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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1983) 3 CLR 1246
1983 December 20
[A. LOIZOU. J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
GEORGHIOS ANDROKLIS,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE DISTRICT
OFFICER OF LIMASSOL AND/OR THE DISTRICT OFFICER OF LIMASSOL
IN HIS CAPACITY AS CHAIRMAN OF WATER WORKS OF POLEMIDHIA
AND YERMASOYIA AND/OR THE MINISTER OF INTERIOR,
Respondents.
(Case No. 491/81).
Act or decision in the sense of Article 146.1 of the Constitution-Government Water, Works-Water-guard-Employment and termination of services of-Matters coming within the domain of Private Law and not within that of Public Law-Termination of his employment does not amount "exercising any executive or administrative" authority in the sense of the above Article-As he could not be considered as being in the "Public Service" in the sense of Article 122 of the Constitution or of the Public Service Law, 1967-No recourse against such termination lies.
The applicant was on the 21st May 1976 appointed by the District Officer Limassol, in his capacity as the Chairman of the Water Works of polemidhia and Yermasoyia, as water guard of such water works. The terms of his employment were those of Government worker and his duties included, inter alia the examination of the function of meters and the recording of the consumption of water by each land-owner. His remuneration was fixed on an hourly basis. On the 27th August 1981 the District Officer in his aforesaid capacity terminated the services of the applicant giving as the main reasons that he had refused to attend for overtime work and had shown no repentance for his said omission.
Hence this recourse.
On the preliminary objection that this Court does not possess jurisdiction under Article 146 of the Constitution to entertain the recourse of the applicant on the ground that the relationship between the applicant and his employers, the respondents, was such that it came within the domain of Private Law and not within that of Public Law:
Held, that considering the nature and terms of the applicants employment and in particular the mode of payment as well as the express reference to' tile fact that he was equated to the status of Government workers, which shows the views taken of his status by his employing authority, the employment of the applicant and matters relating thereto come within the domain of Private Law and not within that of Public Law and that the' termination of his employment does not amount to "exercising any executive or administrative authority" in the sense of paragraph 1 of Article 146 of the Constitution", as the applicant could not be considered as being in the "public service" in the sense of Article 122 of the Constitution, or the Public Service Law, 1967, or as employed in such circumstances as to bring his employment and his termination as matters falling within the domain of Public Law; that this Court, therefore, has no competence in the matter and the recourse ought to be dismissed for lack of jurisdiction.
Application dismissed.
Cases referred to:
Loizou and Another v. CY.T.A. 4 R.S.C.C. 48 at pp. 51, 52;
Ioannou and Others v. Republic (1967) 3 C.L.R. 279;
Paschalidou v. Republic (1969) 3 C.L.R. 297;
Papakyriakou v. Republic (1970) 3 C.L.R. 351.
Recourse.
Recourse against the decision of the respondents to terminate applicant's services as a Water-guard of the Government Waterworks of Polemidhia-Yermasoyia.
E. Efstathiou, for the applicant.
A. Vladimirou, for the respondents.
Cur. adv. vult.
A. LOIZOU J. read the following judgment. By the present recourse the applicant seeks a declaration of the Court that the decision of the respondents communicated to him by their letter dated 6th October 1981, Appendix "A", by which they terminated his services as a water-guard of the Government Waterworks, of Polemidhia-Yermasoyia, is null and void and of no legal effect whatsoever.
The applicant by letter dated 18th May 1976 (exhibit 1 blue 2), applied to the District Officer, Limassol for appointment as water-guard to the said works for the area of Akrounta. He was a graduate of the elementary school of that village and he was at the time 25 years of age married with one child: He expressed also therein his willingness to purchase a motor-cycle, if necessary. The District Officer acceded to the application and by his letter dated 21st May 1976, (exhibit 1-blue 3) appointed the applicant as from the 24th May .1976 on the terms set out therein, which are the following:
"(a) Your remuneration will be 233 mils per hour each week.
(b) If you are ordered to work overtime it will be calculated in accordance with the Government circulars in force relating to Government works.
(c) You are obliged to have a motor--cycle and your travelling will be paid on the basis of the existing relevant decisions of the Government.
