ANILIADES ν. CYTA (1981) 3 CLR 21

Cyprus Telecommunications Authority-Officers of-Absence abroad on approved leave-Sick leave in the course of such absence-Procedure-Article 15 of the General Personnel Regulations of the Authority-Absence of officer abroad without leave-Termination of services-Article 33 of the said Regulations-Compensation for "meritorious services"-Procedure for payment of-Article 9 of the said Regulations.

Legitimate interest-Article 146.2 of the Constitution-Unreserved acceptance of administrative act-Deprives the acceptor of legiti10 mate interest to file a recourse.

The applicant, who was holding the post of Inspector in the respondent Authority, was granted leave of absence to be spent abroad which expired on the 14th August, 1978; and though he applied several times for extension of such leave, giving as grounds for the extension applied for personal reasons, such applications were refused and his attention was repeatedly drawn to the fact that if he failed to attend his work his services would be terminated. After the expiration of his leave of absence and after he was informed that the Authority was considering the termination of his services, the applicant on the 7th September, 1978, that is 24 days after his failure to attend his work, by a letter sent through his advocate, advanced for the first time reasons of health in support of his application for extension of his leave of absence, enclosing two medical:, certificates One of these certificates referred to the condition of his health in 1971 and not to any sickness from which he suffered at the material time when he made his application. The other certificate was a certificate: from a doctor in. Athens which referred to complaints about chronic spondyloarthritis which required long-term treatment and it concluded that due to his health condition and his family circumstances he suffered nervous shock and was unable to work for the time being. The respondent Authority by letter dated 12th September again rejected the application for extension of leave and, also, informed the applicant that any "allegation advanced after the events as justification 'for reasons of health' cannot be accepted and restore and cure the effect of his conduct towards his employer because in case of illness of the personnel there are respective provisions in the: Regulations which should have been followed".

The applicant never returned to Cyprus to resume his duties and the respondent Authority by letter dated 22nd September, 1978 terminated his employment as from the 20th September, 1978 in accordance with the Personnel Regulations of the Authority informing him, at the same time, that arrangements could be made for payment to him of all the benefits to which he was entitled. In reply counsel for applicant informed the respondent Authority that applicant accepted such termination with the only reservation to claim compensation in respect of "meritorious services". The respondent Authority refused to pay him any compensation for "meritorious services" and hence this recourse which was directed against the decision of the respondent to terminate applicant's services and against the refusal to pay him any compensation for "meritorious services".

Under Article 33(4)(b) of the General Personnel Regulations of the respondent Authority, any unjustified absence from. work or the failure of the employee to keep the time table in accordance with the Regulations applicable, are considered to be disciplinary offences which may lead: to the dismissal of such employee; and under Article 15 of the same Regulations, sick leave can only be granted to employees, who are abroad on approved leave of absence, if the employee reports to the Diplomatic Services of the Republic on whose request he has to be examined by a doctor recommended by them and who has to prepare a medical report which has to be submitted though them to the Authority.

Compensation for meritorious services is granted in accordance with the provisions of Article 9 of the above Regulations by Authority is embowered to prepare lists of employees who have ended their career satisfactorily and who are entitled to meritorious services benefit. This article, also, provides that the provisions for meritorious retirement in respect of all ranks of the provisional are applicable only in cases of mutual consent (Authority and employees)" and that, further, those employees who have been considered as having completed their career meritoriously are retired compulsorily in accordance with Article 20.

Held, (1) with regard to the termination of (applicant's services:

That as the applicant in applying forsick leave has not complied with the procedure provided by the General Personnel Regulations because he has never reported the matter to the Diplomatic Authorities of the Republic and he has never supplied the respondent Authority with a medical certificate of a doctor to whom he had to be referred by the Diplomatic Services of the Republic, his services have been rightly terminated, in accordance with the said Regulations., due to his failure to resume his duties.

Held, further that the applicant by his letter through his advocate accepted the termination of his employment reserving only his right to claim compensation in respect of "meritorious services and that therefore, by accepting such termination of employment without any reservation as to any other claim he is estopped from alleging that the act of the Authority by terminating his employment is null and void.

