|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1984) 3 CLR 815
1984 May 23
[LORIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
DR. ANDREAS CHRYSSAFINIS,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondent.
(Case No. 74/84).
Constitutional Law—Equality—Discrimination—It can only arise as between persons in equal situations—Onus on applicant to establish discrimination who failed to do so in this case.
Public Officers—Disciplinary offences—Investigation—Interdiction—Pending final disposal of case against officer—Not open to the respondent Commission because it was neither moved to that effect by the appropriate authority nor was any material before it justifying interdiction after the completion of the investigation—Part of sub judice interdiction going beyond the date of the completion of the investigation envisaged by regulations 1-8, set out in the second schedule Part I of the Public Service Law, 1967,annulled.
The applicant was a Senior Specialist Obstetrician and Gynaecologist in the Government Service and the Director of the Department of Obstetrics and Gynaecology of the Nicosia General Hospital. Following reports for alleged private practice in medicine and alleged use of the Chambers and other facilities of the Nicosia General Hospital for treatment of private patients by the applicant, an investigation for the alleged disciplinary offences, was directed on 24.11.1983 by the appropriate authority under the provisions of paragraph (b) of section 80 of the Public Service Law,1967 (Law 33/67) and an investigating Officer was appointed. By a letter dated the 25th November, 1983 which he addressed to the Public Service Commission the Minister of Health stated that the Investigating officer will be confronted with difficulties in the taking of the relevant statements in case the applicant is present on duty at his place of work because a number of witnesses are hierarchically inferior to him and, thus, there is a possibility of their being influenced; and proposed, for these reasons, that applicant be interdicted. The Public Service Commission after taking into consideration the above letter of the Minister and all the material before it decided to interdict the applicant "until the final completion of the case against him" persuant to section 84(1) of the Public Service Laws, 1967-1983. Hence this recourse. Counsel for the applicant mainly contended that the applicant has been treated in a discriminatory manner and that the respondent acted in excess of power by extending the interdiction beyond the period of the investigation.
Held, (1) that the question of discrimination can only arise as between persons being in equal situations (see Paschali v. Republic (1966) 3 C.L.R. 593); that the onus is on the applicant to establish such discrimination (see Miliotis v. Republic (1969) 3 C.L.R. 597); that in the instant case even the averments made by the applicant in connection with "discrimination" are far too vague and the applicant has failed to discharge the onus cast upon him.
(2) That though it was reasonably open to the Public Service Commission to reach a decision that the applicant should be interdicted in the public interest for the period of the investigation into the alleged offences it was not open to the Public Service Commission to interdict the applicant until the final disposal of the case against him as the Public Service Commission was neither moved to that effect by the appropriate authority nor was any material before it justifying a decision for interdiction until the final disposal of a probable disciplinary case; accordingly that part of the sub judice decision which goes beyond the date of the completion of the investigation envisaged by regulations 1-8 (both inclusive), set out in the Second Schedule Part I of Law 33/67, must be annulled.
Sub judice decision partly annulled.
Cases referred to:
Payiatas v. Republic (1984) 3 C.L.R.165;
Grigoropoullosv.Republic (1984)3C.L.R.449;
Paschali v.Republic (1966)3 C.L.R.593;
Miliotis v.Republic (1969) 3C.L.R.597;
Georghiades v. Republic (1969) 3 C.L.R. 396 at p. 405.
Recourse.
Recourse against the decision of the respondent to interdict applicant from his duties as Senior Specialist Gynaecologist.
K.Talarides withG.Tornaritis,for the applicant.
N. Charalambous, Senior Counsel of the Republic with
M.Flourentzos,Counselof theRepublic,for the respondent.
Cur.adv. vult.
Loris J. read the following judgment. The applicant by means of the present recourse contests the validity of the decision of the respondent Public Service Commission to interdict him from his duties as Senior Specialist Gynaecologist, praying for a declaration of this Court to the effect that the aforesaid decision is null and devoid of any legal effect.
