(1983) 3 CLR 159

[*159] 1982 November 19

 

HADJIANASTASSIOU, J.]

IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION

LOUCAS HAVIARAS,

Applicant.

v.

THE REPUBLIC CYPRUS, THROUGH

THE MINISTER OF INTERIOR AND DEFENCE,

Respondent.

(Cases Nos. 50/82 and 105/82).

Natural justice—Rules of—Right to be heard—Police Force—Promotions—Applicant not promoted though suitable for promotion because of information regarding his activities during 1974—No disciplinary proceedings ever instituted against him—And applicant not given. the right to be heard—Said information ought not to be taken into account for the purpose of the promotions—Above rule of natural justice violated—Sub judice decision annulled—Requirements of such rule not satisfied through explanations contained in a letter of applicant to the late President of the Republic because accused did not have in mind the accusations against him when sending the letter.

The applicant, a Police Superintendent ‘A’ was a candidate for promotion to the post of Chief Superintendent. Upon a recourse by the applicant the Supreme Court annulled the promotions of the interested parties to the above post; and following this annulment the respondent proceeded to review the whole position and decided again to promote the interested parties in preference and instead of the applicant. Hence this recourse by the applicant. The sub judice decision of the respondent Minister reads as follows:

“I have re-examined the question of the promotion of Mr. Loucas Haviaras after the decision of the Supreme Court in Case No. 458/80. Having in mind the acts and [*160] deeds for the period of 1974, as well as, his explanations as a result of those activities Mr. Haviaras is not acceptable by the majority of the members of the police force with the result that his authority within the police is limited, a fact which influences his productivity in such a degree as to make it impossible to be promoted to that very important post of Chief Superintendent, and as a result of that his promotion is not warranted in the particular circumstances. l have reviewed the cases of Messrs. Charalambos Spyrou and Stelios Menelaou of whom the promotions were annulled by the decision of the Supreme Court in Case No. 458/80. In view of my decision as regards Mr. Haviaras I have decided to promote Mr. Spyrou and Mr. Menelaou as from 1st October, 1980, and also Mr. Votsis as from 1st November, 1980”

Applicant was more senior than the interested parties and with better qualifications; and he was also recommended by the Chief of Police in 1979.

No disciplinary proceedings have ever been instituted against the applicant with regard to “his acts and deeds for the year 1974” which were referred to in the sub judice decision and applicant had not been heard.

Held, that for the purposes of promotion information and/or accusations against a candidate, once no disciplinary proceedings were instituted against him, and once he was not given the right to be heard should not be taken into consideration; that it was the duty of the administration to act in accordance with the general principles of administrative law and of natural justice; and that since they failed is act in this way the sub judice decision must be annulled.

Held, further, that the explanations contained in a letter which the applicant had addressed to the late President of the Republic do not satisfy the right to be heard of the rules of natural justice because the letter was sent without the accused having in mind those accusation.

Sub judice decision annulled.

Cases referred to:

Haviaras v. Republic (1981) 3 C.L.R. 415 at p. 417;

Tzavellas and Another v. Republic (1975) 3 C.L.R. 490; [*161]

Koudounas v. Republic (1981) 3 C.L.R. 46 at pp. 52, 53;

Savva v. Republic (1981) 3 C.L.R. 599 at pp. 601, 602;

Charalambous v. Republic (1981) 3 C.L.R. 203 at p. 210;

Chief Constable v. Evans [1982] 3 All E.R. 141;

Ridge V. Baldwin [1963] 2 All E.R 72.

Recourses.

Recourses against the decision of the respondent to appoint and/or promote the interested parties to the post of Chief Superintendent in preference and instead of the applicant.

K. Koushios with A. Haviaras, for the applicant,

M. Florentzos, Counsel of the Republic, for the respondent.

Cur. adv. vult.

HADJIANASTASSIOU J. read the following judgment. By the present recourses the applicant Loucas Haviaras seeks a declaration that the act and/or decision of the respondents to appoint and/or promote to the post of Chief Superintendent Charalambos Spyrou, Stelios Menelaou and Panayiotis Votsis instead of the applicant is null and void and of no legal effect.