(2) With regard to the claim for compensation for "meritorious service".

That it is clear from the relevant Regulations that for a person to be placed on the list of employees who have meritoriously completed their career There must be a mutual agreement of the employee and the Authority in view of the defect that such emplacement will have on the continuation of employment if the employee as the result of such placement is the compulsory retirement the that in this case it is clear that applicant never applied to the Authority 'for his emplacementon such list in view of his retirement or that there ever was any mutual agreement to that end between the Authority and the applicant; that the services of the applicant were terminated as a result of his failure to resume his duties which were considered by the Authority as essential and had to be continued; that, therefore, the respondent Authority in refusing to pay the applicant any compensation for meritorious services did not act either arbitrarily or in breach of the Regulations, as the name of the applicant did not appear on the list of persons entitled to such benefit in accordance with the procedure contemplated by the Regulations but his services had been terminated due to his failure to resume his duties; accordingly his recourse must fail.

Application dismissed.

Recourse.

Recourse against the decision of the respondent whereby the services of the applicant were terminated.

L.N. Clerides, for the applicant.

A. Hadjioannou, for the respondent.

Cur.adv. vult.

SAVVIDES J. read the following judgment. Applicant by the present recourse claims-

(a) a declaration that the act or decision of the respondents. communicated to the attorney of the applicant on the 23rd September, 1978 whereby the services of the applicant were terminated on the 20th September, 1978 is null and void and of no legal effect.

(b) A declaration of the Court that the omission of the respondents to pay the applicant all the benefits and compensation for meritorious services to which applicant was entitled under the law and the Regulations, should not have been made.

The facts of the case are briefly as follows:

The applicant originally took employment with the Cable and Wireless on the 9th September, 1947 as wireless operator. On the 1st April, 1961 he was transferred to and became an employee of the respondent Authority and on the 1st July,1962 he was promoted to the post of Inspector. He continued working in such post at the automatic telephone centre of Nicosia till the 15th August 1976 when on his application, he was granted one year's leave of absence abroad without pay which expired on the 14th August, 1978. Such leave of absence was extended by the Authority, at the request of the applicant, for a further period of one year expiring on 14.8.1978, by letter dated 10th June, 1977. Under para. 2 of the said letter which is part of a bundle of documents produced as exhibit 3, the applicant was informed that in case he did not return to resume his duties after the expiration of such leave of absence, his services would be terminated. The material part of this letter reads as follows:

"Έστω εις γνώσιν υμών ότι εις περίπτωσιν καθ' ην δεν θα αναλάβητε τα καθήκοντα σας μετά το πέρας της παραχωρηθείσης αδείας απουσίας άνευ απολαβών αι υπηρεσίαι σας θα τερματισθούν".

The English translation of which is as follows:

("You should bear in mind that in case you will not resume your duties after the expiration of the leave of absence without pay granted to you, your services will be terminated").

On the 27th June, 1978 the applicant submitted a new request for further extension of his leave without pay which was refused by the respondent Authority by its letter dated 10th July, 1978 which reads as follows:

"Αναφέρομαι εις την επιστολήν σας ημερομηνίας 27ης Ιουνίου 1978 διά το ως άνω θέμα και πληροφορώ υμάς ότι η αίτησις σας διά παράτασιν της παραχωρηθείσης εις υμάς αδείας άνευ απολαβών δεν δύναται να εγκριθή καθ' ότι το ανώτατον όριον της παραχωρουμένης απουσίας άνευ απολαβών βάσει της υπ' αρ. αν. ΓΔ.5/2/75 εγκυκλίου ημερομηνίας 15ης/4/75 δεν δύναται να υπερβή τα δύο έτη.

Ούτω βάσει των όρων της παραχωρηθείσης εις υμάς αδείας θα πρέπει να αναλάβητε τα καθήκοντα σας την 15ην Αυγούστου, 1978, καθ' ότι εις περίπτωσιν καθ' ην δεν θα αναλάβητε τα καθήκοντα σας μετά το πέρας, της παραχωρηθείσης αδείας, αι υπηρεσίαι σας θα τερματισθούν".

