(1982) 3 CLR 81
[*81] 1982 January 8
[HADJIANASTASSIOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
MICHALAKIS KOMODIKIS,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTER OF INTERIOR,
Respondent.
(Case No. 142/80).
Natural Justice—Principles of—Right to be heard—Promotions in. the Police Force—Applicant recommended for promotion by Selection Board—Not promoted by respondent Minister because of doubts expressed by Central Information Service regarding his loyalty and devotion to duty—Grounds upon which said doubts were based and existence of suck doubts not brought to his notice and not given an opportunity to be heard in relation thereto—Course adopted contrary to the rules of natural justice through the failure to afford applicant a hearing—Sub judice decision annulled.
The applicant, a Police Officer, was a candidate for promotion to the rank of Chief Inspector; and though he was recommended for promotion by his superior and the appropriate Selection Committee the respondent Minister of Interior promoted a number of other candidates and turned down the recommendation of the Selection Committee with regard to the applicant, because there were certain doubts expressed by the Central Information Service as to his loyalty and devotion to duty, It was common, ground that neither the grounds upon which the Minister's doubts regarding applicant's loyalty were investigated nor was the existence of such doubts brought to the attention of the applicant; and applicant was not given a chance to be heard in relation to the accusations against him. [*82]
Upon a recourse by the applicant:
Held, that since the respondent Minister of Interior has failed to follow the rules of natural justice and afford to the applicant a hearing the sub judice promotions must be annulled.
Sub judice promotions annulled.
Cases referred to:
Tzavelas v. The Republic (1975) 3 C.L.R. 490;
Menelaou v. The Republic (1980) 3 C.L.R. 467;
Koudounas v. The Republic (1981) 3 C.L.R. 46;
Charalambous v. Minister of Interior and Another (1981) 3 C.L.R. 203;
HjiGeorghiou v. The Republic (1981) 3 C.L.R. 587.
Recourse.
Recourse against the decision of the respondent to promote the interested parties to the post of Chief Inspector, in preference and instead of the applicant.
A. Magos, for the applicant.
Cl. Antoniades, Senior Counsel of the Republic, for the respondent.
Cur. adv. vult.
HADJIANASTASSIOU J. read the following judgment. In the present proceedings, under Article 146 of the Constitution, the applicant, Michalis Komodikis, a police officer, seeks a declaration of this Court (a) that the decision of the Minister of the Interior not to promote him to the post of Chief Inspector is null and void and of no effect whatsoever; and (b) that the decision of the respondent to promote the nine interested parties to the post of Chief Inspector is null and void and of no effect whatsoever.
THE FACTS:
Because there were vacancies in the police hierarchy, the Chief of Police, in accordance with his powers under regulation 4 of the Police (Promotion) Regulations, in April, 1979, appointed a selection committee for the purpose of making recommendations for the promotion to the post of Chief Inspector. Indeed, the applicant was one of the officers strongly recommended for promotion by his superior, and the [*83] selection committee, having taken into consideration the years of service and other recommendations, selected the applicant as being one of the best candidates, and was placed sixth in line.
The Chief of Police, having gone into the results of the selection committee, and having read everything about each individual candidate, in accordance with regulation 13(2) of the Police Law, Cap. 285, selected and forwarded all the names of the successful candidates to the Minister of the Interior who finally promoted a number of candidates, but turned down the recommendation of the selection committee with regard to the applicant in the present case. The reason why the applicant was rejected was the fact that there were certain doubts expressed by the Chief of KYP as to his loyalty and devotion to duty. Indeed, it appears from the facts of this case that the Minister of the Interior had taken into consideration also a legal opinion prepared by the Deputy Attorney-General, Mr. Loucaides.
With that in mind, there is no doubt that neither the grounds upon which the Minister's doubts regarding the applicant's loyalty were investigated, nor was the existence of such doubts brought to the attention of the applicant. Indeed, the applicant was not given a chance to be heard in relation to such damning accusations against him, and particularly when he was chosen by the selection committee as being the 6th in line out of a great number of police officers.
