heard thedisciplinary offences in their merits and thustherules of naturaljustice have been violated. Whatever the position was in Case No.277/79, it is clear in the present case thatthemembers of theinvestigating committee «Λ set up under Regulation 39

(2)were not the same members who composed the committee set up under Regulation 39

(3)who heard thedisciplinary offence onits merits and it is also clearthat these persons did not hear the disciplinary offence on its merits 552 3 C.L.R. ™ Theodorides v. Central Bank Kourris J. on the previous-occasion which gave rise to Recourse No.277/ 79. Inshort, the persons who tried theapplicant on the previous occasion are notthesame persons who tried theapplicantunder Regulation 39

(3)in thepresentproceedings. Therefore, therehas been no violation of the rules of natural justice and this issue fails. Another ground for annulment advanced by learned counsel for theapplicant is that theinvestigating committeeset upunder Regulation 39

(2)was composed contrary to thesaid regulations. Learned counsel argued thatsince themembers of the investigat­ ing committeewere appointed tothepost held by thematthe ma­ terial time,under theprovisions of the 1964 Regulations, and as theregulations inquestion hadbeen held by theSupremeCourtto have been invalidly enacted, (Theodorides v. Central Bank,

(1985)3 C.L.R.721), theappointmentsof the said persons were invalid and,consequently, the investigating committee was im­ properly composed,and as aresult, thewhole procedureoughtto beannulled. *^ Ido not think that this pointcan stand as Daktoglou states in his Treatise on Administrative Law, 2nd end. 1984, at pp. 56 57, among the important differences between regulations, i.e. "kanonistikes dikitikes praxis" and "atomikes dikitikes praxis ", i.e. appointments, promotionsetc., is thattheformer is revocable for thefuture (ex nunc)whereas thelatteris revocable retrospec20 tively (ex tunc). Therefore, the "atomikes praxis", based on in­ valid "kanonistikes praxis" which have been declared void arenot automatically void but arevoidable andcan be sodeclared by the Administrative Court if challenged within the prescribed timelimit. Therefore, an administrative court when declaring legisla25 tion uncostitutional,does not do so for all purposes but only in . relation to theact which is thesubject matterof therecourse be­ fore it. (See Theodorides v. Ρlousiou,·

(1976)3 C.L.R. 319.) It follows, that though the 1964 Regulations had been held invalid for the purposes of the disciplinary proceedings in relation to 30 which they were challenged, theirinvalidity in noway affects ap­ pointments madeprior tothatpronouncement and,therefore,the 553 Kourris J. Theodorides v. Central Bank

(1988)appointments and/or promotions of members of the investigating committeearestill valid. The next point raised by learned counsel for the applicant is that the said Regulations cannot have retrospective effect unless this ispermitted bytheenabling law. 5 It is well - settled that legislation cannot be challenged on grounds of uncostitutionality or illegality unless it isrelevant to the special issue. (Theodorides v. Ploussiou,

(1976)3 C.L.R. 319; Board of Registration ofArchitects and Civil Engineers v. Kyriakides,

(1966)3 C.L.R. 640. both cases decided by the Full 10 Bench of theSupremeCourt). Ithink that the issueof theretrospectivity of Regulations 189/ 83 is not relevant to the case in hand because the proceedings challenged commenced after thepublication of therelevant Regulations.For theconduct of theapplicant tobecome punishable un- 15 der theregulations published in 1983,itisnotnecessary that such regulations should have retrospective effect sothat it would have constituted anoffence atthattime. I agree with the submission of learned counsel for the respondent bankthat theprincipleof nullumdelictum sinelege,which is 20 given effect toby the first part of paragraph 1 ofArticle 12of the Constitution, which provides that "no person shall be guilty of an offence on account of any act or omission which did not constitute an offence under the law at the time when it was committed",hasnoapplication todisciplinarymattersbecauseofthenature 25 of the statusof thepublic officers. (Georghiadesv.The Republic,

(1969)3C.L.R. 396 at pp.403-404).Thiscase was reversed on appeal butonothergrounds. Again,thepresumption againstretrospectivity isnot applicable to procedural matters. See Enotiades v. The Republic,

(1971)3 30 C.L.R. 409where at p.414 it isstated "In relation to disciplinary matterstheprincipleofnullumdelictumsinelegeisnotapplicable." 554 3 C.L.R. Theodorides v. Central Bank Kourris J. Further,even if nospecific legislation existed at thetimeof the conduct of the applicant rendering it an offence, then if thecon­ duct of a public officer is incompatible with his responsibilities, duties or status as such, may be found to amount to a discipli­ nary offence even if there is noparticular legal provision prohibit­ ing such conduct. (See Georghiades v. The Republic,