The said decision of the respondent is set out in a letter dated 26.11.1983, addressed to the applicant (vide exh. 1 attached to the recourse) which reads as follows:
"ΤΕΚΜΗΡΙΟΝ '1'
|
Αρ. Φακ.: Π. 12039 |
ΓΡΑΦΕΙΟ ΕΠΙΤΡΟΠΗΣ ΔΗΜΟΣΙΑΣ ΥΠΗΡΕΣΙΑΣ ΛΕΥΚΩΣΙΑ. |
|
ΠΟΛΥ ΕΠΕΙΓΟΥΣΑ ΕΜΠΙΣΤΕΥΤΙΚΗ |
26 Νοεμβρίου 1983 |
Κύριο
Ανδρέα Μ. Χρυσαφίνη,
Ανώτερο Ειδικό Ιατρό,
(Μέσω Γεν. Διευθ. Υπ. Υγείας
και Διευθυν. Ιατρ. Υπηρ. και Υπηρ. Δημόσιας Υγείας).
Έχω οδηγίες να αναφερθώ στην πειθαρχική έρευνα που διατάχθηκε εναντίον σας με απόφαση του Υπουργικού Συμβουλίου με ημερομηνία 24.11.1983 και να σας πληροφορήσω ότι η Επιτροπή Δημόσιας Υπηρεσίας, αφού έλαβε υπόψη όλα τα ενώπιον της στοιχεία, έκρινε ότι είναι προς το δημόσιο συμφέρον να τεθείτε σε διαθεσιμότητα.
2. Γι' αυτό, η Επιτροπή σας θέτει σε διαθεσιμότητα από την ερχόμενη Δευτέρα 28 Νοεμβρίου 1983 και μέχρι την τελική συμπλήρωση της εναντίον σας υπόθεσης σύμφωνα με το άρθρο 84(1) των περί Δημοσίας Υπηρεσίας Νόμων του. 1967 έως 1983.
3. Η Επιτροπή αποφάσισε περαιτέρω να σας επιτραπεί να λαμβάνετε το 1/2 των απολαβών της θέσης σας κατά τη διάρκεια της περιόδου της διαθεσιμότητας σας.
Για Πρόεδρο
Επιτροπής Δημόσιας Υπηρεσίας".
("Exhibit 1
File No. P. 12039
OFFICE OF THE PUBLIC
SERVICE COMMISSION
NICOSIA
VERY URGENT
CONFIDENTIAL
26 November, 1983.
Mr. Andreas M. Chryssafinis,
Senior Specialist,
(Through Dir.-Gen. Min. of Health
and Dir. of Med. Services and Public Health Services).
I am directed to refer to the disciplinary investigation directed against you by a decision of the Council of Ministers dated 24.11.1983 and to inform you that the Public Service Commission, after having taken into consideration all the material before it, decided that it is in the public interest that you should be placed under interdiction.
2; For this reason, the Commission places you under interdiction as from next Monday 28th November, 1983 and until the final completion of the case against you in accordance with section 84(1) of the Public Service Laws, 1967-1983.
3. The Commission has further decided that you will be allowed to receive 1/2 of the emoluments of your post during the period of your interdiction.
For Chairman
Public Service Commission").
The salient facts of this case are as follows:
The applicant is a Senior Specialist Obstetrician and Gynaecologist in the Government Service; in fact he is the Director of the Department of Obstetrics and Gynaecology of the Nicosia General Hospital.
As it appears from the relevant documents before me, following reports for alleged private practice, in medicine and alleged use of the Chambers and other facilities of Nicosia General Hospital for treatment of private patients by the applicant, an investigation for the alleged disciplinary offences, as aforesaid, was directed on 24.11.1983 by the appropriate authority under the provisions of paragraph (b) of section 80 of the Public Service Law 1967 (Law No. 33/67).
On 25.11.1983 the Minister of Health addressed a letter to the respondent Public Service Commission (attached to the opposition) requesting the latter to interdict the applicant, suspending him from duty pending the completion of the investigation into the aforesaid alleged disciplinary offences for the reasons stated therein. A copy of the letter in question which is attached to the opposition (marked Appendix 1) reads as follows:
|
ΥΠΟΥΡΓΕΙΟΝ ΥΓΕΙΑΣ Αρ. Υ.Υ. 407/61/5/V ΕΜΠΙΣΤΕΥΤΙΚΗ-ΕΠΕΙΓΟΥΣΑ Πρόεδρο Επιτροπής Δημόσιας Υπηρεσίας, |
"ΠΑΡΑΡΤΗΜΑ 1 ΓΡΑΦΕΙΟΝ ΥΠΟΥΡΓΟΥ ΛΕΥΚΩΣΙΑ, ΚΥΠΡΟΣ 25 Νοεμβρίου, 1983 |
Ύστερα από πρόσφατες καταγγελίες διατάχθηκε σήμερα η διεξαγωγή έρευνας σε βάρος του ιατρού Χρυσαφίνη για άσκηση ιδιωτικής ιατρικής και ότι χρησιμοποίησε τους θαλάμους, διευκολύνσεις και πόρους του Γενικού Νοσοκομείου Λευκωσίας για περίθαλψη των ιδιωτικών του ασθενών. Προς τούτο διορίστηκε ύστερα από σχετική απόφαση του Υπουργικού Συμβουλίου (24.11.1983) σαν Ερευνών Λειτουργός ο κ. Ν. Συμεωνίδης, Γενικός Διευθυντής Υπουργείου Δικαιοσύνης.
