(forsthoff, p., triantafyllides and munir, jj.)
(May 24, October 15, 1962, March 6, 1963)
IBRAHIM NEDIM,
AND
THE TURKISH COMMUNAL CHAMBER, THROUGH ITS EXECUTIVE COMMITTEE.
(Case No. 77/62)
Time, Art. 146.3—Time runs from date of final decision.
Turkish Communal Chamber—Evcaf Office—Termination of services of employees of, for disciplinary reasons, subject to rules of natural justice.
Rules of natural justice—s. 14 of the Evcaf Law, 1949* and s.56(4) of the Evcaf and Vakfs Law, CAP. 337 to be applied subject to them.
The Applicant first entered the service of the Evcaf Office in 1938 as a Student Clerk, continuing in such service under various capacities until October, 1957, when he was promoted to a General Service Officer “on probation for at least two years” and sent in-charge of the Larnaca Office of the Evcaf.
On the 20th July, 1960, he was informed by the Director of Evcaf that in accordance with a decision of the High Council of Evcaf he was granted compulsory leave as from the 21st July, 1960, until further notice. Respondent stopped paying him his salary as from 1st April, 1961.
About two weeks later the Applicant was formally charged by the Police with nine charges involving misappropriation of funds belonging to Evcaf and in August, 1960, he was prosecuted accordingly before the District Court of Larnaca. He stood his trial in March, 1961, on two out of the nine charges, and was acquitted without being called upon to make his defence. In October, 1961, the Applicant was tried by the Assize Court of Larnaca on another of the nine charges originally preferred against him and was again acquitted in the same manner; the remaining six charges being subsequently withdrawn.
On the 14th November, 1961, the Applicant informed the Executive [*2] Committee of the Turkish Communal Chamber of his acquittal and the withdrawal of the rest of the charges, and stated that he was prepared to return to his duties, requesting, at the same time, the payment to him of the salary which had been withheld.
After some correspondence between the parties the Respondent informed the Applicant on the 27th December, 1961, that his appointment being “on probation for at least two years” he was not, at the time when the administration of Evcaf was transferred to the Turkish Communal Chamber, an officer in the permanent establishment of Evcaf, that as there was no existing post to go to the Applicant no substantive appointment would be offered to him in the Evcaf administration, and, further, that his association with the Evcaf was severed as from the 1st April, 1961. A cheque for his salary outstanding as at the 31st March, 1961, was sent to the Applicant which was accepted under protest.
It was the Applicant’s contention that the decision of the Respondent to dismiss him and/or not to appoint him, and the decision not to pay him his salaryup to 27.12.61, were null and void and of no effect whatsoever.
Held : (a) in view of the fact that the final decision of the Respondent on the Applicant’s future status with the Evcaf was not communicated to him until the 27th December, 1961, the period of 75 days prescribed in Art. 146.3 should run as from that date;
(b) the severence of the Applicant’s association with the Evcaf office, being intrinsically connected with disciplinary action against him, the rules of natural justice should have been applied (Nicolaos D. Haros and The Republic (Minister of the Interior), 4 R.S.C.C., p. 39, and (Stavros Rallis, and The Greek Communal Chamber (Director of Greek Education), 5 R.S.C.C., p. 11, affirmed).
PER CURIAM : Assuming the probationary appointment of the Applicant of the 1st November, 1957, as General Service Officer “for at least two years” continued until the 27th December, 1961, the Applicant would revert, as from the date of the termination of such probationary appointment, to the post of Rent Collector, to which he had been appointed in 1955.
Decision to terminate the services of Applicant declared null and void.
Cases referred to :
Andreas A. Marcoullides and The Republic (Public Service Commission), 3 R.S.C.C.
Nicolaos D. Haros and The Republic (Minister of the Interior), 4 R.S.C.C.
Nicos Kalisperas and The Republic (Public Service Commission) & another, 3 R.S.C.C.
Stavros Rallis, and The Greek Communal Chamber (Director of Greek Education), 5 R.S.C.C. [*3]
St. Pavlides for the Applicant.
