(1983) 3 CLR 495
[*495] 1983 May 3
[Loris, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
GEORGHIOS KOMODROMOS AND OTHERS,
Applicants,
v.
THE REGISTRAR OF TRADE UNIONS,
Respondent.
(Case Nos. 462/81, 486/81, 500/81, 83/82, 84/82).
Statutes—Construction—Conflict between section of the Law and regulations—When reconciliation between the two is not possible the regulation, which is subordinate to the section, would give way as the regulation may itself be called in question as being ultra vires—Regulation 16 of the Trade Unions Regulations, 1968 ultra vires section 22 of the Trade Unions Law, 1965 (Law 71/65) in so far as it confers discretion on Registrar of Trade Unions to register the change of officers.
Trade Unions Law, 1965 (Law 71/65)—Trade Union—Registration of change of officers of, by Registrar of Trade Unions—Section 22 of the Law—Mandatory and leaves no margin for discretion to the Registrar to refuse registration—Regulation 16 of the Trade Union Regulations, 1968 ultra vires section 22 in so far as it confers such a discretion to the Registrar—Registrar has no power under the Law to direct holding of new elections.
Following the holding of the elections for the election of the various bodies and organs of the Pancyprian Organisation of Greek School-masters ("POED") the results of both elections were promptly communicated to the respondent Registrar of Trade Unions, pursuant to section 22 of the Trade Unions Law, 1965 (Law 71/65) who was requested to register the resulting from the said elections change of officers, as envisaged by the said section 22. The respondent Registrar, acting under the [*496] said section 22 and regulation 16 of the Trade Union Regulations, 1968, refused the registration applied for and, also, directed the holding of new elections. Hence these recourses in which the issues for adjudication were:
(a). Whether the provisions of section 22 of the Trade Unions Law, 1965 (Law 71/65) were mandatory;
(b). whether regulation 16 of the Trade Unions Regulations, 1968 was ultra vires s.22 of Law 71/65;
(c). whether the Registrar could direct the holding of new elections.
Held, that the provisions of section 22 of the Trade Unions Law, 1965 (Law 71/65) are mandatory and leave no margin for discretion whatever to the respondent Registrar of Trade Unions; that, on the contrary, regulation 16 clothes the Registrar with discretion which means that the Registrar registers the change if he is satisfied that the change was effected according to the Constitution of the Trade Union concerned; that if a reconciliation between section 22 and regulation 16 is not possible the regulation which is subordinate to the section must give way, as the regulation may itself be called in question as being ultra vires the Law; that section 22 and regulation 16 cannot be reconciled and so the regulation must give way to the section; and that, therefore, section 22 of Law 71/65 prevails as regulation 16 is ultra vires the Act in so far as it confers discretion on the respondent Registrar to register the change of officers.
(2) That there is no law conferring on the respondent Registrar the right to direct the holding of new elections.
Sub judice decisions annulled.
Cases referred to:
POED v. Registrar of Trade Unions (1982) 3 C.L.R.177;
Queen v. Registrar of Friendly Societies [1871-1872] VII Q.B.741 at p.747; [*497]
Croxford v. Universal Insurance Co. [1936] 2 K.B.253 at p.281;
Ex parte Davies [1872] Ch. App.526 at p.529;
R. v. Judge of City of London Court [1892] 1 Q.B.273;
King Emperor v. Bensari Lai Sarma (1945) L.R.72 LA. 57 atpp. 70, 71;
Kanaris v. Tosoun (1969) 1 C.L.R.637 at p.643.
Recourses.
Recourses against the decision of the respondent whereby he refused registration of the change of names in respect of the "Committee of Management " of P.O.E.D. and for the holding of new elections.
P. Angelides, for applicants in Case No. 462/81.
Chr. Pourgourides, for applicants in Case No. 486/81.
A. Markides with A. Haviaras and Chr. Hji Anastassiou for applicants in Cases Nos. 500/81, 83/82 and 84/82.
M: Kyprianou, Senior Counsel of the Republic, for all respondents.
A. S. Angelides with A. Agrotis, for all interested parties.
Cur.adv. vult.
