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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1972) 3 CLR 206
1972 April 4
[HADJIANASTASSIOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ANTONIOS MICHAEL,
Applicant,
and
THE REPUBLIC OF CYPRUS, THROUGH
THE COUNCIL OF MINISTERS,
Respondent.
(Case No. 215/70).
Policeman-Termination of service in the public interest-Sections 6(f) and 7 of the Pensions Law, Cap.311 (as amended)_Applicable only in cases of redundancy and on medical grounds-And not as in the present case, on grounds of alleged misconduct-Wrong exercise of discretion-That is to say discretion exercised not for the purpose for which it was given-Natural justice-Right of being heard-In the light of the material on record the sub judice decision was intended to be a disciplinary punishment-Therefore, the applicant should have been afforded the reasonable opportunity of being heard.
Collective organs-Necessity of keeping written records of the proceedings before them.
Administrative acts or decisions-Reasoning-Due reasoning required-Misconception of fact-Sub-judice termination of service annulled on those two grounds also viz for lack of due reasoning and because it was effected under a material misconception of fact.
Reasoning of administrative decisions-See supra.
Misconception of fact-Vitiates the administrative decision concerned.
Discretionary powers-Abuse of-Exercise of discretion for a purpose other than the one for which it was given-See further supra.
Records-Proper records of proceedings before collective organs should be kept.
Disciplinary punishment as distinct from a mere administrative measure in the public interest-Sections 6(f) and 7 of the Pensions Law Cap 311 (as amended)-See further supra.
Natural justice-Rules of-Disciplinary proceedings and punishments-The officer concerned should be afforded reasonable opportunity of being heard-See further supra.
This case is almost identical with the case HadjiSavva. v. The Republic reported in this Part at p. 174, ante. The facts appear in the judgment of the Court annulling the sub judice termination of applicant's service by the Council of Ministers purporting to act under the provisions of sections 6(f) and 7 of the Pensions Law, Cap.311 (as amended).
Cases referred to:
HadjiSavva v. The Republic, reported in this Part at p. 174, ante;
Medcon Construction and Others v. The Republic (1968) 3 C.L.R. 535, at p. 543;
Leontios Papaleontiou v. The Republic (1967) 3 C.L.R. 624;
Mehmet Mi Rouhi and The Republic (1961) 2 R.S.C.C 84;
Kanda v. Government of the Federation of Malaya [1962] A.C. 322, at p. 334;
McClelland v. N. Ireland Health Board [1957] 2 All E.R. 129, at p. 134 (H.L.);
Haros and The Republic 4 R.S.C.C. 39 at p. 43;
Morsis v. The Republic (1965) 3 C.L.R. 1, at p. 8.
Recourse.
Recourse against the decision of the Respondent dated 14th May, 1971, terminating applicant's employment in the Police Force in the public interest, under the provisions of ss. 6 and 7 of the Pensions Law Cap. 311.
L. Papaphilippou for the applicant.
L. Loucaides Senior Counsel of the Republic, for the respondent.
The following judgment was delivered by:-
HADJIANASTASSIOU, 3: In these proceedings under Article 146 of the Constitution the applicant seeks to challenge the decision of the Council of Ministers dated May 14, 1971, terminating his employment in the public interest as from November 20, 1970, under the provisions of ss. 6 and 7 of the Pensions Law, Cap.311 (as amended) as being contrary to the Constitution, unlawful, null and void and of no effect whatsoever.
The facts are these:-The applicant joined the police force of Cyprus on February 2, 1964, and after attending a training course at the police, school of Strovolos, on May 14 1966 he was posted to the police headquarters of Nicosia. On July 15 1966, he was transferred to the information service of the Ministry of Interior, but on November 29, 1969, was posted again to the police headquarters and was carrying out normal police duties.
On March 9, 1970 the police, acting on information that the applicant was suspected of having taken part in the attempt on the life of the President of the Republic, Archbishop Makarios, interrogated the applicant, but did not arrest him. On March 29 however the applicant was arrested regarding the same incident, but after remaining in custody he was released on April 13, because of lack of material and evidence justifying a criminal charge against him. In the meantime, the applicant was, in the course of the investigations, interdicted from duty, apparently under Reg. 23 of the Police (Discipline) Regulations, 1958, pending an enquiry into an offence under these regulations; and although as a result of the investigation there was no case against him nevertheless the interdiction did not come to an end (for reasons unknown to me) and continued until the termination of this employment.
