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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1987) 3 CLR 1413
1987 October 22
[LORIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
GEORGHIOS MAGIDES,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTER OF LABOUR AND SOCIAL INSURANCE,
Respondents.
(Case No. 241/84).
Recourse for annulment-Practice-Amendment-Of date given in the recourse as being the date of the sub judice decision-Mistake obvious-Application for amendment granted-Paralimni Bus Co. Ltd. v. Republic (1967) 3 C.L.R. 559 distinguished-The amendment disposed of a preliminary objection that recourse was out of time
Executory act-Hierarchical recourse to Minister of Labour and Social Insurance pursuant to section 78 of the Social Insurance Law 1980, Law No. 41/80, as amended-Relevant decision of Minister is of an executory nature.
Findings of fact by Administration-Judicial control-Principles applicable.
During the period 1.5.82 - 30.11.82 the applicant was drawing invalidity pension from the Social Insurance Fund.
Following investigation, the claims examiner decided that during the aforesaid period the applicant was in fact working and, consequently, requested by letter dated 9.1.84 the applicant to refund the amount, which he received for such period and return his medical card for free medical attendance.
The applicant challenged the aforesaid decision by means of a hierarchical recourse to the Minister of Labour and Social Insurance.
By letter dated 28.2.84 the Minister dismissed the recourse. Hence the present recourse, in which, by mistake, the date of the decision of the Minister is stated to be 9.1.84, i.e. the day of the letters communicating the decision of the claims officer. The applicant applied for leave to amend the date.
Held, dismissing the recourse (1) It is obvious that the sub judice decision was taken on 28.2.84. It could not have been communicated on 9.1.84. The application for amendment was, therefore, granted (Paralimni Bus Co. Ltd. v. Republic (1967) 3 C.L.R. 559 distinguished). The amendment disposes the preliminary objection that the recourse is out of time.
(2) The decision of the Minister was issued upon a hierarchical recourse filed in virtue of section 78 of the Social Insurance Law 41/80 as amended. It follows that it is of an executory nature (Tsouloftas v. The Republic (1983) 3 C.L.R. 426).
(3) In the light of the material before him, the sub judice decision was reasonably open to the Minister.
(4) The submission that the Minister did not give to the applicant the opportunity of being heard cannot be accepted because his views, which amounted to blunt denial that he was working during the period in question, were in fact forwarded to the claims officers and generally to the Social Insurance Department.
Recourse dismissed with costs.
Cases referred to:
Paralimni Bus Co. Ltd. v. Republic (1967) 3 C.L.R. 559;
Tsouloftas v. Republic (1983) 3 C.L.R. 426.
Recourse.
Recourse against the confirmation by the respondent on the hierarchical recourse of applicant against the decision of the Claims Officer whereby applicant was asked to refund the amount of £704.87 cent being invalidity pension received by applicant during the period of 1.5.82-30.11.82 as he was working during the aforesaid period.
E. Serghides, for the applicant.
A. Papasavvas, Senior Counsel of the Republic, for the respondent
Cur. adv. vult.
LORIS J. read the following judgment. The applicant, an ex Police Constable, applied on 22.4.81 (vide red 1 in Exh. 1) to the Department of Social Insurance (Ministry of Labour and Social Insurance) praying for invalidity pension as allegedly he was. unable to work; he was referred by the Claims Examiner to the Medical Board for opinion; the Medical Board having examined the applicant decided that the applicant will remain incapable for work for a period f three months recommending re-examination of the applicant at the end of such period. At the end of the first period aforesaid, the applicant was again re-examined by the Medical Board arid he was again found by the Board to be incapable for work for another period of three months; the Board recommended again re-examination of the applicant at the end of this second period (vide red 25 in exh. 1). The applicant was examined by the Board for a third time on 4.5.82 and he was found incapable for work for a further period of six months. (Vide reds 26-29 in exh. 1). The applicant was examined by the Board for a third time on 4.5.82 and he was found incapable for work for a further period of six months. (Vide red 26-29 in exh. 1). The Board in their report (vide red 28 in exh. 1) recorded that he was suffering from persistent insomnia, chest discomfort, lack of interest and depression and stated that he will be incapable for work for a further period of six months adding: «but a statement cannot be made now whether after that period claimant will or will not be incapable for work.»