Η αρμόδια αρχή πιστεύει ότι ο Ερευνών Λειτουργός θα αντιμετωπίσει δυσκολίες κατά τη λήψη όλων των αναγκαίων μαρτυριών, στη περίπτωση παρουσίας του καταγγελλομένου ιατρού στο χώρο όπου εργάζεται, διότι αρκετοί από τους μάρτυρες βρίσκονται ιεραρχικά κάτω από τον καταγγελλόμενο ιατρό και υπάρχει η δυνατότητα επηρεασμού. Θα αντιμετωπίσει επίσης δυσκολίες στην αναζήτηση και μελέτη των απαραίτητων εγγράφων που θα μπορούσαν να βοηθήσουν την έρευνα και που φυλάττονται στο Τμήμα του οποίου προΐσταται ο καταγγελλόμενος.
Για όλους τους πιο πάνω λόγους εισηγούμαι όπως ο ιατρός Χρυσαφίνης ιεθεί σε διαθεσιμότητα.
Στην περίπτωση αποδοχής της εισηγήσεως μας οι υπηρεσίες μας δεν θα επηρεασθούν γιατί μπορούμε να προβούμε σε προσωρινή αντικατάσταση με άλλους ιατρούς της ίδιας ειδικότητας.
(Υπ.) ΤΑΚΗΣ ΠΕΛΕΚΑΝΟΣ
Υπουργός".
("SCHEDULE 1
MINISTRY OF HEALTH
MINISTER'S OFFICE
NICOSIA, CYPRUS
No. M. H. 407/61/5/V
25 November, 1983
CONFIDENTIAL-URGENT
Chairman,
Public Service Commission,
After recent reports the commencent of an investigation was ordered today against Dr. Chryssafinis for private practice in medicine and that he used the Chambers and other facilities and means of the Nicosia General Hospital for treatment of his private patients. For this purpose, Mr. N. Symeonides, Director-General, Ministry of Justice was appointed as an investigating officer after a relative decision of the Council of Ministers (24.11.1983)
The appropriate authority believes that the investigating officer will face difficulties during the taking of all the necessary statements, in the case of the presence of the accused doctor at the place where he works, because many of the witnesses are hierarchically under the accused doctor and there is a possibility of their being influenced. He will also face difficulties in the search and study of the necessary documents which could help the investigation and which are kept in the Department of which the accused is the Head.
For all the above reasons 1 suggest that Dr. Chryssafinis be placed under interdiction
In the case of the acceptance of our submission our services will not be affected because we can proceed with a temporary replacement with other doctors of the same speciality.
(Sgd.)TakisPelekanos
Minister").
The respondent P.S.C. at its meeting of 26.11.1983 decided to interdict the applicant from 28.11.1983 "and until the final completion of the case against him" pursuant to s. 84(1) of the Public Service Law 33/67 as amended.
Copy of the relevant decision of the respondent P.S.C. is appended to the opposition (Appendix 2) and reads:
"ΠΑΡΑΡΤΗΜΑ 2.
Απόσπασμα από τα Πρακτικά της Συνεδρίασης της Επιτροπής Δημόσιας Υπηρεσίας με ημερομηνία 26.11.1983—9 π.μ.
....................................
12. Πρόταση για διαθεσιμότητα του Ανδρέα Μ. ΧΡΥΣΑΦΙΝΗ, Ανώτερου Ειδικού Ιατρού στις Ιατρικές Υπηρεσίες και Υπηρεσίες Δημόσιας Υγείας.