THE FACTS

The applicant joined the police force on 8th February, 1954, and climbed up the ladder as per the details appearing in the file and became Superintendent ‘A’ on the 1st September, 1972. He is a graduate of the English School of Morphou and passed the examinations in English language ordinary and with distinction and attended a course of senior officers at Hendon College in United Kingdom between the 19th January and 6th June, 1959. He served in various branches of the police force and as from the 7th September, 1977, he was appointed in the Police Training School. Indeed the applicant is senior to the three interested parties having been promoted to the rank of Superintended ‘A’ five years before.

The interested party Charalambos Spyrou joined the police force on the 1st July, 1948, and climbed up the ladder also as per the details appearing in the file, Appendix B, and became Chief Superintendent on 1st October, 1980. He has graduated from the High School and has passed the examinations for lower [*162] English. He has served in the various departments of the police and since the 1st September, 1977; he is serving in the police headquarters. See Appendix B where his whole career is shown.

As regards the second interested party Stelios Menelaou he joined the police force on 1st September, 1941, and has been promoted and now has become Chief Superintendent. He has also graduated a High School and has succeeded in passing various examinations as it appears in Appendix B.

The interested party Panayiotis Votsis joined the Police Force on the 1st July, 1947 climbed up the ladder of the police hierarchy as per the particulars appearing in Appendix B attached to the application. He became Superintendent ‘B’ on the 1st September, 1972 and Superintendent ‘A’ on the 1st July, 1977. He attended for three years a secondary school and followed a course of lessons for vehicle driving at the U.K. from the 17th June, 1957, to the 21st July, 1957. In addition he attended short courses of motor-car engineering organized by the Productivity Centre of Cyprus during the years 1968, 1970, 1979. He served for ten years in various branches of the police and ever since the 1st September, 1960, he is the officer-in-charge of the Central Police Work-Shop. As from the 10th December, 1980, he is on leave prior to his retirement.

The present application is based on the following legal points: (1) That the decision attacked and/or the act of the respondents was taken contrary to the provisions of the Constitution and of the general principles administrative law and/or in abuse of the powers entrusted to them. (2) The respondents have failed to exercise properly their duties in selecting the best candidate. (3) The respondents have not taken into consideration and have not valued correctly the seniority, experience and superior qualifications of the applicant. (4) By appointing and/or promoting the interested parties instead of the applicant the respondents have exercised their discretionary powers wrongly. And (5) the decision attacked and/or the act of the respondents is not duly reasoned and/or the reasoning is wrong in law.

On the 2nd April, 1982, counsel for the Republic opposed the application of the applicant and relied on the following legal point: That the act and/or decision attacked is duly [*163] reasoned and was taken correctly and legally in accordance with the relevant provisions of the Constitution, the laws, and/or the regulations and after a proper exercise of the powers possessed by the Minister, as well as on the basic facts and circumstances of the case.

Counsel further relied on the following facts: (1) In accordance with the provisions of section 13(1) of the Police Law, Cap. 285 superior officers shall be appointed, promoted and dismissed by the Minister. (2) On the 14th October, 1981, the Supreme Court had issued its decision in Case No. 458/80 by which the applicant was attacking the promotion of the interested parties with regard to the post of Chief Superintendent. By its decision the said Court annulled the decision of promotion of the two interested parties. (3) On 17th November, 1981, the respondents in accordance with their powers which are derived from section 13(1) of the Police Law Cap. 285 had reviewed the whole position of the promotion of the applicant and/or the interested parties and has decided to promote the interested parties as from the 1st March, 1980. Indeed, the correct statement of the decision of the respondent is as follows: “I have re-examined the question of the promotion of Mr. Loucas Haviaras after the decision of the Supreme Court in Case No. 458/80. Having in mind the acts and deeds for the period of 1974, as well as, his explanations as a result of those activities Mr. Haviaras is not acceptable by the majority of the members of the police force with the result that his authority within the police is limited, a fact which influences his productivity in such a degree as to make it impossible to be promoted to that very important post of Chief Superintendent, and as a result of that his promotion is not warranted in the particular circumstances.” Then, the Minister goes on: “I have reviewed the cases of Messrs. Charalambos Spyrou and Stelios Menelaou of whom the promotions were annulled by the decision of the Supreme Court in Case No. 458/80. In view of my decision as regards Mr. Haviaras I have decided to promote Mr. Spyrou and Mr. Menelaou as from 1st October, 1980, and also Mr. Votsis as from 1st November, 1980.”