H. Ali Riza for the Respondent.
Cur. adv. vult.
March, 6. The Judgment of the Court was read by:
FORSTHOFF, P.: The Court declares—
†The decision of the Respondent terminating the services of the Applicant with the Evcaf Office as communicated to the Applicant by letter dated the 27th December, 1961, is null and void and of no effect whatsoever.
The Applicant, who is about fifty-two years of age, originally entered the service of the Evcaf Office (which now comes under the Respondent) in 1938 as a Student Clerk with a salary of £2 per month. His salary was increased as from the 1st July, 1939, to £36 per annum and by letter dated the 10th July, 1941, his salary was further increased to £48 per annum as from the 1st July 1941. The Applicant was described in the letters granting him the aforesaid increases of salaries as being employed temporarily and on probation as a Clerk, Evcaf Agent, Nicosia.
By a letter dated the 15th June, 1942, the Applicant’s salary was raised to £60 per annum and the Applicant was transferred “temporarily and on probation to perform the duties of ‘Clerk’ to the Evcaf Agent, Limassol as from the 1st July, 1942”.
By a letter dated the 14th May, 1951, the Applicant was instructed to “act until further notice as Evcaf Agent for Limassol District in addition to” his “own duties as from the 14th May, 1951”. This letter contains detailed and specific instructions to the Applicant as to the manner in which he should perform his duties.
By a letter dated the 11th August, 1955 the Applicant was appointed as Rent Collector of Evcaf as from the 1st January, 1955, subject to the terms and conditions set out therein.
On the 19th July, 1956, as the result of the centralization in Nicosia of the work of Evcaf Agents the Applicant was transferred to Nicosia and was assigned duties in the Head Office in Nicosia.
By a letter dated the 25th October, 1957, the Applicant was informed that he had been promoted to be a General Service Officer “on probation for at least two years” and appointed for duty as officer in charge of the Larnaca branch of the Evcaf Office.[*4]
On the 20th July, 1960, a letter was addressed by the acting Director of Evcaf to the Applicant informing him that in accordance with a decision of the High Council of Evcaf taken on the same day he was given compulsory leave of absence as from the 21st July, 1960, until further notice. By that letter he was required to close the accounts and to make a lodgment to the bank of all sums (whether received from collections or money advanced to him by the office) and to deliver all documents belonging to the office to Mr. Beha Kiani, General Service Clerk.
About two weeks after the receipt of the letter of the 20th July, 1960, the1 Applicant was called to the police station and formally charged with nine offences involving the misappropriation of funds belonging to Evcaf and in August, 1960, nine separate charges were preferred against him in the District Court of Larnaca.
On the 16th March, 1961, the Applicant was tried before a single Judge of the District Court of Larnaca in respect of two out of the nine charges against him and he was acquitted on both such charges without being called upon to make his defence.
The Respondent stopped paying any salary to the Applicant as from the 1st April, 1961.
After his acquittal on the aforesaid charges the Applicant addressed a letter to the Director of Evcaf dated the 30th May, 1961, referring to his acquittal and asking for a decision regarding his continued employment and the payment of his salary.
In answer to the letter of the 30th May, 1961, the Applicant received a letter from the Director of Evcaf dated the 23rd June, 1961, stating that police enquiries and legal proceedings were still pending and that upon the completion of such enquiries and proceedings the Applicant should submit an application to the Executive Committee of the Turkish Communal Chamber accompanied by a certificate stating the outcome of such proceedings.
On the 27th October, 1961, the Applicant was tried by the Assize Court of Larnaca in respect of another of the nine charges originally preferred against him and in this case also the Applicant was not called upon to make his defence and was therefore discharged and the case against him dismissed. A certified copy of the observations made by the Assize Court on the 27th October, 1961, in discharging the accused, was produced.