On May 12, 1970, the Ministry of Interior prepared a Submission to the Council of Ministers acting inter alia, on the contents of a report prepared by the Senior Divisional Commander of Nicosia, Mr. Mezos, inviting the said Council to terminate the services of four police officers (including the applicant) in the public interest. Paragraph 1 of the said Submission reads as follows
"The Ministry considers it expedient to terminate the services of the following police officers in the public interest, since their usefulness in the force has ceased to exist because of their behavior and activities which are not compatible with their office."
See the Submission (blue 9) attached to the opposition.
On May 14, 1970, the Council of Ministers under its Decision No. 9685, decided after taking into consideration the requirements of the public service, as well as the usefulness of the four members of the police force, in the circumstances appearing in the Submission No. 350170, to approve in accordance with the provisions of sections 6(f) and 7 of the Pensions Law, Cap. 311 (as amended by Laws 17 of 1960, 9 and 18 of 1967 and 51 and 119 of 1968) the termination of their services (including the applicant) in the public interest. Vide an extract of the Minutes (blue 36) in Schedule B.
It would be observed that the decision of the Council regarding the applicant, was based on the report of Mr. Mezos which was prepared in accordance with the instructions of the Chief of Police and it refers both to the search of the Club THOI in Omorphita the finding of the explosives therein, the arrest of the five members of the committee, (including the applicant) as well as to an extract from the legal opinion of the Attorney-General to the effect "that there was no evidence which completely connects the accused with the placing and possession of the found explosive substances."
Be that as it may I think I ought to read an extract from this report because it becomes evident from the very beginning that there was neither material nor any facts connecting the applicant with the charge of an attempt on the life of the President of the Republic, Archbishop Makarios. Paragraph 10 is in these terms:-
"During the period of the enquiries regarding the case of an attempt against the life of the President of the Republic it came to the knowledge of the investigating officers that P.C. 2260, A. Michael (the applicant) was involved in that case. He was interrogated on the 9th March 1970, but he was not arrested. It was observed that when the accused persons were brought before the Court for the purpose of renewing their order of arrest, the applicant, who was on sick leave during that period, was not losing a chance to visit the Court and was trying to come in touch with them. In view of his behavior and in the light of other positive information, he was arrested on the 29th March 1970, regarding a charge of attempt on the life of Archbishop Makarios." (See blue 29 in schedule B).
Pausing here for a moment, I cannot but express my surprise, because although in this report there is a reference that the police had positive information in their hands, yet no facts at all were placed before the Council of Ministers. Of course, in the absence of any minutes kept at the meeting of the Council of Ministers, I cannot speculate as to what other material was before them when they took their decision to terminate the employment of the applicant. It is essential, for the propriety of proceedings of public collective organs, that they should keep written records of such proceedings, compatible not only with good administration, but with the necessity of enabling such actions to be submitted to proper judicial review See Medcon Construction & Others v. The Republic (1968) 3 C.L.R. 535 at p. 543.
I think I ought to reiterate that, because no evidence was found, the applicant was released, but on May 26 1970, the Chief of Police wrote to him informing him that his services were terminated in the public interest. The applicant, feeling aggrieved, filed the present recourse, and the grounds of law of substance raised in this application are more or less identical with these in case No. 2 12/70 with the exception of this ground :-that the Council of Ministers have acted contrary to the provisions of the Police Law, Cap. 285 and the Regulations made under that law
The opposition on behalf of the respondent was filed on September 8, 1970, and it is based on the same legal points referred to in Case No. 212/70, viz., that the decision of the Council of Ministers was not a disciplinary punishment, but an administrative measure which was taken lawfully in the public interest.
In this case the question which falls to be determined by this Court is whether the Council of Ministers, as counsel for the respondent claimed, and to which counsel on behalf of the applicant took exception had exclusive competence to retire the applicant in the public interest. Counsel relies on Papaleontiou v. The Republic (1967) 3 C.L.R. 624. Now, I do not propose reading from the decision in this case, because I have already dealt with it in my judgment delivered earlier this morning in the case of Hadjisavva v. The Republic (Case No. 2 12/70), and again I take the view, just as I did in the Hadjisavva case, that the Papaleontiou case can be distinguished from the case in hand and does not in any way support counsel's argument that the Council of Ministers had exclusive competence to retire the applicant in the public interest.