These two cases had to be adjourned on a number of times for reasons appearing on the record and particularly in order to trace the files. On 10th July, 1982, counsel appearing for the applicants made this statement: “It is the second time [*164] I am appearing before Your Honour’s Court asking for directions for the delivery of file P.P. 282/2 which is mentioned in the opposition filed in both recourses. Unfortunately, the file has not been inspected by us as yet for reasons which I do not understand and indeed Son the 26th April, 1982, and onwards we have repeatedly ask Your Honour’s Court to give directions regarding this matter. We consider the response of the respondents C inexcusable and we pray that the case is fixed for hearing at the earliest possible date.” In the light of this statement the case was fixed for hearing on the 10th September, 1982, with a rider that the files should be available to be inspected by counsel for the applicants five days before the date of hearing.

There is no doubt that the applicant is more senior than the interested parties and with better qualifications. I Indeed he was also recommended by the Chief of Police in 1979 and counsel appearing on behalf of the respondent did not even challenge.

GROUNDS OF LAW

Counsel for the applicant in support of his grounds of law argued very ably indeed (a) that the respondents erred in promoting the interested parties, and have acted contrary to the provisions of the law to choose the best A suitable candidate; (b) the respondents failed to take into consideration. The seniority, experience and the better qualifications of the applicant. Counsel further contended that the respondents were unduly influenced in attaching so much importance to an unsigned letter written during the period of 1974, and wrongly the Minister reached the conclusion that the applicant is not acceptable to the majority of the members of the police force. Indeed, counsel further argued that the respondents were not entitled to take into consideration such accusations based on information as to applicant’s loyalty and without instituting disciplinary or criminal proceedings against him.

There is no doubt, in my view, that the only important question which is before the Court is whether the Minister in deciding not to appoint the applicant erred in law. I have considered very carefully the contents of the letter in question, exhibit 5, and the activities and the deeds of the applicant for the period of 1974, as well as the explanations of the applicant, [*165] and I am afraid that those damning accusations by the Minister that the applicant was not acceptable to the majority of the police force is to say the least unreasonable, and that such statement was very prejudicial to the career of the applicant indeed, "but I shall revert on this matter.

With respect time and again it was said in a number of cases before the Supreme Court that for the purposes of promotion information and/or accusations against a candidate, once no disciplinary proceedings were instituted against him, should not be taken into consideration, and in my view, it was the duty of the administration to act in accordance with the general principles of administrative law and of natural justice.

There is no doubt that the Supreme Court in a number of cases attaches importance to the seniority, as well as to the experience and better qualifications, and in a recent case Loucas Haviaras v. The Republic (1981) 3 C.L.R. 415 Mr. Justice Malachtos had this to say at p. 417:

“It is clear from the above letter of the Chief of Police that the applicant in this recourse was recommended l for promotion prior to the recommendation of the interested parties. It. is further not disputed that the applicant, who is by five years senior to the interested parties, was on the whole the best candidate…………”

As I find myself in agreement with Mr. Justice Malachtos I turn now to the most important ground of law and it appears that the reason why the applicant was not promoted by the Minister is due to the provisions of an unsigned letter, exhibit 5, as well as his acts and deeds during the period of 1974 and applicant’s explanations on this subject, In addition it was said that the applicant is not acceptable to the majority of the members of the police force with the result that his authority is minimized. I have considered very carefully indeed these damning allegations against the applicant but in a great number of cases before the Court it was made amply clear that for the purposes of promotion information and/or accusations against a person once no disciplinary proceedings were instituted against him and once he was not given the right to be heard, in my view, he cannot be found guilty. If authority is needed, see the case of Demetrios Ch. Tzavellas and Another v. The Republic (1975) 3 C.L.R: 490. In Christos Koudounas [*166] v The Republic- (1981) 3 C.L.R. 46, I had this to say at pp. 52 53:

“I find it convenient, before dealing with the submission of both counsel, to refer to the duties and obligations of public officers under s.58(l) of the Public Service Law, 1967, (33/67). Section 58(1) reads:

‘Every public officer shall—

(a) be loyal and respect the law;

(b) faithfully and unfailingly perform his duties and generally use his utmost exertions to promote the interests of the Republic;

(c) carry out and comply with any orders and directions;

(d) not commit any act or omission or conduct himself in a way which may bring the public service in general or his police in particular into disrepute for which may tend to impair the confidence of the public in the public service;

(e) Properly conduct towards his superior officers and colleagues and towards the public’.