The English translation of which is:

("I refer to your letter dated 27th June, 1978 in connection with the above subject, and I wish to inform you that :your application .for extension of the Leave granted to you without p cannot be approved, in view of the fact that the maximum leave which can be ;granted Without pay in accordance Circular No. CD.5/2/75 dated 5/4.75, cannot exceed a period of two years.

Therefore, in accordance with the terms of the leave granted to you, you must resume your duties on the 15th August, 1958, 0therwise, in case you fail to resume your duties after the expiration of your leave, our services will be terminated").

The applicant on the 30th July, 1978 addressed to the respondent Authority the following letter:

''I refer to Cyta 's letter LP/A6/4 of 10th instant in reply to mine of 27th June, 1978, in which I applied for a further six month extension tow my years leave without pay which ends on the 15^th August, 1978 and request your urgent reconsideration to your negative decision bearing in mind that such extensions have been granted to the best of my knowledge , to Messrs; A.Embedoklis, PhivosLoizou, G Georghides for reasons which could not be more valid and serious than my family's

The particular reason of my original application case on the very serious compassionate grounds which effectuated family for the killing o elder son the events of 15th July, 1974, five days before he was due terminal his two years service with the National Guard.

Without elaborating at present, I cannot imagine what more serious reasons made possible further extensions over and above the two years or if They were me valid faithfully may I say, along with Those who were present at the airport during the Turkish invasion, of our duty towards our Authority and Country.

I applied for a further six months extension to enable me if possible to finalise my family's circumstances andapply to be considered for pension on the terms of satisfactory service 'EvdokimosIpiresia' at the appropriate time if finally I find myself unable to return to Cyprus.

I fully realise that it is the prerogative of CYTA to acceptor turn down any such requests for extensions or consideration. for Pension on the grounds of 'EvdokimosIpiresia', but I also believe that such decisions should be based on the merits and reasons involved and with this in mind, I request your reconsideration for an extension and the possibility of being pensioned on the grounds mentioned above.

Sincerely looking forward to your reply at your earliest convenience to make it possible for me to make the necessary appropriate arrangements".

In reply to such letter, the respondent Authority informed the applicant by letter dated 9th August, 1978 that his application could not be reconsidered in view of the fact that the Authority could not grant leave of absence abroad for a period extending two years, drawing his attention, once more, to the fact that in case of his failure to resume his duties on the 15th August,. 1978, his services would be terminated.

On the 14th August, 1978 the applicant sent the following telegram to the respondent:

"Chairman Board,

CYTA Nicosia.

Reference your letter LP/AX/4 9/8/1978.

Not extending my unpaid leave as granted others regret last minute difficulties beyond my control prevent me resume duty 15/8/78 stop Mr. SteliosStylianides holding my power of Attorney will contact CYTA".

On the 7th September, 1978 applicant sent a letter to the respondent Authority, through his advocate, referring to the previous correspondence between the applicant and the Authority requesting the respondent Authority to reconsider their decision giving new reasons for which the applicant could not return to Cyprus to resume his duties. The material part of such letter reads as follows:

"Ο πραγματικός λόγος, διά τον οποίον ο ρηθείς πελάτης μου και υπάλληλος της Αρχής εζήτησε νέαν παράτασιν της αδείας άνευ απολαβών είναι ότι ούτος είναι ασθενής και χρήζει συνεχούς Θεραπείας και παρακολουθήσεως υπό ειδικών ιατρών.

Επισυνάπτω προς τούτο σχετικά φωτοτυπικά πιστοποιητικά άτινα ομιλούν αφ' εαυτών, διά το είδος και την παρούσαν κατάστασιν της υγείας του ειρημένου υπαλλήλου.

Όθεν, παρακαλείσθε, όπως εν όψει των νέων προσκομισθέντων στοιχείων, ήτοι των ιατρικών πιστοποιητικών, επανεξετάσετε την εν λόγω υπόθεσιν και εγκρίνετε την ζητηθείσαν άδειαν, δι' όσον χρόνον χρειάζεται θεραπείαν και παρακολούθησιν ο ρηθείς υπάλληλος".

("The real reason for which my said client and employee of the Authority applied for a new extension of his leave without pay, is that he is sick and needs continuous treatment and follow-up by specialists.