Pursuant to the above the Social Insurance Department granted to the applicant invalidity pension originally for a period of three months followed by a second period of three months thereafter, and finally for a further period of six months; this last period was running from 1.4.82-30.11.82. The appropriate invalidity pension was paid to the applicant for all the aforesaid periods.
As the applicant was not receiving pension after the 1st December1982, he addressed a letter, through his advocate, on 10.3.1983 (vide appendix 1 attached to the recourse) to the Director of Social Insurance inquiring of the reasons for nonpayment of such pension after that period. A reply by the Social Insurance Department set out in letter dated 28.4.83 (Appendix 2 attached to the Recourse) was forwarded to applicant's counsel, stating the applied for, reasons.
Counsel on behalf of the applicant addressed another letter on this subject, dated 24.5.83, to the Director of Social Insurance (vide appendix 3 attached to the recourse) and in reply thereto a letter dated 7.7.83 (vide appendix 4 attached to the recourse) was addressed on behalf of the Director to counsel acting for the applicant. We shall have the opportunity of referring to such correspondence later on in the present judgment.
Finally in consequence of the aforesaid correspondence the Claims Examiner of the Social Insurance Department communicated his decision to the applicant which is set out in two letters of 9.1.84 (vide appendices 5 and 6 attached to the recourse) whereby he was asked, inter alia.
(a) to refund to the Social Insurance Department the amount of £704.87 cent, being the invalidity pension he received irregularly for the period of 1.5.82-30.11.82 as he was working during the aforesaid period, and
(b) to return to the Social Insurance Department his medical card for free medical attendance.
The applicant who received the aforesaid decision of the Claims Examiner a couple of days after the 9.1.84, filed pursuant to s. 78(1) of the Social Insurance Law 1980 (Law 41/80 as amended) a hierarchical recourse to the Minister of Labour and Social Insurance on 24.1.84 (vide appendix 7 attached to the recourse).
The Minister's decision on the hierarchical recourse is set out in a letter dated 282.84 which is appendix 8 attached to the recourse.
The applicant by means of the present recourse impugns the aforesaid decision of the Minister in the hierarchical recourse aforesaid.
I consider it pertinent at this stage to mention that prayer A of this recourse was originally referring to the date of the decision of the Claims Examiner which is theV9th January 1984. Some time after the filing of the recourse counsel on behalf of the applicant applied in writing for an amendment with a view to altering the date and inserting the actual date of the decision of the Minister given on the hierarchical recourse which is the 28th February 1984; there is no dispute about it and learned counsel appearing for the respondent conceded that the date should be the 28.2.84 and consented to the application for amendment. Of course independently of the consent of counsel for the respondent I was duty-bound to examine the application for amendment as it touched the time limit envisaged by Article 146.3.
Having considered the affidavit in support of the application for amendment and having heard argument by counsel in favour of the amendment (counsel for respondent as already stated just confined himself in consenting to it) I directed my mind to the authorities. In spite of the fact that the case of Paralimni Bus Co. Ltd. v. The Republic (1967) 3. C.L.R. 559 (decided in the first instance by the learned President of this Court) was militating against the granting o the amendment, I arrived at the conclusion that the said case must be distinguished' from the facts of the present one; in the present instance obviously the recourse was directed against the decision given in the hierarchical recourse by the Minister; and it is apparent from the material in the relevant administrative files which are before me as well as from the relevant extracts attached to the recourse and the opposition that such decision (set out in Appendix 8) is dated 28.2..84 and could not therefore be communicated to the applicant on 9.1.84 as it was stated in prayer A of the Recourse, inserted therein obviously through clerical error.
For all the above reasons I have allowed the amendment on 22.3.85 after hearing the relevant application which was filed as early as the 12th November, 1984. I may add at this stage that the amendment as above disposes of the first preliminary objection of the respondent to the recourse to the effect that the recourse was filed out of time.