I think that the view taken by counsel on behalf of the Republic, finds no support in the authorities I have given in my recent judgment, but on the contrary, the case of Mehmet Au Rouhi and The Republic (1961) 2 R.S.C.C. 84, goes a long way to lend support to the view that the proper organ is the Public Service Commission. Moreover, in Kanda v. Government of the Federation of Malaya [1962] A.C. 322 (H.L. Lord Denning had this to say at p. 334 in support of the said proposition:
"It appears to their Lordships that there cannot at one and the same time, be two authorities, each of whom has a concurrent power to appoint members of the police service. One or other must be entrusted with the power to appoint. In a conflict of this kind between the existing law and the Constitution the Constitution must prevail."
This judgment was quoted in case No. 212/70 (supra).
The legislative provisions regarding the retirement of public officers are to be found in the law Cap 311 (as amended), which lays down a comprehensive pension scheme for the public service. Regarding the circumstances in which pension may be granted, s. 6 (as amended) provides that "no pension, gratuity. shall be granted under this law to any officer except on his retirement from the public service in one of the following cases." Then the cases are enumerated in paragraphs (a), (b), (c), (d), (e), (f), (g), and paragraph (f) is as follows:-
"(f) in the case of termination of employment in the public interest as provided in this Law."
I now turn to s. 7 which provides for the termination of employment in the public interest, and is, so far as relevant, in these terms :-
"Where an officer's service is terminated on the ground that having regard to the conditions of the public service, the usefulness of the officer thereto and all other circumstances of the case, such termination is desirable in the public interest, and a pension cannot otherwise be granted to him under the provisions of that law, the Governor-in-Council may, if he thinks fit, grant such pension as he thinks just and proper."
Since Independence Day those provisions have to be read subject to the provisions of paragraph 3(b) of Article 188 of the Constitution which provides that unless the context of a pre-constitutional law otherwise requires, any reference to the Governor or the Governor-in-Council in such law shall be construed as a reference to the Council of Ministers in matters relating to exercise of executive power.
I think that, regarding the combined effect of ss. 6 and 7 of the Pensions Law, I ought to reiterate what I have said in my judgment in Hadjisavvas case at p. 198 and which I adopt and follow in this case:
"Reverting now to ss. 6 and 7 of the Pensions Law, Cap. 311 (as amended) I am inclined to take the view that the combined effect of both sections may give competence to the Council of Ministers to terminate an officer's service only in the cases of redundancy and on medical grounds. I am supported in this view, because of the wording of section 7; having regard..., the usefulness of the officer thereto and all the other circumstances of the case, such termination is desirable in the public interest. Needless to say, a public officer is an officer who discharges his duties, in the discharge of which the public are interested, and it is fallacious to say that in the circumstances of the case in hand, it was in the public interest to retire the applicant, who until recently, was discharging his duties effectively and efficiently."
That an officer who discharges his duties effectively is secure till he reaches his retiring age, appears also to have been the clear position even during the colonial days.
"Although a civil servant, as is well known, is employed at the pleasure of the Crown and can be dismissed at any moment, in fact once he has qualified by examination or probation and is taken on the establishment he is secure in his employment till he reaches the retiring age, apart of course from misconduct or complete inefficiency."
(Per Lord Goddard in McClelland v. N. Ireland Health Board [19571 2 All E.R. 129, at p. 134,(H.L.).
I have no doubt that these words can be applied to the present case with even greater force, not only because the right to work is guaranteed under our Constitution, but also because the rule of law is deeply rooted in our country. I must, however, add that the position would have been different if there was evidence or indeed material before the Council of Ministers to show that the applicant was guilty of misconduct or complete inefficiency in the performance of his duties of course, if that was the position, I would have been prepared to agree that misconduct of a police officer, even in his private life which tends to destroy his authority and influence in his relations with the public, amounts to misconduct against the discipline of the police force because a police officer must be above suspicion if the public are to accept his authority. Unfortunately, however, after the applicant was interdicted from duty (and I take it that there was some foundation for such decision) the police authorities have not proceeded to enquire further into the alleged misconduct in order to decide whether he ought to have been charged with an offence against discipline but instead the Council of Ministers decided to terminate the employment of the applicant in the public interest under the Pensions Law Cap.311 (as amended). Be that as it may, in this case. I am concerned with the power of the competent authority to take a decision to retire a policeman in the public interest, and I think it is proper to examine what was the position under the Police Law Cap.285 (as amended). Section 13(1) as amended by Law 2 1/64, reads as follows:-
"Gazetted officers shall be appointed, promoted and discharged by the Minister."
I then turn to subsection 2 (as amended by Law 29/66) which deals with the appointments, etc. of non Gazetted ranks and is in these terms:-
"The Chief of Police shall, with the approval of the Minister, appoint, enlist, promote and discharge all members of the force, up to and including the rank of Chief Inspector."