I enclose, in this respect, photocopies of medical certificates which speak for themselves as to the present condition of the health of the said employee.

You are therefore, requested, in the light of the new facts put before you, that is, the medical certificates, to re-examine the said case and approve the leave applied for, so long as it is required by the said employee for his treatment").

The two medical certificates attached to the said letter, were one from a medical practitioner in Athens, in handwriting, dated 5.9.1978 whereby it is mentioned that the applicant was suffering from chronic spondyloarthritis and that he needed continuous and long treatment and that a year earlier he was operated in London for larynx trouble and that ever since he was attended by a doctor in London every six months and it concluded as follows:

"Ως εκ των ανωτέρω παθήσεων ως και άλλων οικογενειακών καταστάσεων ούτος έχει υποστεί νευρικόν κλονισμόν και κατέστη ανίκανος δι' εργασίαν προς το παρόν ευρισκόμενος υπό εντατικήν ιατρικήν παρακολούθησιν και για διάστημα ακόμη ολίγων μηνών".

("In the light of the above sickness and for other familyreasons he has suffered from nervous breakdown and he has become unable, for the time being, to work and he will be under intensive medical observation for a period of a few months").

The other is a photocopy of a letter dated 7th July, 1971 from the Orthopaedic Department of the Royal Masonic Hospital which reads as follows:

"This patient came to see me on a visit to London because of persistent pain in his neck and down the right arm for six months. This is associated with impairment of sensation in the right and little fingers of the right hand.

On examination, his neck moves fairly freely in all directions There was one or two trigger sports in the arm and forearm on the outer side and his biceps reflex is diminished. His X-Ray shows narrowing of the disc space between 06 and 07.

I have advised him to have some more traction when he gets home, and if he continues to have a lot of trouble, one might have to consider fusing the affected vertebrae. I would gladly see him again any time you wish".

The respondent Authority replied to counsel for the applicant by letter dated 12th September, 1978 reminding him of the correspondence.so far exchanged between the Authority and the applicant and informing him that the applicant failed to comply with his terms of employment and the directions given to him to resume his duties and concluded as follows:

"Ούτω και εν όψει των ως άνω η περίπτωσις του κ. Ανιλιάδη όστις εγκατέλειψε την υπηρεσίαν εξετάζεται βάσει των όρων της παραχωρηθείσης αδείας και των κανονισμών της Αρχής, οιαδήποτε δε εκ των υστέρων, 'διά λόγους υγείας' δικαιολογία, δεν δύναται να γίνη δεκτή και να επανορθώση την απέναντι της υπηρεσίας στάσιν του καθ' ότι και εις τας περιπτώσεις ασθενείας του προσωπικού υπάρχουν οι σχετικοί κανονισμοί οίτινες θα έπρεπε να ακολουθηθούν".

("Therefore, in the light of the above, the case of Mr. Aniliades who left his work is considered on the basis of the conditions of the leave granted to him and the Regulations V of the Authority, any allegation advanced afterthe events as justification for reasons of health' cannot be accepted and restore and cure the effect of his conduct towards his employer because in case of illness of the personnel: there are respective provisions in the Regulations which. should have, been followed").

The applicant never returned to Cyprus to resume his duties and. the respondent Authority by letter dated 22nd September, 1978 terminated applicant's employment as from the 20th September, 1978, in accordance with the Personnel Regulations of the Authority informing him at the same time that arrangements could be made for payment to him or to his attorney of all the benefits to which he was. entitled in accordance with the Regulations of the Provided Fund of the monthly personnel of the Authority.

In reply to such letter, counsel for applicant informed, the respondent Authority by letter dated 10.11.1978 that applicant accepted such termination,with the only reservation to claim from the respondent Authority compensation in respect of "meritorious services". Such letter reads as follows:

"Ενετάλην παρά του πελάτου μου κ. Ανηλιάδη, να αναφερθώ εις την επιστολήν Υμών υπό ημερ. 22ας Σεπτεμβρίου, 1978 και εις απάντησιν να αναφέρω τα εξής:

1. Ο ρηθείς πελάτης μου με πλήρη επιφύλαξιν απάντων των δικαιωμάτων του όπως διεκδικήση παρά της Αρχής αποζημιώσεις δι' 'ευδόκιμου υπηρεσίαν', αποδέχεται όπως λάβη άπαντα τα υπόλοιπα ωφελήματα άτινα δικαιούται συμφώνως ισχυόντων Κανονισμών.

