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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1983) 3 CLR 190
1982 December 11
DEMETRIADES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
LAMBROS EFSTATHICU,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
1.THE CEOINUVIANDER OF POLICE,
2.THE MINISTER OF INTERIOR,
Respondents.
(Case No. 33/80).
Natural justice—Disciplinary proceedings—Accused entitled to be afforded opportunity of being heard Disciplinary conviction. and punishment of Police sergeant whilst he was abroad—His counsel appearing at the trial but withdrawing—Accused not resummoned after such withdrawal and not given notice of new date of trial——Not afforded opportunity to be heard and defend himself—Respondents acted in contravention of the rules of natural justice Sub judice decision annulled.
Whilst the applicant, la police sergeant, was on leave without pay and was working in Saudi Arabia, the Chief of Police his refer dated 31.3.1979 informed him that a disciplinary investigation against him had commenced and asked him to return to Cyprus. Applicant replied that because of the special duties with which he was entrusted by the company employing him in Saudi Arabia, it was impossible for him to be released from his contract before its expiry and further, that in case of breach by him of the contract he would be losing financial benefits.
On September 5, 1979 the Chief of Police informed the applicant that his leave Without pay had been withdrawn and asked him to return to Cyprus; and as applicant failed to attend disciplinary measures were taken against him for absence from his duties without leave. The disciplinary trial of the applicant was fixed on the 8th October, 1979 and as a result of his non appearance it was adjourned for hearing to the 26th October, when an advocate appeared on his behalf. The hearing was then adjourned to the 19th November, 1979 when applicant's advocate was granted leave to withdraw because he had received no instructions from applicant. Four witnesses were then called and the applicant was found guilty for absence from his duties without leave and was sentenced to be dismissed from the Force and be deprived of all his rights. Though applicant's address was known to the respondents the latter had not informed him of the charge filed against him nor had they sent to him the summons; and after the withdrawal of his counsel respondents failed to re-summon him or give him due notice of the new date of trial.
Upon a recourse by the applicant:
Held, that disciplinary proceedings are of a quasi judicial nature and it has been repeatedly stated by Common Law Judges, in English and Continental legal literature, as well as Continental judicial decisions, that in proceedings of this nature the citizen is entitled to be given due notice of the decision of the Administration and be afforded the opportunity to be heard; that in view of the fact that the applicant was first informed of the withdrawal of his unpaid leave by the letter of the Chief of Police dated the 5th September, 1979; that as at the time he was abroad and that there is no evidence as to the date he received this letter, and that after his counsel withdrew from the case no notice at all was given to him to appear and defend himself, the applicant was not afforded the opportunity to be heard and defend himself and that the respondents acted in contravention of the rules of natural justice; that, therefore, the present recourse succeeds and the sub judice decision will be declared null and void and of no effect whatsoever.
Sub judice decision annulled.
Recourse.
Recourse against the decision of the respondents to dismiss applicant from the Police.
A. Eftychiou, for the applicant.
R. Gavrielides, Senior Counsel of the Republic, for therespondent.
Cur.adv. vult.
DEMETRIADES J. read the following judgment. By, his present recourse the applicant, who was serving as a Sergeant in the Police Force, prays for a declaration that the decision of the respondents to dismiss him from the, Force is null and void and of no legal effect,
The application is based on the following legal grounds, namely—
(1) The respondents had tried disciplinarily the applicant in his absence and/or they did not give him the opportunity to defend himself during the hearing of the disciplinary case against him.
(2) The respondents had acted in contravention of the rules of natural justice and/or of the principles of good administration.
(3) The respondents had acted in excess and/or abuse of power.
(4) The sub judicedecision does not have sufficient and/or lawful reasoning and/or was based on a misconception of facts.
On the 10th March, 1978, after an application in this respect, the applicant was granted leave of absence without pay for one year for the purpose of taking up employment with a company in Saudi Arabia. On the 7th December 1978, he had applied for the extension of his said leave for a further period of one year and, in the mean time, he had applied to the Chief of 'Police for the grant to him of 179 days leave of absence with pay, a period of leave to which he was credited with and entitled to. The Chief of Police approved the later application of the applicant and granted to him leave of absence with pay from the 10th March, 1979, to the 29th August, 1979.