And subsection 3 (as amended by Law 29/66) reads as follows:-
"The conditions of appointment, enlistment, promotion, service and discharge of members of the force shall be provided by regulations made by the Council of Ministers under this section and published in the official Gazette of the Republic provided that until the regulations provided in this subsection are made, the regulations and general orders in force on the date of the coming of this law into operation shall continue to apply."
Regarding the disciplinary control over the members of the police force (who are not members of the public service of the Republic) it is regulated primarily by the provisions of the Police (Discipline) Regulations, 1958-1960, which regulations should now be construed and applied in accordance with the principles of natural justice which are made applicable to offences in general by virtue of Article 12 of the Constitution.
In Haros and The Republic, 4 R.S.C.C. 39 at p. 43, the Court had this to say:-
"The Court is also of the opinion that the definitions of public officer and public service as set, out in Article 122 are very clear in this respect and that as the security forces of the Republic are not included therein, policemen are not subject to disciplinary control by the Public Service Commission, under Article 125, and they continue to he subject to the discipline of the Police."
Taking into consideration all the circumstances of this case, particularly the submission prepared by the Ministry of Interior, and as I have not heard argument (counsel having adopted their previous contentions in the Hadjisavvas case) concerning the point as to which is the competent authority to terminate the employment of the applicant, and as it appears that there may be a conflict between the two laws, I have decided to follow my previous stand and keep open the question as to which organ is the competent authority, in a proper case, to terminate, the employment of a policeman m the public interest.
Regarding the complaint of the applicant that the decision of the Council of Ministers was in the form of a punishment, and was made for disciplinary reasons, counsel on behalf of the respondent quite fairly put forward the proposition that if the Court in the light of the material before it reached the conclusion that the said decision was not of an administrative nature but a disciplinary punishment, the Court was entitled to declare null and void the said decision since the discretionary powers of the Council were exercised in a defective manner.
Having kept open the question of competence, I shall now proceed to answer the questions raised by counsel, and in doing so, I assume that the Council of Ministers had competence to decide the question of the termination of the employment of the applicant. It has been judicially said in a number of cases that where the Supreme Court finds excess or abuse of power on the part of the administration, this is done over, in addition to, or as consequence of finding also that there has been disregard or violation of other principles accepted by the administrative law. Violation or disregard, therefore, of the principles such as disregard of the rules of natural justice, misconception of law, of facts, invalid or defective exercise of discretion, lack of due reasoning etc., are implied into our Article 146, as grounds of annulment by virtue of the principle in Morsis v. The Republic (1965) 3 C.L.R. 1 at p. 8. The power, of course, may be discretionary, but once it is exercised, such exercise must be for the purpose for which it was given. As long as a discretion is exercised in a valid manner, the Supreme Court will not interfere. But the question here is: Has the Council exercised its discretion in a valid manner? I think the answer must be in the negative, because the Council of Ministers wrongly exercised their discretionary powers under the Pensions Law, Cap. 311 (as amended) since such exercise was not made for the purpose for which it was given, i.e. for reasons of redundancy and on medical grounds. On the contrary, in the light of the material before me, (except the reference in the report of Mr. Mezos regarding the health of the applicant) I am bound to come to the conclusion that the termination of the employment of the applicant was intended to be a disciplinary punishment. I find further support that this is so in the concluding words of the submission before the Council of Ministers which reads as follows: "... since their usefulness in the force has ceased to exist because of their behaviour and activities which are not compatible with their office." Thus, it is clear that the applicant was punished for his alleged misconduct and what is really disturbing is that the decision was reached on the strength of non-existing facts, and without affording the applicant his inalienable rights, under the Rule of Natural Justice, to have a reasonable opportunity of being heard.
For the reasons I have advanced, and in view of the fact that the predominant purpose behind the decision of the Council of Ministers was, I repeat, to punish the applicant for misconduct, I have no alternative but to annul the said decision, as being contrary to the Constitution, the law, and null and void and of no effect whatsoever.
Finally, regarding the other grounds of law, i.e. misconception of facts and due reasoning, I feel that in view of my judgment in Hadjisavvas case which I have delivered earlier today, and as I have answered all these points, I need not deal with them here, except to say that I adopt the same reasoning for the purpose of this case
Having heard both counsel and following the very same authoritative pronouncements, I am of the opinion that the decision of the Council of Ministers was based both on non-existing facts and without due reasoning, and it was, therefore, made in excess or abuse of powers vested in such organ. I would, therefore, annul the said decision with costs in favour of the applicant.
Sub judice decision annulled;
order for costs as above.