Ο Υπουργός Υγείας, ως ενδιαφερομένη αρμόδια αρχή, με επιστολή του με αρ. Υ.Υ. 407/61/5/V και ημερ. 25.11.1983, πληροφόρησε την Επιτροπή ότι ύστερα από καταγγελίες ότι ο Ανδρέας Μ. Χρυσαφίνης, Ανώτερος Ειδικός Ιατρός στις Ιατρικές Υπηρεσίες και Υπηρεσίες Δημόσιας Υγείας, ασκεί ιδιωτικά την ιατρική και ότι χρησιμοποιεί θαλάμους, διευκολύνσεις και πόρους του Γενικού Νοσοκομείου Λευκωσίας για την περίθαλψη ιδιωτικών του ασθενών, το Υπουργικό Συμβούλιο με Απόφαση του ημερ. 24.11.1983 όρισε το Νίκο Συμεωνίδη, Γενικό Διευθυντή του Υπουργείου Δικαιοσύνης, ως Ερευνώντα Λειτουργό για τη διεξαγωγή πειθαρχικής έρευνας εναντίον του πιο πάνω υπαλλήλου.
Ο Υπουργός Υγείας εισηγήθηκε να τεθεί ο Χρυσαφίνης σε διαθεσιμότητα αναφέροντας ότι, αν αυτός συνεχίσει να εργάζεται, αναμένεται ότι ο Ερευνών Λειτουργός θα αντιμετωπίσει δυσκολίες στη λήψη των αναγκαίων μαρτυριών και στην αναζήτηση και μελέτη των απαραίτητων εγγράφων που θα μπορούσαν να βοηθήσουν στην έρευνα, γιατί τα έγγραφα αυτά φυλάσσονται στο τμήμα του οποίου προΐσταται ο υπάλληλος και αρκετοί από τους μάρτυρες είναι υφιστάμενοι του.
Ο Υπουργός περαιτέρω ανάφερε ότι δε θα επηρεαστεί η υπηρεσία σε περίπτωση που ο Χρυσαφίνης θα τεθεί σε διαθεσιμότητα, γιατί υπάρχει δυνατότητα προσωρινής αντικατάστασής του από άλλους ιατρούς της ίδιας ειδικότητας.
Η επιτροπή λαμβάνοντας υπόψη τα ανωτέρω καθώς επίσης και όλα τα ενώπιόν της στοιχεία, έκρινε ότι είναι προς το δημόσιο συμφέρον να τεθεί σε διαθεσιμότητα ο Ανδρέας Μ. ΧΡΥΣΑΦΙΝΗΣ, Ανώτερος Ειδικός Ιατρός στις Ιατρικές Υπηρεσίες και Υπηρεσίες Δημόσιας Υγείας.
Έτσι, Η Επιτροπή αποφάσισε να θέσει τον υπάλληλο σε διαθεσιμότητα από 28.11.1983 και μέχρι την τελική συμπλήρωση της εναντίον του υπόθεσης, σύμφωνα με το άρθρο 84(1) των περί Δημοσίας Υπηρεσίας Νόμων του 1967 έως 1983.
Η Επιτροπή αποφάσισε περαιτέρω να επιτραπεί σ' αυτόν να λαμβάνει το 1/2 των απολαβών της θέσης του κατά τη διάρκεια της. διαθεσιμότητάς του.
......................................"
("SCHEDULE.2
Extract from the Minutes of the Meeting of the Public Service Commission dated 26.11.1983—9 a.m.
....................................
12. Submission for the interdiction of Andreas M. Chryssafinis, Senior Specialist in the Health Services and the Services of Public Health.
The Minister of Health as the interested appropriate authority, by his letter No. M.H. 407/61/5/V dated 25.11.1983, informed the Commission that after accusations that Andreas M. Chryssafinis, Senior Specialist in the Health Services and the Services of Public Health exercises private medicine and that he uses Chambers, facilities and means of the Nicosia General Hospital for the treatment of his private patients, the Council of Ministers by its decision dated 24.11.1983 appointed Mr. Nicos Symeonides, Director-General of the Ministry of Justice as an investigating officer for the carrying out of disciplinary investigation againsttheaboveofficer.
The Minister of Health suggested that Chryssafinis be placed under interdiction stating that if he continues to work, it is expected that the investigating Officer will face difficulties in obtaining the necessary statements and in the search and study of the necessary documents which could help the investigation because these documents are kept in the department of which he is the Head and many of the witnesses are his subordinates.