On the 22nd March 1979, on the recommendation of the Chief of Police, the Ministry of Finance approved the application of the applicant for the extension of his above said unpaid leave for a further year. However, as on the 15th February,1979, the Council of Ministers; by their decision No. 17.728,submitted to the Chief of Police for investigation and/or trial a tile containing accusations against the applicant for committing disciplinary offences contrary to the Certain Disciplinary Offences (Conduct of Investigation and Adjudication) Law, 1977 (Law 3/77), as amended by Laws 38/77, 12/78 and 57/78,the Chief of Police, on the 31st March, 1979, sent to the applicant a registered letter by which he informed him of the decision of the Council of Ministers and asked him to make arrangements for his return to Cyprus the soonest possible in order to facilitate and- for the speeding up of the inquiry, against him.
The applicant neither replied to this letter nor in any way responded to it till- the 20th August, 1979, when he wrote to the Chief of Police a letter (which was received on the 3rd September, 1979) by which after referring to his application of the 7th December, 1978, and to the letter of the Chief of Police dated 31st. March, 1979, informed the Chief of Police that because of the special duties with which he was entrusted by the company employing him in Saudi Arabia, it was impossible for him to be released from his contract before its expiry and, further, that in case of breach by him of the contract, he would be losing financial benefits.
On the 5th September, 1979, there was sent to the applicant, on behalf of the Acting Chief of Police, a double registered letter informing him that though the appropriate Ministries had, on the recommendation of the Chief of Police, approved the extension of the leave without pay applied for by him, such leave had been withdrawn (ανεστάλη);he was called to return to Cyprus in view of the submission to the Police Force by the Council of Ministers of the File containing complaints against him with regard to the commission of disciplinary offences, as had already been referred in the letter of the 31st March, 1979; and, that as he had failed to comply with the contents of the said letter and had continued to be away from his service after the expiry of his leave with pay on the 29th August, 1979, orders were given for disciplinary measures to be taken against him for absence from his duties without leave. By this letter the applicant was further ordered to return to Cyprus immediately. There is no evidence before me if and when this letter was received by the applicant.
As it appears from the record of the disciplinary proceedings against the applicant which is Appendix 1 to the written address of counsel for the respondents-neither the summons containing the charge against the applicant nor copies of the statements of witnesses relating to the commission by him of the disciplinary offences he was charged with were ever served or brought to his knowledge.
The evidence of Chief Inspector Costas Zavros, witness No. 3 for the prosecution, in the disciplinary proceedings, is that he visited the house of the applicant, on the 7th September 1979, for the purpose of serving on him the above mentioned documents, but when the applicant's wife A informed him that applicant was abroad in Saudi Arabia, he left without effecting service.
The case against the applicant was fixed for trial before the Police Disciplinary Committee on the 8th October, 1979. In the file of this case there is a notice (exhibit 'D' attached to the application) sent by the presiding officer of the Disciplinary Committee to "Police Sergeant 4013 LambrosEfstathiou", by which he was informed that he was facing a charge of absenting himself without leave and that he 1 had to appear before the said Disciplinary Committee on the 18th October, 1979,for trial V This notice bears no address and there is no evidence before me that it ever reached the applicant.
The applicant did not appear before the Disciplinary Committee on the 8th October, 1979, and as a result of his nonappearance, the case was adjourned for hearing" to the 26th October, 1979, when an advocate appeared on his behalf and asked for the adjournment of the hearing which, despite the objections submitted by the 'prosecuting officer, was granted.
The trial was then fixed for the 1st November, 1979, and on that day applicants counsel asked again for an adjournment he had not given any instructions by his client. The was; adjourned to the 19th November, 1979, when on the applicant informed the Committee he no reply to the letter sent to his client on the 2nd November, 1979, asking for instructions, he sought leave to withdraw from the case.