2. Προς τούτο επισυνημμένως αποστέλλω προς υμάς φωτοαντίγραφον πληρεξούσιου έγγραφον δυνάμει του οποίου ο πληρεξούσιος αντιπρόσωπος εν Κύπρω του ειρημένου πελάτου μου κ. Στέλιος Στυλιανίδης δικαιούται να παραλάβη άπαντα τα ωφελήματα του πελάτου μου, ως προείρηται, και υπογράψη παν αναγκαίον έγγραφον ή απόδειξιν προς πραγμάτωσιν του σκοπού τούτου.

3. Όθεν, καλείσθε όπως το ταχύτερον ενεργήσητε δια την πληρωμήν προς τον πληρεξούσιου αντιπρόσωπον του πελάτου μου τα δικαιούμενα ωφελήματα ως προείρηται".

("I have been instructed by my client Mr. Aniliades torefer to your letter dated 22nd September, 1978 addressed to him and in reply to bring to your notice the following':

1. My said client with full reservation of all his rights to claim from the Authority compensation for 'meritorious service' accepts to receive all 'the other benefits to which he is ex titled in accordance with the Regulations in force.

2. Forsuch purpose, I enclose herewith photocopy of a general power of attorney by which the attorney inCyprus of my said client Mr. SteliosStylianides is authorised to collect all the benefits to which my client is entitled as above, and sign any necessary document or receipt to give effect to such purpose.

3. You are, therefore, asked, as soon as possible to effect payment to the attorney of my client of the benefits towhich he is entitled as hereinabove").

The respondent Authority paid to the applicant the benefits provided by the Provided Fund of the: permanent monthly employees but refused to pay to him any compensation for "meritorious service". Hence, the present recourse.

The legal grounds on which the recourse is based, as set out 'therein are as follows:

"(a) The act and or decision of the Respondent Authority to terminate the employment of the applicant as from the 20th September, 1978 is contrary to para. 3 of Article 21 of the General Regulations for the Personnel and in eon sequence it is illegal and devoid of any legal effect.

(b) The applicant served meritoriously for twenty-nine continuous years in the respondent Authority (and also in Cable and Warless. For such services he was entitled to payment of compensation for meritorious services In the case of another employee namely Thrombus and under similar incur stances, such compensation as paid and in consequence, the failure of the Respondent Authority to pa the applicant similar compensation, creates a question of discrimination within the meaning of Article 282) of the (Constitutions".

The respondent Authority by its opposition, relied on the following legal grounds:

"(1) The act and/or decision complained of was lawful and was taken in accordance with the law and the respective General Regulations of the Authority, Article 21, paras. 2&3.

(2) The Authority will rely on Article 9, para. 7 of the General Regulations and the reservation in the said paragraph whereby it is provided that the provisions for meritorious services are applicable only after mutual consent of the Authority and the employees.

(3) The case of the applicant is entirely different from that of Thrombus because the Respondent Authority decided that the services of applicant were indispensable and the circumstances of his case were of such a nature that the Respondent Authority could not consent to the retirement of the applicant from the service 'with the benefit of meritorious services'".

Counsel for the applicant submitted that the applicant was entitled to sick leave on the basis of the medical certificates submitted by him which leave the respondent Authority refused to grant to him in breach of regulations 15-21 of the General Personnel Regulations and in consequence the act of the respondent Authority to terminate the employment of the applicant was unjustified and should be declared null and void.

Dealing with the second part of his prayer, that is, the failure of the Authority to pay him compensation for "meritorious services" counsel for applicant maintained that the respondent Authority by refusing such compensation, acted in contravention of Article 9(7) of the Regulations, in view of the fact that applicant due to his long and meritorious service was entitled to such compensation and that in similar cases, and in particular in the case of one ex employee of the Authority, namely, Thrombus the Authority, under similar circumstances, paid to him such compensation.