The Minister further stated that the service will not be affected in case Chryssafinis is placed under interdiction because there is a possibility of his temporary replacement by other doctors of the same speciality.
The Commission having taken into consideration the above and also all the particulars before it, decided that it is in the public interest that Andreas M. Chryssafinis, Senior Specialist in the Health Services and Public Health Services be placed under interdiction.
Therefore the Commission decided to place the officer under interdiction as from 28.11.1983 until the final completion of the case against him in accordance with section 84(1) of the Public ServiceLaws,1967-1983.
The Commission has further decided that he will be allowed to receive 1/2 of the emoluments of his post during the period of his interdiction.
........................")
The above mentioned decision of the respondent P.S.C. was communicated to the applicant on 26.11.1983 by means of a letter (exh. 1 attached to the recourse) the contents of which are set out above at the beginning of the present judgment; the present recourse impugnes the decision therein contained.
The respondent P.S.C. filed an opposition in which it is stated that "the act and/or decision attached is duly reasoned and was reached at correctly and lawfully pursuant to the relevant provisions of the Constitution, the Laws and/or Regulations, after due exercise by the Respondent of the powers vested in them after due consideration of all material facts and circumstances of the case".
I may as well add here that pursuant to the directions of this Court a written address and a reply were filed by the applicant, the respondent having also filed a written address. Several copies of documents were attached to the recourse, the opposition and the written address of applicant; all these documents appear in the file and I do not intend making specific reference to them at least at this stage.
Finally Counsel on both sides had the opportunity of clarifying viva voce before me several points but they adduced no evidence.
In order to complete the picture as regards the salient facts it may be added here, that at least up to the 13.4.1984 (the day on which oral clarifications were made) the investigation into the disciplinary offences was not completed and the investigating officer who was appointed by the Council of Ministers pursuant to regulation 1, of Part I of the Second Schedule to Law 33/67 (as amended), did not submit his report. He addressed though a confidential letter to the applicant on 13.3.1984 consisting of three pages, (vide exh. 3 attached to the written address of the applicant) wherein the case against the applicant is stated with sufficient particularity and the applicant is given opportunity of being heard either orally or in writing.
From the letter in question I shall confine myself to note at this stage that the probable disciplinary charges amount to 10 whilst one of these referring to private practice, is sub-divided into 17 different periods commencing from June 1977 and extending uptoAugust1983.
In view of legal argument advanced by both sides on "interdiction" and in particular in view of the doubts cast by the respondents in their written address as to the justiciability of a recourse impugning "interdiction" owing to the fact that "interdiction" is only a preparatory process of the subsequent investigation and probable prosecution of a disciplinary charge I consider it pertinent at this stage to deal as briefly as possible with the object and character of interdiction as well as to its amenability to the jurisdiction under Article 146 of our Constitution.
Thus in the recent case of Payiatas v. The Republic (1984) 3 C.L.R. 165, the nature and effect of interdiction is described by my brother Judge Savvides J. as follows:
"Interdiction, and this is the effect of Veis and Azinas cases, is neither a disciplinary punishment nor does it form part of the disciplinary process in its strict sense. It is a measure resorted to by the administration when a disciplinary investigation is ordered, in order to facilitate the task of the investigation....."
In the same judgment the learned Judge had this to say on the "justiciability" of a recourse impugning "interdiction";
"Interdiction, according to the decisions in the case of Veis & Others v.The Republic (1979) 3 C.L.R. 390 at pp. 405, 406 and Azinas v. The Republic (1980) 3 C.L.R. 510, amounts to an administrative action which has all the essential attributes of an executory decision that can be challenged by recourse under Article 146 of the Constitution, and which while it lasts, affects adversely and directly existing legitimate interests of an applicant in the sense of paragraph 2 of the said Article 146. Therefore the applicant in the present recourse is entitled to challenge such decision by recorse..."
