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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1987) 3 CLR 1247
1986 November 29
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
IOANNIS FAKKAS,
Applicant.
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE COUNCIL OF MINISTERS,
Respondent.
(Case No.80/80).
Natural Justice - Right to be heard- Termination in the public interest of applicant's services on account of his conduct during the 1974 coup d'etat-Opportunity given to applicant to answer statements taken against him in 1975, but not further statements relating to his same conduct taken in 1979- In the circumstances there was no contravention of the rules of natural justice.
Constitutional Law - Equality- Constitution, Art. 28-No room for complaint when each case in a category of cases is treated according to its particular facts.
Administrative Law - Due inquiry - Presumption of regularity.
The services of the applicant had been terminated initially, in the public interest, prior to the abortive coup d'etat in July 1974, but he was eventually, duly reinstated on the 15th May 1975, by a decision (No. 13.996) of the Council of Ministers.
On 31.1.80 the Council of Ministers decided, to terminate' applicant's services, in the public interest1 under the provisions of section 8 of the Pensions (Secondary School Masters) Laws, 1967-1979, as well as in the exercise of any other powers vested in the Council of Ministers in this respect.
As it appears from administrative records, it was alleged that the applicant, during the abortive coup d'etat in July 1974, was one of those who took over by force the premises of the Archbishopric in Nicosia and he was acting illegally as Secretary of the Archbishoprlc.
The grounds upon which the applicant seeks the annulment of the sub judice decision are: (a) Lack of due inquiry, because the personal file of the applicant was not before the Council of Ministers, and, even. if it was, its members did not have the opportunity to study it, (b) Contravention of the Rules of Natural Justice, because, though applicant had been afforded an opportunity to answer statements taken against him in 1975 relating to his said conduct during the Coup d'etat, he was not afforded such opportunity in respect of further statements taken in 1979 and relating to his same such conduct, (c) Discrimination, contrary to Art. 28 of the Constitution, inasmuch as others who have committed much more serious disciplinary offences were not dismissed from the public service, and (d) The services of the applicant could not have been terminated for what he had done during a period of time when he was not in the public service due to the earlier termination of his services in July 1974.
Held, dismissing the recourse: (1) In the absence of evidence to the contrary and in the light of the presumption of regularity the submission as regards lack of due inquiry has to be dismissed.
(2) As the applicant was afforded, in relation to the statements taken in 1975, an opportunity to put forward his own version, there has not occurred an actual contravention of the rules of natural justice due to the fact that the applicant was not informed of the contents of the statements taken in 1979, which, it seems, do not disclose any new sinister conduct by the applicant.
(3) There is no room for complaint about contravention of the principle of equality, which is safeguarded by Article 28 of the Constitution, when each case in a category of cases is treated according to its particular facts, including both its aggravating and extenuating aspects.
(4) The last submission of counsel for applicant has no merit. It was open to the Council to terminate the services of a schoolmaster who had clearly rallied to the side of those who carried the abortive coup d'etat.
Recourse dismissed.
No order as to costs.
Cases referred to:
Constodoulides and Others v. The Republic (1984) 3 C.L.R. 1297.
Recourse.
Recourse against the decision of the respondent to terminate applicant's services as a schoolmaster in the secondary education.
A. Markides, for the applicant.
A. Papasavvas, Senior Counsel of the Republic, for the respondent.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following judgment. By mean of the present recourse the applicant challenges the decision of the respondent Council of Ministers, which was communicated to him by letter dated the 22nd February 1980, and by means of which his services as a schoolmaster in secondary education were terminated.
The said decision (No. 18.769) was taken by the Council of Ministers on the 31st January 1980, in the public interest, under the provisions of section 8 of the Pensions (Secondary School Masters) Laws, 1967-1979, as well as in the exercise of any other powers vested in the Council of Ministers in this respect.
The sub judice decision was taken because the Council of Ministers had reached the conclusion that it would be detrimental to the educational service to allow the applicant to remain in it.
The services of the applicant had been terminated initially, in the public interest, prior to the abortive coup d' etat in July 1974, but he was, eventually, duty reinstated on the 15th May 1975, by a decision (No. 13.996) of the Council of Ministers.
