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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1987) 3 CLR 965
1986 September 6
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ANDROULLA MAVROUDI,
Applicant,
v.
THE CYPRUS TELECOMMUNICATIONS AUTHORITY,
Respondent.
(Case No. 160/84).
Cyprus Telecommunications Authority - The Cyprus Telecommunications Authority (Personnel) General Regulations-Reg. 15(5)- Ref using grant of annual increment to member of respondents' personnel - Performance of such member relating not only to the preceding, but, also, to past years as well, taken into consideration in determining the issue - Sub judice decision contrary to said regulation.
Administrative Law - General principles - Proper administration - Refusal to grant annual increment to employee of Public Corporation for having failed to limit her absences for ill health to occasions, where such absences were unavoidable -All of such employees past absences justified by sick-leaves backed by medical certificates - Sub judice decision annulled for offending proper administration.
By means of this recourse the applicant impugns the decision, communicated to her by letter dated 20.1.84, whereby the applicant was informed that, since from the annual service report, it appeared that her performance was not up to the required standard and as she had shown no progress and did not limit her absences from work to occasions on which such absences were unavoidable, there had not been approved the payment to her of the annual increment payable to her in January 1984.
Hence this recourse. It must be noted that in virtue of the aforesaid Reg. 15(5) the advancement in a salary scale of a member of the personnel of the respondents is determined by the General Manager of the respondent, on the basis of a satisfactory service report for the preceding year.
Held, annulling the sub judice decision: (1) As it is clear from the material before the Court, in determining the issue of increment the General Manager took into consideration, contrary to Regulation 15(5), not only the service report for 1983, but, also, applicant's performance and, in particular, her absences during past years.
(2) In any event the performance of the applicant during 1983 was rated with 8 out of 10 marks and, therefore, it could not be treated as unsatisfactory.
(3) All applicant's past leaves of absence for Ill health were backed by medical certificates. It was not permissible to penalize the applicant for such sick-leaves.
(4) It follows that the sub judice decision has to be annulled as being contrary to Reg. 15(5), contrary to proper administration and as having been reached in excess or abuse of power.
Sub judice decision annulled.
No order as to costs.
Recourse.
Recourse against the decision of the respondent to withhold the payment to applicant of the annual increment which became payable in January, 1984.
N. Panayiotou, for the applicant.
A. Hadjiloannou, for the respondent.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following judgment. By means of the present recourse the applicant challenges the decision of the respondent to withhold the payment to her of the annual increment which became payable in January 1984.
At the material time the applicant was a Telephone Operator, 1st Grade, seconded to the Telephone Directory Section.
By means of a letter dated the 20th January 1984 the Director of Personnel of the respondent Authority informed the applicant that, since from the annual progress reports about her it appeared that her performance in general was not up to the required by the Authority standard and as she had shown no progress despite warnings and recommendations to improve her performance and to limit her absences from work due to ill health to occasions on which such absences were unavoidable, there had not been approved the payment to her of the annual increment payable to her in January 1984.
On the 13th February 1984 the applicant protested in writing to the General Manager of the respondent Authority against the withholding of her increment and on the 27th February 1984 she was informed that the payment to her of her annual increment would depend on her progress and improvement of her work in general.
Under the provisions of regulation 15(5) of the Cyprus 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 scale of a member of the personnel of the Authority is determined by the General Manager of the Authority on the basis of a satisfactory progress report for the preceding year.
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 performance of the applicant, and her absences from work, during previous years.
As a matter of fact from the aforesaid letter dated the 20th January 1984, by means of which the sub judice decision was communicated to the applicant, as well as from other documents produced by the respondent Authority during the present proceedings, there emerges clearly that in deciding on the matter of the non-payment to the applicant of her annual increment in January 1984 there was taken into consideration, contrary to the provisions of regulation 15(5), not only the performance of the applicant as described in the progress report for 1983, but, also, her performance during past years and, particularly, her absences from duty, due to illness, in such years.
Counsel for the applicant has submitted further that the sub judice decision is inconsistent with the contents of the progress report about her for the year 1983.
Actually there appears from such report that the performance of the applicant in 1983 was rated by 8 marks out of 10 and, therefore, it could not be treated as unsatisfactory.
It is clear, also, that the absences of the applicant from, work due to ill health have influenced the respondent Authority in reaching the sub judice decision to withhold her annual increment, even though her leave of absence on each such occasion was backed by a medical certificate. In my opinion it was impermissible for the respondent Authority to penalize the applicant because of being absent on sick leave on any such 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 administration and as having been reached in excess and abuse of powers.
In the result the present recourse succeeds; but I shall not make any order as to its costs.
Sub judice decision annulled.
No order as to costs.