(1970)3 C.L.R. 380 atp. 399.) And it is clear thatextensive absence from duty i.e. from 6.6.1977 till 19.5.1978, without leave, is incom­ patible with theresponsibilities, duties or status of an employee. ^ Lastly, counsel for the applicant alleged that the respondent bank has wrongly interdicted theapplicant before the commence­ ment of theinquiry by theinvestigating committee.He contended that this was contrary to Regulation 42 and went on tosay thatby interdicting the applicant at that stage indicates that the respon­ dent was biased against theapplicant. Heargued thataccording to Regulation 42 interdiction can only be imposed after the hearing before theGovernorand the Personnel Committee under Regula­ tion 39

(3)andafter adecision for his dismissal has been taken by thedisciplinary organ, and hesaid that the interdiction before that stage in theproceedings denotes bias against theperson charged. Regulation 42 reads as follows:- 20 2 ^ 42.-

(1)Εάν κατόπιν εξετάσεως μιας υποθέσεως η Επιτροπή Προσωπικού κρίνη ότι υπάλληλος δέον όπως, χάριν των συμφερόντων της Τραπέζης,παύση αμέσως να ενασκή τα εκ της θέσεως του απορρέονταδικαιώματα και καθήκοντα^ ο Διοικητής ενεργών συμφώνως προς γνωμοδότησιν της Επιτροπής Προσωπικού, θέτει υπό διαθεσιμότητα τον υπαλλήλον απαγορεύωντην υπ ' αυτού ενάσκησιν των εκτης θέσεως τουαπορρεόντωνδικαιωμάτων και καθηκόντων, νοουμένου ότι λαμβάνονται ή ότι επίκεινται ναληφθώσι μέτραπερί απολύσεωςτου ήότι ούτος ευρίσκεται υπό ποινικήν δίωξιν. Κατά την διάρκεια της διαθεσιμότητος ο υπάλληλος θα λαμβάνη το ήμισυ των απολαβώντου. 30 555 Kourris J. Theodorides v. Central Bank

(2)Εάν η πειθαρχική δίωξις εναντίον υπαλλήλου δεν ήθελε καταλήξει εις την απόλυσιν ή την επιβολήν εις αυτόν άλλης ποινής ή εις την καταδίκην αυτού επί της ποινικής διώξεως, ούτος δικαιούται εις την πλήρη ανάληψιν των απολαβών του, ως εάν ούτος δεν είχε τεθή υ π ό διαθεσιμότητα. 5 Learned counsel for therespondent argued thatthe procedure followed by the respondent bank was correct and she said that Regulation 42 sets out two conditions that must be satisfied for the Governor to interdict an employee upon consideration of a | Q case against him, namely that(

1. a)the personnel committee "must be of theview thatit is in theinterest of the bank thattheemplo­ yee should cease to exercise thepowers and functions of his of­ fice instantly"; and (
2. b)"the proceedings for his dismissal are be­ ing or about tobe taken". She went on to say that "during the period of theinterdiction the employee shall receive one-half of his emoluments". She in­ vited theCourt tofind thaton the trueconstruction of Regulation 42 theGovernor,on the advice of the personnel committee when investigation is about tocommenceor is in progress, inadiscipli- JQ nary offence which is a serious one which may lead to dismissal, and it is in theinterest of the bank thattheemployee under inves­ tigation should cease to exercise his duties, may interdict him. She said that this is supported also by Regulation 42

(2)which provides thatin case theproceedings do notresult in the dismissal .or other punishment of the employee, he shall be entitled to the full amountof emoluments. I have given anxious consideration to this pointin view of the wording of Regulation 42 and Ithink,if Iwere toaccept the con­ struction given to Regulation 42 by learned counsel for theapplicant, it would lead to an absurdity because if the Governor can only interdictanemployee after the hearing before the disciplinary organ was completed under Regulation 39

(3)and after the deci­ sion to dismiss an employee is taken, then interdiction is mean­ ingless and will serve no purpose, for if the person is found 556 ™ 3 C.L.R. Theodorides v.Central Bank Kourris J. guiltyandadecision istakentodismiss him,then heisdismissed instantly.Iaminclined toaccept theintepretation given toRegulation 42 by learned counsel for therespondent bank in view of the fact that Regulation 42 provides that theGovernor may interdict anemployee ifmeasures aretaken orareabout tobetaken for his dismissal. Further, there is provision for the payment of half of theemoluments of theemployeeduring hisinterdiction and there is also provision under Regulation 42

(2)for the right of an employee tobepaid all hisemoluments during his interdiction if he is acquitted. All these provisions would not have been necessary if Iwere toaccept theargument of learned counsel for theapplicant that theGovernor can interdict an employee after adecision for hisdismissal hasbeen taken. Forthesereasons, 1 donotthink thattheinterdiction of theapplicant established any biasagaist him bytherespondent bank. In view of the above, the recourse is dismissed, but in theexerciseof my discretion, Imake noorder for costs. Before concluding, Iwould like to state that Regulations 39, 42 and 43 are not happily drafted and the sooner they are redrafted thebetter. Icannot say anything about therestof theRegulations because they were not under examination in the present case. Recourse dismissed. Noorderastocosts . 557