Then there appears from administrative records, which were placed before the Court during the hearing of this case, that it was alleged that the applicant, during the abortive coup 'd etat in July 1974, was one of those who took over by force the premises of the Archbishopric in Nicosia and his services were terminated as complained of in this case.
The aforementioned decision of the Council of Ministers (No 18.769), of the 31st January 1980, as well as other practically identical decisions, which were reached on the same day and by means V of which there were terminated in the public interest the services of other public officials, were challenged by recourses filed by the applicant and other persons concerned and some of these recourses were heard and determined as test cases by the Full Bench of our Supreme Court (see Christodoulides and others v. The Republic, (1984) 3 C.L.R. 1297).
Consequently, in so far as the judgment in the Christodoulides case, supra, covers any of the issues raised in the present case, too, I am bound by, and endorse, the approach adopted by the Court on that occasion and I need not repeat in this judgment the relevant parts of the judgment in the ChrisodouIides case, which are to be deemed to be incorporated by reference in the present judgment.
I shall deal, therefore, solely with issues which were raised specifically only in this case by counsel for the applicant:
It has been contended by him that the Council of Ministers failed to carry out a due inquiry into the circumstances of the present case since there were not before the Council of Ministers, at the material time, the personal files of the applicant; and that even if they were before the Council of Ministers its members did not have the opportunity to study them on their own.
Counsel for the applicant, has indicated that he intended to adduce evidence in order to substantiate his above contentions and on one occasion he had available ex-Ministers George Tombazos and Chrysostomos Sophianos, as well as the ex-Secretary to the Council of Ministers Costas Cleanthous, and directions were given that their evidence was to be adduced, in the first instance, by way of affidavits.
As counsel for the applicant did not file any affidavit in order to substantiate his aforesaid contentions, I have to find, on the .basis of the presumption of regularity, that the personal files of the applicant were before the Council of Ministers at the material time and that the Council had the opportunity to study them before its sub judice decision; and, consequently, such decision cannot be annulled for lack of due inquiry.
Counsel for the applicant has further complained that, though when statements were taken from witnesses in 1975 regarding the conduct of the applicant during the coup d'etat the applicant was afforded an opportunity to answer their contents, further statements in relation to the same mailer were taken from witnesses in 1979 and, though the applicant was not afforded an opportunity to answer the contents of these later statements, such statements have been relied on in deciding to terminate his services.
Counsel for applicant submitted that, consequently, the sub judice decision was reached contrary to the rules of natural justice and of proper administration.
There appears clearly from the contents of the personal files of the applicant, which I have perused, that the statements taken in 1979, like those taken in 1975. related to the same conduct of the applicant in July 1974, when he was at the premises of the Archbishopric acting illegally as its Secretary and co-operating with those who had taken it over by force during the abortive coup d' etat in July 1974.
As the applicant was afforded, in relation to the statements taken in 1975, an opportunity to put forward his own version regarding his presence at the Archbishopric during the coup d' etat in July 1974, I am satisfied that in the present case there has not occurred an actual contravention of the rules of natural justice or of the principles of proper administration due to the fact that the applicant was not informed of the contents of the statements taken in 1979, which, it seems, do not disclose any new sinister conduct by the applicant.
Counsel for the applicant went on to argue, also, that Article 28 of the Constitution has been violated in the present case because the applicant is the victim of unequal treatment, inasmuch .as others who have committed much more serious disciplinary offences were not dismissed from the public service.
In my view there is no room for complaint about contravention of the principle of equality, which is safeguarded by Article 28 of the Constitution, when each case in a category of cases is treated according to its particular facts, including both its aggravating and extenuating aspects; and!, therefore, do not find this submission of counsel for the applicant well founded.
Lastly, I find no merit in the argument of counsel for the applicant that the services of his client could not have been terminated for what he had done during a period of time when he was not in the public service due to the earlier termination of his services in July 1974. 1 am of the view that it was open to the Council of Ministers to decide that there should not remain in the service a schoolmaster such as the applicant who had, clearly, rallied to the side of those who had carried out the abortive coup d' etat in July 1974. For all the foregoing reasons the present recourse fails and it is dismissed accordingly; but with no order as to its costs.
Recourse dismissed.
No order as to costs.