(1980) 3 CLR 258
[*258] 1980 May 30
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
DINOS KOUPEPIDES,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
(Case No. 124/77).
Public Officers-Disciplinary offences-Prison Service-Prison warder-Charged with disciplinary offence of contravention of his duties and obligations as a warder and public officer, under section 73(1)(b) of the Public Service Law, 1967 (Law 33/67), and not under section 7 of the Prison Discipline Law, Cap. 286 with a disciplinary offence committed in breach of any particular regulation made under section 6 of Cap. 286-Could be tried disciplinarily by the Public Service Commission and not by the Senior Superintendent of Prisons-Sections 5 and 87 of Law 33/67 and regulation 11 of the Prisons (Prison Service) Regulations.
The applicant, a prison warder in the Department of Prisons, was tried disciplinarily by the respondent Commission of the offence of contravention of his duties and obligations as a warder and public officer, under section 73(1)(b) of the Public Service Law, 1967, and was dismissed from the public service.
On the question whether the respondent Commission possessed competence to try disciplinarily the applicant, in view of the provisions of sections 5 and 87 of the Public Service Law, 1967, of sections 6 and 7 of the Prison Discipline Law, Cap. 286, and of regulation 11 of the Prisons (Prison Service) Regulations:
Held, (1) that as the applicant is a member of the public service (see the definitions of “public office”, “public officer”, and[*259]“public service” in section 2 of Law 33/67), the respondent Commission possessed competence to try him disciplinarily unless such competence was excluded by express provision in any other Law.
(2) That though the Commission does not possess competence in relation to disciplinary matters to which sections 6 and 7 of the Prison Discipline Law, Cap. 286 apply, these sections do not cover the whole ambit of disciplinary offences committed by members of the Prison Service but only those disciplinary offences which constitute breaches of Regulations made under section 6; that the applicant has been charged with the disciplinary offence of contravention of his duties and obligations as a warder and public officer, under section 73(l)(b) of Law 33/67 and not under section 7 of Cap. 286 with a disciplinary offence committed in breach of any particular regulation made under section 6 of Cap. 286; that, therefore, it is clear that he has not been dealt with disciplinarily by the respondent Commission in respect of an offence coming within the competence of the Senior Superintendent of Prisons, created by section 7 of Cap. 286, but in relation to an offence within the competence of the Commission under Law 33/67; that it was never the object of sections 6 and 7 of Cap. 286, or of the Regulations made thereunder, to exclude the disciplinary competence of any other organ in relation to offences not provided in the said Regulations (see regulation 11 (3)(b) of the Prisons (Prison Service) Regulations); and that, accordingly, the Commission was competent to try disciplinarily the applicant on the present occasion.
Order accordingly.
Cases referred to:
Bagdassarian v. The Electricity Authority of Cyprus (1968) 3 C.L.R. 736;
Nicolaou v. The Republic (1969) 3 C.L.R. 42 at p. 54;
Iosifv. The Cyprus Telecommunications Authority (1970) 3 C.L.R. 225 at p. 229;
Georghiades v. The Republic, (1970) 3 C.L.R. 257 at p. 263;
Poutros v. The Cyprus Telecommunications Authority (1970) 3 C.L.R. 281 at p. 286;
Theodorides v. Ploussiou (1976) 3 C.L.R. 319 at pp. 338, 352.[*260]
Recourse.
Recourse against the decision of the respondent whereby applicant was dismissed from the public service for disciplinary reasons.
E. Markidou (Mrs.), for the applicant.
G. Constantinou (Miss), for the respondent.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following decision. By means of the present recourse the applicant has challenged the decision of the respondent Commission by virtue of which he was dismissed from the public service, for disciplinary reasons, as from February 8, 1977; the said decision of the Commission was communicated to him by letter dated February 7, 1977.
At the material time the applicant was holding the post of Warder in the Department of Prisons.
At the outset of the proceedings in the present case it was decided to treat as a preliminary legal issue the objection of counsel for the applicant that the respondent Commission did not possess competence to try disciplinarily the applicant, in view of the provisions of sections 5 and 87 of the Public Service Law, 1967 (Law 33/67), of sections 6 and 7 of the Prison Discipline Law, Cap. 286, and of regulation 11 of the Prisons (Prison Service) Regulations (see Subsidiary Legislation of Cyprus, vol. I, p. 588).