The Disciplinary Committee gave the following Ruling:
"Επειδή ο κατηγορούμενος δεν παρουσιάσθη αν και ειδοποιηθή επανειλημμένως και υπό της κατηγορίας και του συνηγόρου του και του εδόθη αρκετός χρόνος ίνα προσέλθη προς υπεράσπισιν εν τούτοις δεν έπραξεν τούτο ως εκ τούτου το Δικαστήριον είναι αναγκασμένον να προχώρηση εις την δίκην ερήμην του κατηγορουμένου. Ο συνήγορος του δύναται να αποσυρθή και έπραξεν τούτο".
("As the accused had failed to appear, though he had been repeatedly notified both by the prosecution and by his counsel and though he was given sufficient time to appear for his defence, he, nevertheless, failed to do so, therefore, the Court is bound to proceed with the trial of the accused in 'his absence. Counsel for the accused can withdraw and he did so").
Four witnesses were then called and heard by the Disciplinary Committee and the case was adjourned for judgment to the 26th November, 1979, when the applicant was found guilty for absence from his duties without leave and was sentenced to be dismissed from the Force and be deprived of all his rights as from the 29th August, 1979.
In the present case there are some very striking facts that I feel should be mentioned and commented upon.
The first is that though the Chief of Police, as it appears from the letters addressed by him to the applicant, knew his address in Saudi Arabia, nobody thought it proper to send the summons or at least inform the applicant by letter of the charge filed against him and of the date on which he had to appear before the Disciplinary Committee of the Force and, further, to give him sufficient time for appearing.
The second is the short period of time given between the 20th September, 1979, "when the notification exhibit ,'D' attached to the application was written by the presiding officer of the Disciplinary Committee and the 8th October, 1979, the date on which the case was fixed for hearing, especially as it was well known that the applicant was abroad.
The third is the failure of the Disciplinary Committee to resummon the applicant and/or give him due notice of the new date of trial after they had granted leave to counsel t appearing for him to withdraw from the case.
The fourth is that p the Disciplinary Committee based their decision on the alleged withdrawal by the Chief of Police of the unpaid leave granted to the applicant, a fact which was for the first time brought to the knowledge of the applicant by the letter of the Chief of the Police, dated the 6th September,1979.
At this stage, I consider it necessary to include in my judgment the two letters, dated 31st March, 1979, and 5th September, 1979, so that a clear picture of the situation is given.
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" Αρχ. Π. Φ. Λοχ. 4013
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ΥΠΟΥΡΓΕΙΟΝ ΕΣΩΤΕΡΙΚΩΝ ΑΡΧΗΓΕΙΟΝ ΑΣΤΥΝΟΜΙΑΣ ΛΕΥΚΩΣΙΑ Τη 31η Μαρτίου, 1979.
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Registered
Mr. LambrosEfstathiou,
c/o DITCO Co Ltd.,
P.O.Box 5030,
JEDDAH, SAUDI ARABIA.
Παρακαλώ σημειώσατε ότι το Υπουργικόν Συμβούλιον δι' αποφάσεως του υπ' αρ. 17.728 της 15ης Φεβρουαρίου, 1979, παρέπεμψε δια περαιτέρω έρευναn ή/και εκδίκασιν φάκελλον περιέχοντα καταγγελίας εναντίον σας, αναφορικώς προς την διάπραξιν αδικημάτων δυνάμει του περί Ωρισμένων Πειθαρχικών Παραπτωμάτων Νόμου 3/77, ως ούτος εχει τροποποιηθη υπό τών Νόμων 38/77, 12/78 καί 57/78.
2. Προς διευκόλυνσιν και επίσπευσιν της ανακριτικής διαδικασίας, καλείσθε όπως διευθετήσετε τα της επιστροφής σας εις Κύπρον το συντομώτερον δυνατόν.
δι' Αρχηγόν Αστυνομίας"
("P.F.Sgt.4013
MINSTRY OF INTERIOR
POLICE HEADQUARTERS
NICOSIA
31st March,1979
Registered
Mr. LambrosEfstathiou,
c/o DITCO Co Ltd.,
P.O.Box 5030,
JEDDAH, SAUDI ARABIA.
Please note that the Council of Ministers by its decision No. 17.72/8 of their 15th February, 1979, has forwarded for further investigation and/or trial a file containing accusations against you regarding the commission of offences contrary to the Certain Disciplinary Offences (Conduct of Investigation and Adjudication) Law 3/77 as amended by Laws 38/77, 12/78 and 57/78.