Be that as it may, counsel for the applicant in support of his legal grounds, ably argued that the Chief of Police wrongly relied on the statement of the Chief of KYP; and that wrongly, in the absence of any other evidence, the Minister did not investigate fully the whole matter and did not afford him the opportunity of putting his case forward. Finally, counsel invited this Court to accept the view that the acts and/or decision of the Minister in substance and in effect did not afford him the right to be heard in accordance with the well-established principles of natural justice. Counsel relies on Tzavellas v. The Republic, (1975) 3 C.L.R. 490, and Savvas Menelaou v. The Republic, (1980) 3 C.L.R. 467, and Christos Koudounas v. The Republic, (1981) 3 C.L.R. 46.
On the contrary, counsel for the respondent Minister, argued equally ably and pointed out that the only legal point which [*84] one has to deal with is whether the Chief of Police in examining the case of each individual has violated the principles of natural justice. Counsel further pointed out that what is important is whether the accusation made by the Chief of KYP is in effect a violation of the Principles of Natural Justice. Counsel invited this Court—having regard to exhibit 2—to decide whether the contents of such exhibit create an offence which is contrary to the provisions of Natural Justice. He further stated that he adopted the legal stand taken by the Deputy Attorney-General.
I have considered very carefully the arguments of both counsel, and indeed, the most important point raised in this case is whether the administration respected the Rules of Law which are intrinsically right and just and which have been formulated for the protection of the average individual. Indeed, if people are to feel a sense of obligation to the law, then the law must correspond with what they consider to be right and just, or, at any rate, must not unduly divert from it In other words, it must correspond as near as may be with justice.
In a recent case, in Christos Koudounas v. The Republic, (1981) 3 C.L.R. 46, the report from the Central Information Service was obtained and was put before the Commission. From the contents of that report, it transpired that two officers were not loyal and did not show respect to the law. In delivering the Judgment of the Court, in this case, and having quoted the provisions of s.73 of the Public Service Law, 33/67, I had this to say:-
"The Commission has violated the Rules of Natural Justice…… (and) in any event, and in spite of the fact that the Commission had before it the report of KYP, viz. that the applicant was not a loyal person, and that he does not respect the law, he was not prosecuted criminally or disciplinarily regarding the alleged accusations, and he was not given the chance by the Commission either orally or in writing to repudiate such allegations by presenting his own version also.
In the light of the judicial pronouncements I have quoted earlier, and because the principles of natural justice have been violated once the applicant has not been given the chance to be heard, I would accept the submission of counsel [*85] on this point (See Savvas Menelaou v. The Republic, (1980) 3 C.L.R. 467 and Charalambos Savva v. The Republic, (Revisional Appeal No. 210 not yet reported, on this very issue.)……..
For the reasons I have given at length, and because the Commission has not only contravened the Rules of Natural Justice but also Article 28 of the Constitution by not affording equal treatment to the applicant and the interested parties, and by treating the interested parties more favourably without sufficient grounds justifying such a course, I would annul the decision of the Commission".
See also Demetrios Chr. Tzavellas and Another through the Minister of Interior and the Commander of Police, (1975) 3 C.L.R. 490 at pp. 502, 505; see further the Conclusions from Case Law of the Greek Council of State, 1929-1959 at p. 356.