Subsequently the remaining six out of the nine charges preferred against the Applicant were withdrawn. [*5]
As a result of his acquittal before the Assize Court of Larnaca and the subsequent withdrawal of the remaining six charges against him, the Applicant wrote a letter to the Executive Committee of the Turkish Communal Chamber dated the 14th November, 1961, referring to his acquittal and the withdrawal of the remaining charges and stating that he was prepared to return to his duties and requesting the payment to him of the salary which had been withheld.
The Respondent replied by a letter dated the 1st December, 1961, in which it is stated that his application came up before the Executive Committee of the Turkish Communal Chamber at its meeting held on the 27th November, 1961, that his position was still being considered and that a final decision would be communicated to him later.
The Respondent addressed a further letter to the Applicant dated the 27th December, 1961, with further reference to his application, in which it is stated that at the time when the administration of Evcaf was transferred to the Turkish Communal Chamber the Applicant was not an officer in the permanent establishment of the Evcaf Office and it was pointed out that the Applicant’s appointment was made on the basis of his “serving on probation for at least two years”. It is further stated in that letter that, due to the fact that there is no existing post to be given to the Applicant, it has not been found proper to give the Applicant a substantive appointment in the Evcaf administration. The Applicant is also informed by the same letter that his association with the Evcaf Office had been finally severed as from the 1st April, 1961, (when the payment of salary to him had ceased) and that, therefore, his salary would only be paid up to the 31st March,1961. A cheque in respect of the outstanding salary up to the 31st March, 1961, was accordingly enclosed with the said letter of the 27th December, 1961.
A letter dated the 26th February, 1962, was addressed by Applicant’s counsel to the Respondent, by which the cheque enclosed with the letter of the 27th December, 1961, was accepted under protest, and in which the Applicant asks the Respondent to reconsider the matter.
The Application in this Case was filed on the 10th March, 1962, and contains the following motions for relief:-
“(a) Declaration that the decision and/or act of Respondents to dismiss Applicant from and/or not to appoint Applicant to the post of Officer in Charge and General Service Clerk and/or to an appropriate post in the office or department of Evcaf is null and void and of no effect whatsoever.
(b) Declaration that the decision and/or act of Respondents [*6] not to pay Applicant his salaries from 1/4/61 till 27/12/61 is null and void and of no effect whatsoever”.
The Opposition was filed on the 26th March, 1962.
A Presentation of the Case, under rule 9(2) of the Court’s Rules, took place before a Judge of the Court on the 24th May, 1962.
The hearing of the Case, took place on the 15th October, 1962.
The issues to be determined in this Case are as follows :-
(1) Whether, for the purposes of reckoning the period of seventy-five days provided for in paragraph 3 of Article 146 of the Constitution, the termination of the services of the Applicant should be regarded as having taken place on the 1st April, 1961, as alleged by the Respondent, or whether it should be regarded as having taken place on the 27th December, 1961, the date on which the letter in question was written, as alleged by the Applicant, and whether or not this Application should consequently be regarded as being out of time;
(2) whether the probationary appointment of the Applicant as a General Service Officer, which by the letter of appointment in question was stated to be for a period of “at least two years”, continued as a probationary appointment after the expiration of the period of two years, i.e. whether on the 27th December, 1961, when the letter in question was written, the Applicant was still serving on probation or whether he should be regarded, by implication as having been confirmed in the office in question and be regarded as substantively holding the office of a General Service Officer on the said date;
(3) alternatively, should the probationary appointment of the Applicant as a General Service Officer be held to have continued until the 27th December, 1961, whether the Applicant, on the termination of such probationary appointment, reverted to the office of Rent Collector to which he was appointed in 1955 and whether such office was held by him substantively;
(4) if it is held that the Applicant held a substantive appointment, whether the provisions of the second sentence of section 14 of CAP 259*, giving the Respondent, [*7] as the successor of the Delegates of Evcaf in this respect, the sole discretion to dismiss certain officers, are at present applicable to the Applicant -
(a) in respect of his appointment as Rent Collector in 1955,
(b) in respect of his appointment as General Service Officer in 1957,
as submitted by the Respondent, or whether, as submitted by the Applicant, the provisions of subsection (4) of section 56 of CAP 337* are applicable both as a matter of law and as a matter of natural justice.