In view of the fact that the Commission included the applicant on the list, but finally decided not to promote or second him—the main reason being the report of KYP—the Commission was, unduly prejudiced and it is the only reason for not promoting or seconding the applicant to the post in question. What is equally surprising, is that in that report which has been sent by KYP, it simply says, that the applicant is not a loyal person and does not respect the law, but no reasons were put forward to support such a damning statement.

With this in mind, I have no doubt at all that the Commission, in not promoting or seconding the applicant to the post in question, was unduly acted contrary to the principles of natural justice, and did not give the applicant a chance to repudiate all those damning allegations against him. With respect, it was the duty of the Commission, once they had in their hands the said [*167] report, to postpone their final decision and institute disciplinary proceedings under the Disciplinary Code”.

Indeed counsel for the respondent claimed that the acts and/or deeds of the applicant which the Minister had in mind appear in reds 16-18 of exhibit 5 at pp. 7-20. There, is no doubt, as I have said earlier, that the unsigned document which is referred to the applicant, and which, is in the hands of KYP, again the Supreme Court had the occasion to deal with a similar case and particularly for the violation of the principles of natural justice. With that in mind it remains to examine the question of the date, viz., 18th March, 1977, red 20 in exhibit 5 and the letter of the applicant sent to the late President of the Republic Archbishop Makarios which in accordance with the contentions of counsel for the Republic contains the explanations and the views of the applicant Indeed, if I understood well the argument of counsel for the Republic is that with that letter it must be accepted that the provisions of natural justice are justified for the right to be heard. With respect in the light of the principles enunciated by our Supreme Court such stand cannot be accepted because the said letter was sent to the late President without the accused having in mind those accusations. Indeed, in my view, that letter cannot be considered as a reply. If authority is needed see the case of Charalambos Savva v. The Republic of Cyprus (1981) 3 C.L.R; 599, where Triantafyllides P. had this to say at pp. 601, 602:

“It is common ground that as has been very fairly stated by counsel for the respondents not only there were not ever instituted against the appellant criminal or disciplinary proceedings in relation to the alleged criminal conduct of his—which is, obviously, a matter of a very serious nature—but he was never informed about the accusations against him and was never given the opportunity to reply, to them, either orally or in writing, so that the Council of Ministers would have before it his own version too.

In the absence of any indication to the contrary, we have, in the circumstances, to assume that the Council of Ministers took into account, and was substantially influenced by, the aforementioned accusations against the [*168] appellant, and, in view of the fact that the appellant was never given an opportunity to reply, any way whatsoever, to such accusations, we are of the opinion that there has occurred an infringement of the basic rule of natural justice which required that the appellant should have been given a chance to be heard before being treated in the manner about which he is now complaining Consequently the sub judice decision of the Council of Ministers by means of which he was refused a pension is vitiated by the afore said failure to afford him an opportunity to be heard and it has to be declared to be null and void and of no effect whatsoever”;

In addition l would add that nowhere is to be found an admission or an apology by the applicant, but, on the contrary he was alleging all along, he offered valuable services fin such a way as not to put in danger the life of his colleagues. The further question is how is it possible to contradict such an allegation. Indeed, that letter remained in the file since 1977 and apart from the fact that the Disciplinary Regulations of the police were still in force, well as, the provisions of Law 3/77 the applicant was not prosecuted and in effect he was deprived of his rights to defend himself. If authority is needed see the case of Yiannakis Charalambous v. The Republic (1981) 3 C.L.R. 203, where I had this to say at p. 210:

“Having considered very carefully the facts and circumstances of this 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 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) 7 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 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 [*169] and the Regulations, but not to act contrary to those provisions”.

See also on the question of the rules of natural justice the recent case of Chief Constable v. Evans [1982] 3 All E.R. 141, and the dictum of Lord Reid in Ridge v. BaIdwin [1963] 2 All E.R. at p. 72.

For the reasons I have given at length and in the light of the authorities I have quoted, I have reached the conclusion that the decision and/or the act of the respondents should be declared null and void and of no legal effect whatsoever.

Recourses succeed, the Sub judice decision is annulled with costs in favour of the applicant.

Sub judice decision annulled.

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