Section 5 of Law 33/67 reads as follows:-
|
“Αρμοδιότητες της Επιτροπής. |
5. Πλην των περιπτώσεων περί των οποίων γίνεται ειδική πρόνοια εν τω παρόντι ή εν οιωδήποτε ετέρω νόμω ως προς οιονδήποτε θέμα εκτιθέμενον εν τω παρόντι άρθρω και τηρουμένων των διατάξεων του παρόντος ή οιουδήποτε ετέρου εκάστοτε εν ισχύϊ νόμου, αποτελεί καθήκον της Επιτροπής ο διορισμός, η επικύρωσις διορισμού, η ένταξις εις το μόνιμον προσωπικόν, η προαγωγή, η μετάθεσις, η απόσπασις και η αφυπηρέτησις δημοσίων υπαλλήλων και η επ' αυτών άσκησις πειθαρχικού ελέγχου περιλαμβανομένων της απολύσεως ή της απαλλαγής από των καθηκόντων αυτών. ” |
[*261]
“Functions of the Commission
5. Save where other express provision is made in this or any other law with respect to any matter set out in this section and subject to the provisions of this or any other law in force for the time being, it shall be the duty of the Commission to appoint, confirm, emplace on the permanent establishment, promote, transfer, second, retire and exercise disciplinary control over, including dismissal or removal from office of, public officers.”)
Section 87 of Law 33/67 reads as follows:-
|
“Επιφυλάξεις. |
87. Ουδέν των εν τω παρόντι Νόμω διαλαμβανομένων επηρεάζει τας διατάζεις αι οποίαι αφορώσιν εις διαγωγήν και πειθαρχίαν, πειθαρχικά αδικήματα και την δίωξιν και τιμωρίαν αυτών αναφορικώς προς υπαλλήλους ανήκοντας εις την υπηρεσίαν Φυλακών και αι οποίαι διαλαμβάνονται εις τον περί Πειθαρχίας Φυλακών Νόμον ή οιονδήποτε νόμον τροποποιούντα ή αντικαθιστώντα αυτόν και εις τους δυνάμει αυτού εκδοθέντας Κανονισμούς. ” |
|
Κεφ. 286 |
(“Savings.
87. Nothing in this Law contained shall affect the provisions relating to conduct and discipline, disciplinary offences and their trial and punishment in respect of officers belonging to the Prison Service and contained in the Prison Discipline Law or any law amending or substituted for the same and the Regulations made thereunder.”)
It is, also, useful to quote the following definitions from section 2 of Law 33/67:-
“'δημοσία θέσις' σημαίνει θέσιν εν τη Δημοσία Υπηρεσία·
'δημόσιος υπάλληλος' σημαίνει τον κατέχοντα δημοσίαν θέσιν είτε μονίμως είτε προσωρινώς είτε αναπληρωματικώς·
'δημοσία υπηρεσία' σημαίνει πάσαν υπαγομένην εις την Δημοκρατίαν υπηρεσίαν άλλην ή την δικαστικήν υπηρεσίαν της Δημοκρατίας ή υπηρεσίαν εις τας Ενόπλους Δυνάμεις της [*262] Δημοκρατίας ή τας Δυνάμεις Ασφαλείας της Δημοκρατίας ή υπηρεσίαν εις την Θέσιν του Γενικού Εισαγγελέως της Δημοκρατίας ή του Γενικού Ελεγκτού ή του Γενικού Λογιστού ή των Βοηθών αυτών ή υπηρεσίαν εν οιαδήποτε θέσει ως προς την οποίαν γίνεται διάφορος πρόνοια διά νόμου ή υπηρεσίαν υπό προσώπων των οποίων η αμοιβή υπολογίζεται επί ημερησίας βάσεως·”
(“‘public office’ means an office in the public service;
‘public officer’ means the holder, whether substantive or temporary or acting, of a public office;
‘public service’ means any service under the Republic other than the judicial service of the Republic or service in the Armed or Security Forces of the Republic or service in the office of Attorney-General of the Republic or Auditor-General or Accountant-General or their Deputies or service in any office in respect of which other provision is made by law or service by persons whose remuneration is calculated on a daily basis;”).
Sections 6 and 7 of Cap.286 read, as modified under Article 188 of the Constitution, as follows:-
“Regulations for discipline of officers.
6. The Council of Ministers may from time to time make Regulations for the duties and conduct of the officers and other persons employed in prisons, and for the maintenance of good order and discipline among such officers and other persons employed in prisons and prescribe punishments for breaches of such Regulations; and all Regulations, with the prescribed punishments, made under the provisions of this Law shall have the same effect and force as if they were enacted in this Law.