Inasmuch as the Respondent had informed the Applicant by its letter of the 1st December, 1961, that the Applicant’s position was still being considered by the Respondent and that a “final decision” would be communicated to him later, and as the next communication from the Respondent, which is presumed to be the “final decision” envisaged by the aforesaid letter of the 1st December, 1961, was not written till the 27th December, 1961, the Court is of the opinion that the period of seventy-five days prescribed by paragraph 3 of Article 146 began to run from the 27th December, 1961, and this Application has, therefore, been made within the prescribed period.
It is now convenient to deal with Issue (4).
The letter addressed to the Applicant by the Director of Evcaf dated the 20th July, 1960, in which the Applicant was informed that he had been given compulsory leave from the following day and until further notice and in which he was required to hand over to the General Service Clerk, as well as the subsequent correspondence exchanged between the Applicant and the Respondent from the 30th May to the 1st December, 1961, clearly indicate that the granting of such compulsory leave to the Applicant and the subsequent stopping of his salary altogether from the 1st April, 1961, was the result of, and was connected with, the nine alleged offences, involving the misappropriation of Evcaf funds, with which the Applicant had been charged by the police about two weeks after the receipt by him of the letter of the 20th July, 1960.
Although, by the granting of compulsory leave to the Applicant until further notice, and by stopping his salary [*8] altogether as from the 1st April, 1961, action had been taken of clearly a disciplinary nature, it appears that subsequently the Respondent decided not to proceed with the disciplinary action as such but to take the action communicated to the Applicant in the Respondent’s letter of the 27th December, 1961, namely, to inform him that as “there is no existing post to be given” to him his “substantive appointment to the Evcaf administration has not been found proper”. The last paragraph of the said letter, however, affirms that the Applicant’s “association with the Evcaf Office has been finally severed from the 1.4.1961” when his salary was completely stopped.
It is true that the second paragraph of the Respondent’s said letter of the 27th December, 1961, does not appear to base the Respondent’s decision on disciplinary grounds, but the last paragraph thereof, by referring to the final severence of the Applicant’s association with the Evcaf Office as from the 1st April, 1961, when his salary was completely stopped, indicates, especially in the light of the sequence of events till then, that such severence, inasmuch as it took place with effect from the 1st April, 1961, was intrinsically connected with the previous disciplinary action which, as stated above, had already been taken; had it not been for the alleged misconduct in office of the Applicant one would have expected that, in the ordinary course of events, the Respondent would have found it “proper” to continue employing an officer with service as long as Applicant’s in some suitable capacity.
Whether or not it was the provisions of section 14 of the Evcaf Law, 1949 (No. 9 of 1949, which is CAP 259* in the 1949 Revised Edition of the Laws of Cyprus) which were applicable to the Applicant, as submitted by counsel for Respondent, or the provisions of sub-section (4) of section 56 of the Evcaf and Vakfs Law, 1955 (No. 52 of 1955 which is CAP 337† in the 1959 Revised Edition of the Laws of Cyprus) which applied to the Applicant, as submitted by counsel for Applicant, the fact remains that, with the coming into force of the Constitution, legislative or other provisions for the dismissal, for disciplinary reasons, of officers holding public office under the Republic or organs in the Republic, including the termination of a probationary appointment on grounds of misconduct (assuming that the Applicant was still on probation) must be applied subject to the rules of natural justice (vide Stavros Rallis and The Greek Communal Chamber (Director of Greek Education), 5 R.S.C.C. p. 11).
It is also significant to note that the practice in the public service in the past had been that, before the termination or extension of a probationary appointment, the officer concerned [*9] was notified of the intention of the termination or extension and was given an opportunity to submit any representations he might wish to offer (vide General Order II/1.30).