And most recently, on 15.3.1984 in case No. 544/83 Nicos Grigoropoullos v. The Republic (still unreported) my brother Judge Pikis J. gave the character of interdiction as follows:
"Notwithstanding the inconclusive character of interdiction and the absence of any permanent repercussions on the status of the officer in the Force, it is, nonetheless, an executory act because of its immediate legal consequences resulting in the removal, be it temporarily, of the officer from the Force and the financial repercussions consequent thereupon. So, although interdiction is an incident of a preparatory act, that is, the investigation, it is, because of its consequences, detachable, therefrom and justiciable as an independent executory act...It is a discretionary power, exercisable, like every discretionary power, in the interest of promotion of the purpose for which it is given....`The principal object of the power to interdict is, to ensure the unobstructed investigation of a case. Temporary suspension from the Force is justified whenever the removal of the officer from the rank is judged expedient in the interests of the efficacy of the investigation.
Failure to specify the reasons leading to a decision in the notification of the decision, is not fatal. The reasoning may be supplemented and, in a proper case, extracted from the file......"
It is abundantly clear from the above that "interdiction" is not a disciplinary punishment; interdiction is only a preparatory process either for the subsequent investigation into an alleged offence or it may be also a preparatory process both for the subsequent investigation and for the probable prosecution for disciplinary charges. Such a preparatory process is because of its consequences as decided in Grigoropoulos v. Republic (supra) detachable and therefore justiciable as an independent executory act.
In the present case it is clear that an investigation of a disciplinary offence was directed against the applicant under the provisions of paragraph (b) of s. 80 of Law 33/67; and the Public Service Commission on being moved to that effect and after exercising its discretion was legitimately entitled to interdict the officer if in its opinion the public interest so required. Provided that all essential ingredients were present, the interdiction, according to s.84(1) of Law 33/67, could be either an "interdiction pending the investigation" only, or an interdiction covering the period of investigation and the period of a probable prosecution, until final disposal of such disciplinary case against theapplicant.
The sub judice decision is being impugned on nine grounds of law set out in the present recourse; all these grounds in the light of applicant's written address and oral clarifications may be dealt with under two broad heads:
A.Discrimination
B.Misconception of facts.
In respect of 'discrimination' it has to be borne in mind that (i) "the question of discrimination can only arise as between persons being in equal situations" (Paschali v. Republic (1966) 3 C.L.R. 593) (ii) "the onus is on the applicant to establish such discrimination" (Miliotis v.Republic (1969)3C.L.R.597).
In the instant case even the averments made by the applicant in connection with "discrimination" are far too vague and I can state straight away that the applicant has failed to discharge the onus cast upon him. Definitely I cannot go into the details of the interdiction of other government Doctors named in the recourse and compare them with the sub judice interdiction of the applicant. In the first place I do not have before me the facts of those cases so as to compare them with the facts of the case in hand; but the most important factor is that the cases of those doctors are pending as I understand, before another Judge or Judges of the Supreme Court.
How then can I know whether the applicant in the present recourse and other government doctors named herein are being in equal situation?
As regards the collateral complaint of the applicant that the respondent P.S.C. should not give its sub judice decision before the judgment is pronounced by another Judge of this Court in recourse 204/83 in which the applicant in the present case is also an applicant together with a number of other Government Doctors, I shall confine myself in saying that it is impermissible for me either to deal with facts set out in a pending case before another Judge or attempt even to deduce inferences from facts which form part of a pending case and which facts werenever brought orestablished beforeme.
Having dealt with the first head of the complaints I shall now proceed to examine the second which includes the specific submission contained in para. 9 of applicant's written address to the effect that respondent P.S.C. acted in excess of power by extending the interdiction beyond the period of the investigation covering without reasoning the period of future probable prosecution until final disposal of such disciplinary case against the applicant.
It has been submitted by leading counsel appearing for applicant that when an investigation of a disciplinary offence is directed under the provisions of paragraph (b) of section 80 of Law 33/67 against an officer the P.S.C. does not proceed under s. 84 of the same Law to interdict the officer in question acting ex proprio motu but it has to be moved to that effect; I agree with this submission of learned counsel and I shall proceed to examine the motion of the appropriate authority as well as the material placed before the P.S.C. for that purpose.
As I have already stated earlier on in the present judgment, the respondent P.S.C. was moved by a letter of the Minister of Health on 5.11.1983 (Appendix 1).
The material placed before the P.S.C., which the P.S.C. took into consideration in reaching the impugned decision according to the sub judice decision itself which is appended as appendix 2 to the opposition, already referred to earlier on in the present judgment, is stated at para. 4 thereof to have been the letter of the Minister of Health dated 25.11.1983 as well as "και όλα τα ενώπιον της στοιχεία".