As regards the second preliminary objection to the effect that the sub-judice decision is not a decision of an executory nature, I feel duty-bound to repeat that the, present recourse is directed against the decision of the Minister given on a hierarchical recourse to him pursuant to the provisions of s. 78 of Law 41/80 and the decision of the Minister in a hierarchical recourse is of an executory character (vide Tsouloftas v. Republic (1983) 3 C.L.R. 426).
Now, on the merits of the case; the gist of the recourse is whether the applicant was working from the 1.5.82 up to 30.11.82, a period during which he was receiving an invalidity pension.
It is clear from the material before me that the Social Insurance Department held a thorough investigation upon ii formation received that the applicant was working at least from the 1.5.82 onwards as an employee of the Smoke Repack Co. Ltd., of Limassol. As a result of this investigation at least five statements were taken, inter alia, from several persons by an appropriate Officer of the Social Insurance Department.
These statements appear in the administrative file which is exh. 2 before me. (Vide reds 2- 11 in exh. 2).
The statements were taken from the following persons:
(a) Christakis Christodoulides (vide red 10-11 in exh. 2), the person who took over as the director of Smoke Repack Co. Ltd., as early as March 1982 and stayed with the company up to approximately the end of May, 1982;
(b) Alexandros Stylianides of Limassol, (vide reds 2 and 3 in exh. 2); he was appointed on 1.4.82 as a person in charge of the production of the factory of the company and worked with the company up to 13.9.82 when the factory closed down temporarily.
(c) Christodoulos Trimikliniotis (vide red 4 in exh. 2); he is a Customs Officer and assumed duties at the factory in April 1982 as responsible officer on behalf of Customs for Customs supervision of the repacking of cigarettes in the factory of the Company.
(d) Savvas Georghiou (vide reds 5 and 6 in exh. 2); a Trade Union Organizer who was visiting the factory for purposes of solving problems arising between the workers and the management of the factory.
(e) Spyros Charalambous, (vide reds 7, 8 and 9 of exh. 2), an unemployed graduate of a University, who was appointed as a foreman in the factory as early as 1.4.82 and worked thereto throughout the period in question.
From the material before me it is abundantly clear that the Claims Examiner had inter alia these statements before him when examining this case and before giving his decision on 9.1.84 (vide appendices 5 and 6 attached to the recourse).
It is also apparent that the aforesaid material, including the statements in exh. 2, were before the Minister of Labour and Social Insurance when he was examining the hierearchical recourse under consideration. I hold the view that the statements of the five persons referred to above and in particular the statement of Christakis Christodoulides, ((a) above) the person who appointed the applicant at a salary of £200 on behalf of the company to work as a security officer of the factory, and the statement of Spyros Charalambus (reds 7. 8 and 9 of exh.2) prove beyond any doubt that the applicant was working for the period in question as an employee of the Company and he was being paid a salary for such services.
In the circumstances it was reasonably open to the Minister to reach his decision in the hierarchical recourse which is being impugned by the present recourse.
It was argued by counsel of the applicant in his written address that the Minister did not call upon the applicant before reaching at the sub-judice decision in order to have his views.
In this connection it must be noted that the views of the applicant were forwarded by counsel acting on his behalf to the Claims Examiner and generally to the Social Insurance Department on several occasions prior to the issue of the sub- judice decision.
Applicant's stand was always to the effect that he was never working throughout the period of 1.5.82 - 30.11.82 with the Smoke Repack Co. Ltd., (vide inter alia, letter addressed on his behalf by his counsel on 24.5.83, appendix 3 attached to the opposition.) Thus the applicant had the opportunity of voicing his views prior to the sub-judice decision; and his views amounted always to a blunt denial that he was working in the factory of the aforesaid company, whilst the material in Ex. 2 indicates clearly that he was so employed and he was being paid for such an employment during the period for which he was drawing an invalidity pension from the Social Insurance Fund.
In the result present recourse is doomed to failure and is here by dismissed; applicant to pay the costs of the respondent, which will be assessed by the Registrar.
Recourse dismissed with
costs against applicant.