Counsel for the respondent Authority in his address submitted that the services of the applicant were terminated due to his failure to attend his work after his leave of absence expired and after he was repeatedly warned of the consequences of suchfailure and that the allegation of medical grounds was an afterthought which, in any event, did not comply with the Regulations of the Authority concerning such cases. As to the question of compensation for meritorious services, it was his submission that applicant was not entitled to it as of right but this was a discretion given to the respondent exercised through its personnel council who moves first and fills the relevant tables or lists with the names of members of the personnel who under the provisions of rule 7 are entitled to be placed on it. He also differentiated the case of the applicant and that of Throumbos in that in the case of Throumbos he retired, having reached the normal age of retirement, whereas applicant's services were considered as still necessary to the respondent Authority and he was not an employee retiring after reaching the normal age of retirement, but an employee whose services were terminated by the Authority after he refused to carry on his duties.

Extensive reference has been made by both counsel to the General Personnel Regulations of the Authority and, in particular, to the Articles concerning termination of employment, sick leave, retirement on medical grounds and compensation for meritorious services. I shall therefore refer briefly to such Regulations.

Article 21 of the General Personnel Regulations deals with the retirement of employees of the Authority. Paragraph 3 of such Article which is material for the purposes of the present recourse, provides that absence of an employee from his work without justification for a period exceeding 30 working days continuously or at intervals within the same year, will be deemed as an act of resignation of the employee.

The provisions as to sick leave are contained in Articles 15, paragraphs 14-21. Under such provisions an employee is entitled to sick leave with pay for a maximum period of 42 days per annum (paragraph 4). In case of sickness extending over a period of 42 days sick leave can only be granted on the advice of the doctor of the Authority or the Health Committee of the Authority, for a period up to a maximum of six months with full pay, after the expiration of which, at the discretion of the Health Committee of the Authority, it may be extended for a further period of six months on half pay. After the expiration of such further period his services are either terminatedor if in the opinion of the Health. Committee his health may be restored, then a further period of one year without pay may be granted (paragraph 15) in the case of employees who are abroad on approved leave of absence sick leave can only be granted if the procedure mentioned therein is adhered to. Such procedure is as follows:

The employee has to report to the Diplomatic Services of the Republic on whose request he has to be examined by a doctor recommended by them and who has to prepare a medical report which has to be submitted through them to the Authority.

As to the dismissal of an employee on medical grounds provision is made in Article 20 paragraph 1(b) that in cases of bodily or mental disease rendering the employee unable to perform his duties or any other duties in another kind of work, the employee is dismissed from the employment of the Authority. Such incapacity for work has to be ascertained by the Health Committee consisting of one Government doctor as Chairman, the doctor of the Authority and one doctor recommended by the Trade Union of the Personnel in which the employee belongs, or by the Personnel of the Authority. Provision is also made as to the examination of employees residing at the time away from the place of the principal office of the Authority and who cannot attend such examination by delegating the examination to two members of the Committee who have to go on the spot, examine the employee and submit their opinion.

Under Article 33 provision is made for disciplinary offences which give power to the Authority to dismiss an employee under the provisions of Article 20(1)(c). Under paragraph 4(b) of Article 33, there is provision that any unjustified absence from work or the failure of the employee to keep the time table in accordance with the Regulations applicable, or the unjustified delay or refusal of a person transferred to attend his new post, are considered to be disciplinary offences which may lead to the dismissal of such employee.

With the above Regulators in mind and the facts before me I am coming to consider the first part of the recourse that is, whether the decision of the Authority to terminate the employment of the applicant is null and void and of no legal effect.

It is clear from the letters granting leave of absence to theapplicant that it was repeatedly pointed out to him that such leave of absence could not be extended for a period exceeding two years and that in case he did not resume his duties at the expiration of his leave of absence his services would be terminated.