(d) Your duties will be:-
(i) Examination of the function of meters.
(ii) Recording of the consumption of water by each land-owner.
(iii) Generally you will comply to the instructions of the Inspector of the Government Waterworks and you will carry out any work that he may assign to you with regard to the Government Water-works.
(e) Generally the terms of your employment, (except those referred to hereinabove), will be those of Government workers except if otherwise decided in the future by the Committee of the Government Waterworks of Polemidhia and Yermasoyia".
On the 20th April 1977 new terms of remuneration and of hours of work were agreed and they appear in a letter of that date (exhibit I-blue 4) addressed to the applicant by the District Officer in his capacity, this time, as the Chairman of the Water-works of Polemidhia and Yermasoyia.
On the 27th August 1981, the District Officer in his aforesaid capacity wrote to the applicant (exhibit 1-blue 8) terminating his services as from the 30th September 1981 giving as the main reasons that (1) he had refused to attend for overtime work, whereas the Director of the waterworks Mr. Costas Homatenos had ordered him to assume such duties telling him that the giving of help by him was necessary as there might have been a broken pipe or something else of a serious nature which called for the immediate closing of the supply or the supply from other sources. (2) That he had shown no repentance for his said omission.
The applicant through his advocate wrote to the District Officer letter dated the 29th August 1981 (exhibit 1-blue 10) to which the District Officer in his capacity as a Chairman of the said Waterworks answered by letter dated 29th September 1981, (exhibit 1-blue 16), which appears to have been communicated to the applicant by a letter dated 6th October, 1981 (exhibit 1-blue 18, or Appendix "A", attached to the application).
It has been raised by way of a preliminary objection that this Court does not possess jurisdiction under Article 146 of the Constitution to entertain the recourse of the applicant again t the termination of his employment on the ground that the relationship between the applicant and his employers, the respondents, was such that it came within the domain of Private Law and not within that of Public Law.
The principles relevant to this issue were dealt with in the case of Doloros Loizou and another v. Cyprus Inland Telecommunication Authority 4, R.S.C.C. p. 48, where at p. 51 it was stated:
"The Court is of the opinion that the issue whether a particular workman is regularly employed, as above, is an issue of fact to be determined in each case on the basis of all relevant circumstances. The period of his service the security of tenure, the nature of the duties, the view taken of the status of such workman by his employing authority, are all relevant matters to be weighed, together with other pertinent factors, in order to arrive at a proper conclusion".
And at p. 52
"Coming now to the question whether the termination of the services of Applicant No. 2 was validly made, the court is of the opinion that such termination does not amount to exercising any 'executive or administrative authority in the sense of paragraph 1 of Article 146 inasmuch as Applicant No.2 not being in the public service, in the sense of Article 122, his employment by Respondent is not a matter of public law but of private law. The Court therefore has no further competence in such a matter".
These principles have been consistently followed in a number of cases including inter alia those of Ioannou and others v. The Republic (1967) 3 C.L.R. p. 279; Paschalidou v. The Republic (1969) 3 C.L.R. 297; Papakriakou v. The Republic (1970) 3 C.L.R. 351.
Guided by the aforesaid principles and considering the nature and terms of the applicant's employment and in particular the mode of payment as well as the express reference to the fact that lie was equated to the status of Government workers which shows the views taken of his status by his employing authority, I have come to the conclusion that the employment of the applicant and matters relating thereto come, within the domain of Private Law and not within that of Public Law and that the termination of his employment does not amount to "exercising any executive or administrative authority in the sense of paragraph 1 of Article 146 of the Constitution", as the applicant could not be considered as being in the "public service" in the sense of Article 122 of the Constitution, or the Public Service Law, 1967, or as employed in such circumstances as to bring his employment and his termination as matters falling within the domain of Public Law. The Court therefore has no competence in the matter and the recourse ought to be dismissed for lack of jurisdiction.
Needless to say that there are other forums with competence to entertain the applicant's grievance on its merits, which I have not done, in view of the result arrived at on the preliminary issue.
The recourse is therefore dismissed with no order as to costs.
Recourse dismissed with no order
as to costs.