The said letter of the Minister of Health addressed to the P.S.C as I read it, clearly speaks of the difficulties the investigating officer will be confronted with, during the investigation and invites the P.S.C. to interdict the applicant during the investigation into the alleged offences. I could not trace therein any further request for the extension of the interdiction beyond the investigation and until the final determination of a probable disciplinary case against the applicant.
Learned counsel appearing for the respondent Commission submitted that only the facts which were placed before the P.S.C. at the time when the relevant administrative decision was taken should be considered. I could not agree with him more; it is abundantly clear to my mind that the P.S.C. had before it at the material time of issuing the sub judice decision only the relevant letter of the Minister of Health which, I repeat, was giving reasons for the application to interdict the applicant pending the investigation into the alleged disciplinary offences.
Having considered his above letter I hold the view that it was reasonably open to the Public Service Commission to reach a decision that the applicant should be interdicted in the public interest for the period of the investigation into the alleged offences.
It was not open to the Public Service Commission to interdict the applicant until the final disposal of the case against him as the Public Service Commission was neither moved to that effect by the appropriate authority nor was any material before it justifying a decision for interdiction until the final disposal of a probable disciplinary case.
It is true that in the aforesaid decision of the Public Service Commission one can read that the commission took into consideration the facts contained in the letter of the Minister as well as " και όλα τα ενώπιον της στοιχεία ". The decision does not disclose what " και όλα τα ενώπιον της στοιχεία " were, nor could I trace any other ingredients in the relevant documents before me to that effect.
Learned counsel appearing for the Republic vehemently argued before me that the gravity of the offence under examination, the nature of the complaint against the applicant, and the position of the applicant as a Director of Obstetrics and Gynaecological Department of Nicosia General Hospital should be taken into consideration and would entitle th Public Service Commission to interdict the applicant both pending the investigation and the completion of a probable prosecution of the relevant disciplinaty charge or charges against the applicant. In this respect I have to repeat that all this factual substratum was placed before the Public Service Commission by the letter of the Minister of Health who substantially asked the Commission to interdict the applicant pending the investigation into the alleged disciplinary charges. Undoubtedly as s. 84(1) of Law 33/67 entitles the Public Service Commission to interdict the applicant from duty pending the investigation only or even pending the investigation and final disposal of a future case against him as well; but in so doing the Public Service Commission has to exercise a wide discretion in the public interest on facts which are placed before it and in this particular case I hold the view that the Public Service Commission was moved only to interdict the applicant pending the investigation of the alleged offences and the facts placed before it being the facts contained in the letter of the Minister were confined only to matters connected with the investigation of the alleged offences and not to probable future disciplinary prosecution.
It was argued on behalf of the applicant that even if the applicant were to be suspended pending the investigation such investigation should be completed within 30 days as provided by Law 33/67. In this connection I feel duty bound to mention two things: (a) In the case Lefcos Georghiades v. Republic (1969) 3 C.L.R. 396 at pp. 405 and 406 it was stated that the regulation "which specifies a period of 30 days for the completion of the investigation is not a provision which entails invalidity in case of non-compliance with it, but it is in the nature of a directive only....."
(b) It is impermissible at the hearing of the present recourse to deal with the question of time within which the alleged offence or offences ought to have been investigated into. This could probably be the subject of a different recourse.
In respect of the present recourse I shall confine myself in noting only that the investigation into the alleged offences was still incomplete (in the sense envisaged by the regulations relating to the investigation of offences in the Second Schedule Part I of Law 33/67) on the 13th April, 1984 when the hearing of the present recourse was completed.
For all the above reasont I hold the view that the sub judice decision is a valid decision which was reasonably open to the respondents only up to and including the completion of the investigation as envisaged by the Regulations relating to the investigation of offences set out in the Second Schedule Part I of Law 33/67, (Regulations 1-8 both inclusive).
That part of the sub judice decision which goes beyond the date of the completion of the investigation envisaged by regulations 1-8 (both inclusive) set out in the Second Schedule Part I of Law 33/67 is hereby annulled.
My present judgment does not in any way exclude the Public Service Commission after due motion from the appropriate authority, from re-examining and reaching at a new decision as regards imposition of a new period for interdiction in the case of probable prosecution of disciplinary charges against the applicant.
In the circumstances I shall refrain from making any order as to the costs of the present case.
Sub judice decision partly annulled.
No order as to costs.