Though the applicant applied several times to the Authority for extension of his leave of absence giving as his grounds for such application personal reasons, such applications were refused and his attention was repeatedly drawn to the factthat if he failed to attend his work his services would be terminated. After the expiration of his leave of absence and after he was informed that the Authority was considering the termination of his services, the applicant on the 7th September, 1978 that is 24 days after his failure to attend his work, by aletter sent through his advocate, advanced for the first time reasons of health in support of his application for extension of his leave of absence, enclosing the two medical certificates referred to earlier in this judgment. One of these certificates refers to the condition of his health in 1971 and not to anysickness from which he suffered at the material time when he made his application The other certificate is a certificate from a doctor in Athens which refers to complaints about chronic spondyloarthritis which required long-term treatment and it concludes that due to his health condition and his family circumstances he suffered nervous shock and is unable to work for the time being.

It is clear that the procedure provided by Article 21(3) of the General Personnel Regulations has not been complied with. The applicant never reported the matter to the Diplomatic Authorities of the Republic and he has never supplied the respondent Authority with a medical certificate of a doctor to whom he had to be referred by the Diplomatic Services of the Republic. The certificate which was produced could not, in any event, be taken into consideration by the Authority. Irrespective of that, considering the whole correspondence between the parties up to the time of his failure to resume his duties and the termination of his employment, it is evident that the question of health was never raised by the applicant and I have no doubt that this was an afterthought for remedying the breach of his conditions of service which had already been committed and whereby his services were deemed as ended.

Notwithstanding the above, however, there is one more ground for which his claim under paragraph (1) of the recourse should fail. The applicant by his letter through his advocate dated 10.11.1978 the full text of which has already been mentioned, earlier in this judgment, accepted the termination of his employment, reserving only his right to claim compensation in respect of "meritorious services". Therefore, by accepting such termination of employment without any reservation as to any other claim he is estopped from alleging that the act of the Authority by terminating his employment is null and void.

I come now to the second leg of the recourse which refers to his claim for compensation for "meritorious services" The relevant provision to which counsel have referred in respect of compensation for meritorious services, is Article 9, paragraph 7(d). Under such provision, the Personnel Council, in addition to its powers contained in paragraphs (a) (b) and (c) concerning the preparation of lists of employees entitled to promotion and those who should remain at the same post, is empowered to prepare lists of employees who have ended their career satisfactorily and, who are entitled to meritorious services benefit. There is, however, an express provision to such paragraph as follows:

"Νοείται ότι αι διατάξεις περί ευδοκίμου αφυπηρετήσεως δι' άπαντας τους βαθμούς του Προσωπικού εφαρμόζονται μόνον εις περιπτώσεις αμοιβαίας συγκαταθέσεως (Αρχής και Υπαλλήλων)".

("Provided that the provisions for meritorious retirement in respect of all ranks of the personnel are applicable only in cases of mutual consent (Authority and employees)").

Further, provision is made under paragraph 15 of Article 9 that those employees who have been considered as, having completed their career meritoriously are retired compulsorily in accordance with Article 20, paragraph (1)(f) of the Regulations which deals with the dismissal of the employees of the Authority. It is clear from the said Regulations that for a person to be placed on the list of employees who have meritoriously completed their career, there must be a mutual agreement of the employee and the Authority in view of the effect that such emplacement will have on the continuation of employment of the employee as the result of such emplacement is the compulsory retirement of the employee.

In the present case it is clear that applicant never applied to the Authority for his emplacement on such list in view of his retirement or that there ever was any mutual agreement to that end between the Authority and the applicant. The services of the applicant were terminated as a result of his failure to resume his duties which were considered by the Authority as essential and had to be continued.

In the case of Throumbos to which reference has been made by the applicant, the procedure contemplated by the Regulations was properly followed and his name was included in the list of personnel who meritoriously completed their career by mutual consent and upon his emplacement on such list he compulsorily retired from the service of the respondent Authority. The respondent Authority in refusing to pay the applicant any compensation for meritorious services did not act either arbitrarily or in breach of the Regulations, as the name of the applicant did not appear on the list of persons entitled to such benefit in accordance with the procedure contemplated by the Regulations but his services had been terminated due to his failure to resume his duties, as I have already mentioned in this judgment.

In the result, this recourse fails but in the circumstances of the case, I make no order for costs.

Application dismissed.

No order as to costs.

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