2.For facilitating and hastening the investigating procedure you are requested to arrange for your return to Cyprus the soonest possible.
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" Αρχ. Π.Φ. Λοχ. 4013 |
for Chief of Police").
"ΥΠΟΥΡΓΕΙΟΝ ΕΣΩΤΕΡΙΚΩΝ ΑΡΧΗΓΈΙΟΝ ΑΣΤΥΝΟΜΙΑΣ ΛΕΥΚΩΣΙΑ
5η Σεπτεμβρίου, 1979.
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DOUBLE REGISTERED
Mr. LambrosEfstathiou,
c/o DITCO Co. Ltd.,
P.O.Box.5030,
JEDDAH, SAUDI ARABIA.
Αναφέρομαι εις την επιστολήν σας ημερομηνίας 20.8.1979 και επιθυμώ να σας πληροφορήσω ότι παρά το γεγονός ότι τα αρμόδεια Υπουργεία είχον, τη ημετέρα συστάσει, εγκρίνει παράτασιν της αδείας σας δι' εν εισέτι έτος, εν τούτοις, αυτή ανεστάλη υφ' ημών και εκλήθητε όπως επιστρέψητε εις Κύπρον, εν όψει της παραπομπής προς ημάς, υπό του Υπουργικού Συμβουλίου, φακέλλου περιέχοντος καταγγελίας εναντίον σας αναφορικούς προς την διάπραξιν αδικημάτων κατά παράβασιν του Νόμου περί Καθάρσεως (Ημετέρα επιστολή ήμερ. 31.3.1979).
2. Επειδή όμως δεν συνεμορφώθητε προς την ανωτέρω επιστολήν μας και εξακολουθείτε να ευρίσκεσθε μακράν της υπηρεσίας και μετά την εκπνοήν της μετ' απολαβών αδείας σας την 29.8.1979, έχουν δοθή οδηγίαι διά την πειθαρχικήν υμών δίωξιν δι' απουσίαν εκ του καθήκοντος άνευ αδείας δι' ο και εντέλλεσθε όπως επιστρέψητε πάραυτα εις Κύπρον.
δι' Αναπλ. Αρχηγόν Αστυνομίας"..
("P.F.Sgt.4013
MINISTRY OF INTERIOR
POLICE HEADQUARTERS
NICOSIA
5th September, 1979.
DOUBLE REGESTERED.
Mr. LambrosEfstathiou,
c/o DITCO co. Ltd.,
P.O.Box 5030,
JEDDAH, SAUDI ARABIA.
I refer to your letter dated 20.8.1979 and I with to inform you that in spite of the fact that the appropriate Ministries had, on my recommendation approved extension of your leave for one more year, still, it had been withdrawn by me and you: were asked to return to Cyprus, in view of the submission to me by the Council of Ministers, a file containing accusations regarding the commission of offences contrary to the law for purgation (My letter dated 31.3.1979).
2. But because you did not comply with my above letter and you continue to be away from, your duty after the expiration of your leave without pay on 29.8.1979, instructions have been given for disciplinary proceedings against you for absence from duty without leave and you are therefore ordered to return immediately to Cyprus.
For Dep. Chief of Police")
Disciplinary proceedings are of a quasi judicial nature and it has been repeatedly stated by Common Law judges, in English and Continental legal literature, as well as Continental judicial decisions, that in proceedings of nature the citizen is entitled to be given due notice of the decision of the Administration and be afforded the opportunity to be heard.
In view of the fact that the applicant was first informed of the withdrawal of his unpaid, leave by the letter of the Chief of Police dated the 5th September, 1979; that at the time he was abroad and that In do not, have before me evidence as to the date. He received this letter and that after his counsel withdrew from the case no notice at all given to him to appear and defend himself, I find that the applicant was not afforded the opportunity to be heard and defend himself' and that the respondents acted in contravention of the rules of natural justice.
In the light of the above, Lind that the present recourse succeeds a result of my findings, the sub, judice decision is null and void and of no effect whatsoever;
The respondents pay the costs of the applicant.
Sub-judice decision annulled.