Governor of prison has power to try summarily offences against Regulations.
7. All offences for breaches of Regulations made under section 6 may be tried summarily by the Governor of the Prison in which, or with respect to which, the offence was alleged to have been committed; and the Governor of the Prison may impose the punishments applicable to such offences as prescribed by the Regulations.”[*263]
Since the enactment of Cap.286 the title of the “Governor of the Prison” has been changed into “Senior Superintendent of Prisons”.
Regulation 11 of the Prisons (Prison Service) Regulations makes provision about cases in which a member of the Prison Service “is charged with any offence mentioned in these regulations”. Such Regulations were made under section 6 of Cap. 266 in the 1949 Edition of the Laws of Cyprus, which is now section 6 of the aforementioned Cap.286.
From the relevant definitions in section 2 of Law 33/67, which have already been quoted in this Decision, it appears that the applicant is a member of the public service and, therefore, it would have to be held that the respondent Commission possessed, under section 5 of Law 33/67, competence to try disciplinarily the applicant, unless such competence was excluded by express provision in any other Law, such as Cap. 286 in the present instance, or by the special provision made by means of section 87 of Law 33/67.
Before proceeding any further, I think that it is proper, at this stage, to mention that the provisions of Article 125.1 of the Constitution, regarding the competence of the Public Service Commission created by Article 124 of the Constitution, are irrelevant for the purposes of deciding on the preliminary issue which I am now examining, because the Public Service Commission created by Law 33/67 is not the same organ as that which was set up pursuant to Article 124 of the Constitution (see, in this respect, Bagdassarian v. The Electricity Authority of Cyprus, (1968) 3 C.L.R. 736, Nicolaou v. The Republic, (1969) 3 C.L.R. 42, 54, Iosif v. The Cyprus Telecommunications Authority, (1970) 3 C.L.R. 225, 229, Georghiades v. The Republic (1970) 3 C.L.R. 257, 263, Poutros v. The Cyprus Telecommunications Authority, (1970) 3 C.L.R. 281, 286 and Theodorides v. Ploussiou, (1976) 3 C.L.R. 319, 338, 352).
Consequently, the question of the competence, on the present occasion, of the respondent Commission must be resolved only on the basis of sections 5 and 87 of Law 33/67, without reference to Article 125 of the Constitution.
It appears from the provisions of the said sections 5 and 87 that the Commission does not possess any competence in relation[*264]to a disciplinary offence committed by a member of the Prison Service for which provision is made in Cap. 286 or in the relevant Regulations made thereunder; therefore, the Commission does not possess competence in relation to disciplinary matters to which sections 6 and 7 of Cap. 286 relate.
These sections, however, do not cover the whole ambit of disciplinary offences committed by members of the Prison Service but only those disciplinary offences which constitute breaches of Regulations made under section 6.
In the present instance the applicant has been charged, asit appears from the material before me, with the disciplinary offence of contravention of his duties and obligations as a Warder and public officer, under section 73(1)(b) of Law 33/67, and not under section 7 of Cap. 286 with a disciplinary offence committed in breach of any particular regulation made under section 6 of the said Cap. 286.
It is, therefore, clear that he has not been dealt with disciplinarily by the respondent Commission in respect of an offence coming within the competence of the Senior Superintendent of Prisons, created by section 7 of Cap.286, but in relation to an offence within the competence of the Commission under Law 33/67.
It is pertinent, at this stage, to point out that it was never the object of sections 6 and 7 of Cap.286, or of the relevant Regulations which were made thereunder, to exclude the disciplinary competence of any other organ in relation to offences not provided in the said Regulations.
This view is supported, also, by the provisions of regulation 11 (3)(b) of the Prisons (Prison Service) Regulations which states that nothing in regulation 11 of the said Regulations shall affect “the liability of any Senior Warder or Warder to be dealt with under the Colonial Regulations in force for the time being.”; the Colonial Regulations were in force when Cyprus was a British Colony, prior to August 16, 1960, when it became an independent Republic; therefore, in the place of the process under the Colonial Regulations there must be substituted now the disciplinary process provided in Law 33/67.
For all the foregoing reasons I have reached the conclusion[*265]that the preliminary objection as regards the competence of the respondent Commission, which has been raised by counsel for the applicant, cannot succeed and that, as the Commission was competent to try disciplinarily the applicant on the present occasion, this case has to proceed to a hearing on its merits.
Order accordingly.
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