In Yiannakis Charalambous v. 1. The Minister of Interior 2. The Chief of Police, (1981) 3 C.L.R. 203, in dealing with the case of the applicant, I had this to say at pp. 210, 211:-
"Having considered very carefully the facts and circumstances of this case, and having listened to the addresses of counsel, I think I ought to put on record that the promotions of police officers are governed by the Police Law, Cap. 285, as amended by a number of laws and particularly by Laws 19/60, 21/64 and 29/64. There is no doubt that the applicant falls within the provisions of section 13(1) of Cap. 285, as well as the Regulations governing promotions which are made in accordance with section 10 of the Law, and the general Regulations which provide for disciplinary offences and the conduct of the members of the Police Force. Once the Regulations for disciplinary offences are still in force, and once the administration was believing that the applicant has committed offences, it was indeed for the appropriate authority to make it clear, and to follow the procedure laid down by the Law and the Regulations, but not to act contrary to those provisions. There is no doubt that the administration offered the applicant the post in question; and to say the least he must have been very surprised indeed when he received the bad news that [*86] there was a number of complaints against him without even calling a single witness, or without adducing any kind of admissible evidence against him. With respect the document in question is not admissible, and it is to the credit of both counsel, in addressing the Court to concede that such a document was unacceptable in law. But I would go further and state that when the Minister of Interior decided to offer promotion to the applicant it was necessary for him to investigate in advance all the facts and circumstances before offering to him promotion. With that in mind, I have reached the view that then the Minister of Interior decided to offer promotion to the applicant, and before the acceptance of the promotion by him viz., for the completion of the administrative act, only then the agreement between the administration and applicant could have been revoked. If any authority is needed the case of Panayides v. The Republic through the Public Service Commission, (1972) 3 C.L.R. 467, in my opinion supports the above stand".
In Georghios Hji Georghiou v. The Republic, (Case No. 251/79 delivered on 20th November, 1981 and not yet reported), there were vacant posts of Inspector in the Fire Service, and the Chief of Police set up a promotion board under regulation 4 of the Police (Promotion) Regulations which met on the 22nd February, 1979, and considered all candidates recommended by the Chief Fire Service Officer for the posts in question. The Board strongly recommended the applicant and the interested party. The Chief of Police recommended to the Minister to approve the promotion of the persons selected including the applicant. The Minister of the Interior acting under s.13(2) of the Police Law, Cap. 285 (as amended by Law 29/66) by letter dated the 5th May, 1979, informed the Chief of Police that he did not approve applicant's promotion because there were doubts regarding his loyalty to the State.
Mr. Justice L. Loizou, in annulling the said decision had this to say:-
"It is common ground that neither the grounds upon which the Minister's doubts regarding Applicant's loyalty were based nor the existence of such doubts were either brought to the notice of the applicant or that he was not given an [*87] opportunity to be heard in relation thereto. Learned counsel appearing for the respondents was not, himself, aware what gave rise to the Minister's doubts but he thought that it may have been certain rumours regarding applicant's conduct at the time of the coup. As a matter of fact this seems to be quite likely because it appears from a letter dated 20th July, 1978 (exhibit 2) addressed by the Chief Fire Service Officer to the Applicant that there were certain reports against him made under the Certain Disciplinary Offences (Conduct of Investigation and Adjudication) Law, 1977, which were investigated and the Attorney-General of the Republic had advised that no charge could be brought against him.
This being the position is seems to me that it is of no consequence whether the Minister's doubts which led to the sub-judice decision were based on the reports to which exhibit 2 relates or on any other reports or information from undisclosed sources as either alternative is equally fatal to such decision because either it was based on grounds which did not constitute an offence of any kind and which could not legitimately be taken into account (see, inter alia, Tsangarides and Others v. The Republic (1981) 3 C.L.R. 117 and Koudounas v. The Republic, (1981) 3 C.L.R. 46) or on mere suspicions but, in either case, the applicant was never given an opportunity to be heard on the matter.
This is contrary to and offends against well established principles of natural justice and this Court is bound to annul the sub-judice decision accordingly".
In the light of these weighty Judicial pronouncements and because the Minister of the Interior has failed to follow the rules of natural justice and afford to the applicant a hearing, I would annul the promotions of the nine interested parties, viz., M. Odysseos, N. Onisiforou, N. Solomonides, P. Frydas, St. Karadjias, A. Demetriades, Y. Kassapis, A. Seimenis, and N. Kazafaniotis, because, I repeat, the principles of natural justice were violated.
Promotions annulled, but in the particular circumstances I am not making an order for costs.
Sub judice decision annulled. No
order as to costs.
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