This Court on many previous occasions has stressed the necessity for complying with the rules of natural justice in matters such as these, and in its Judgment in the case of Nicolaos D. Haros and The Republic of Cyprus (Minister of the Interior), 4 R.S.C.C., letter D p. 44, the Court has stated as follows:-
“Concerning the allegation that the provisions of regulation 20 are contrary to the rules of natural justice the Court is of the opinion that the said rules, which also under Article 12 are made applicable to offences in general, should be adhered to in all cases of disciplinary control in the domain of public law (vide Andreas A. Marcoullides and The Republic of Cyprus (Public Service Commission), 3 R.S.C.C., p. 30 at p. 35, Nicos Kalisperas and The Republic of Cyprus (Public Service Commission) & another, 3 R.S.C.C., p. 146 at p. 151) and that, therefore, the provisions of regulation 20, should be applied subject to the aforesaid rules”.
Furthermore, express provision to the above effect is to be found in section 35 of the Turkish Communal Chamber Public Service Law (Law No. 2/1960 published in Supplement No. 1 * to the official Gazette of the 5th January, 1961) which sets up a Judicial Committee to deal with such matters and which in that respect must be deemed to have superseded previous legislative provisions.
In the light of the above, the Court is of the opinion, in the circumstances of this Case, that the severence of the Applicant’s association with the Evcaf Office, as from the 1st April, 1961, could only be brought about by applying the appropriate procedure for disciplinary matters. The termination of the services of the Applicant, in the manner effected, has, therefore, to be declared null and void.
Counsel for Respondent informed the Court that in taking the action which it did in this matter, and in not finalizing the matter by way of disciplinary proceedings, the Respondent was acting in the belief that in so doing it was taking a course which was more beneficial to the Applicant. Indeed, both at the Presentation and the hearing of this Case, counsel for Respondent went so far as to reserve Respondent’s right to take disciplinary proceedings against the Applicant, if necessary, after the conclusion of this recourse.
The Court is of the opinion, however, that once it had [*10] been decided to embark upon what was, in effect, disciplinary action by which the applicant had been detrimentally affected, by being granted compulsory leave until further notice and later by having his salary stopped completely, the Respondent was bound to finalize, in one way or the other, such disciplinary action and in so doing to comply with the appropriate procedure.
It is now, therefore, up to the Respondent to reconsider, in the light of this Judgment, the whole matter as also requested by the Applicant in the letter written on his behalf on the 26th February, 1962.
In view of the above conclusions of the Court it is not necessary for the Court to determine specifically any of the remaining issues in this Case, though it is useful to observe, in connection with Issues (2) and (3), as follows:
It has been submitted on behalf of the Respondent that the Applicant’s probationary appointment on promotion to the post of General Service Officer, which was made with effect from the 1st November, 1957, was “for at least two years”. The aforesaid minimum period of two years expired on the 31st October, 1959. Even assuming, for the purposes of this Judgment only, in the Respondent’s favour, that the probationary period in question continued thereafter till the 27th December, 1961, then, in the opinion of the Court it should be borne in mind that upon the termination of such probationary appointment the Applicant would revert to the post of Rent Collector to which he had been appointed in 1955 and in which post he had been serving with effect from the 1st January, 1955, when he was promoted, on probation, in 1957 to the aforesaid post of General Service Officer. Though it is not expressly stated in the letter of the list August, 1955, appointing the Applicant to the post of Rent Collector, whether the Applicant was being appointed temporarily or on probation or whether he was being given permanent appointment, the office in question had, nevertheless, been made pensionable as from the 14th April, 1955, by Notification No.252 which was published in Supplement No. 3 to the Gazette of the 14th April, 1955.
Concerning claim (b) of the motion for relief, the Court is of the opinion that this claim is nothing more than a partial repetition of, and is, therefore, included in, claim (a), because, obviously, no separate decision to the effect described in the said claim (b) has been taken and the factual discontinuation of the payment of salary to the Applicant was a consequence of the cause of action which has been declared null and void. The question, therefore, of the salary of the Applicant, which is involved in claim (b), will also have to be reconsidered by the Respondent as one aspect of the whole matter.
For the Reasons given above the Court declares as stated in The Order.