LORIS J. read the following judgment. These five recourses, which present common legal issues, were on the application of all concerned heard together.
The uncontested facts of all these cases, may be very briefly thus summarized :
The Pancyprian Organisation of Greek School-masters known as POED) has long ago been registered as a trade union under the law and it is still so registered pursuant to the provisions of Law 71/65 as amended by Law 22/70.
The various bodies, organs e.t.c. of the Organisation, as well as the mode of their elections, functions e.t.c, [*498] are set out in the constitution of the Organisation which is exh. 'Z' before me (filed in Case No. 500/81).
On 28/5/81 elections were held in all 7 sections of the union (covering the 6 districts - the Nicosia District being sub-divided in two sections, the one covering exclusively Morphou area) with a twofold object :
a) the election of the District Union Committees comprising of five members each;
b) the election of General Representatives (the number of which varied from section to section being depended on the number of the union members of each section as envisaged by article 11.1 of the union constitution - exh. 'Z') who would later meet pursuant to the provisions of article 11.4 of the union constitution and elect the "Committee of Management" for all sections of POED, whose term of office expires two years after 28/5/81 when new elections will have to be held as envisaged by the union constitution (exh. 7).
Thus the ballot list of each section of the union was divided into two parts: One part included the names of the. candidates for the District Committees of the union (5 candidates for each rival group and on occasions "isolated independent contestants") and the other part included candidates for the election of General Representatives, the number of which varied from section to section for the reason stated earlier on in the present judgment; thus, for example, in the case of Nicosia Section there were 49 candidates for each one of the two rival groups, as far as General Representatives were concerned, (vide exh. "AA" filed in case No. 500/71) whilst in the case of Paphos Section the number of candidates - in connection with General Representatives - for each one of the three rival groups was only 111 (Vide exh. "A-Γ” filed in case No, 500/81)
The General Representatives elected on 28/5/81 met on 28/6/81 and elected, pursuant to article 11.4 of the union constitution, the "Committee of Management" of all sections of POED. The results of both elections were promptly communicated, pursuant to the provisions of s. 22 of the Trade Unions Law 1965 (Law No. 71/65) , to the respondent Registrar, who was [*499] furnished with the prescribed fee and was requested to register the resulting from the said election change of officers, as envisaged by s. 22 of Law 71/65.
The respondent Registrar addressed on 21/12/81 a letter, to the newly elected Secretary General of POED (one of the applicants in Recourse No. 500/81) announcing his decision:
(a) to refuse registration of the change of officers in respect of the "Committee of Management", and
(b) the holding of new elections.
Similar letters were addressed by the respondent Registrar on 2/12/81 to the District Secretaries of Nicosia, Limassol, Famagusta and Paphos branches of the union, elected on 28/5/81. By these letters the respective District Secretaries were likewise informed of the decision of the respondent:
(a) to refuse registration of the change of officers, brought about by the results of the election held on 28/5/81 in the respective districts and
(b) for the holding of new elections in the respective districts.
Hence the present proceedings:
1. On 4.12.1981 the newly elected District Committee of POED Famagusta, and/or newly elected members in the said Branch Committee representing the majority thereof, filed Recourse No. 462/81 impugning the afore said decision of the respondent dated 2.12.1981; the sub-judice decision in this recourse is marked exh. 1, and appears in the relevant file.
2. On 18.12.1981 the elected on 28.5.1981 District Committee of POED Limassol, filed Recourse No. 486/81 attacking the decision of the respondent Registrar dated 2.12.1981; the sub judice decision in this recourse is marked exh. 2 in the relevant file.
3. On 23.12.1981 the newly elected Central Committee of the Organisation, the "Committee of Management", filed Recourse No. 500/81 by means of which the relevant decision of the respondent Registrar is being impugned; [*500] the sub judice decision in this recourse is appended to it and it is marked exh. "A".
On 15.2.1982 the newly elected District Committee of POED Paphos, and/or 4 out of the 5 members of the District Union Committee filed recourse No. 83/82 attacking the aforesaid decision of the respondent which is marked exh. "A" which is filed in the relevant file.
On 15.2.1982 the newly elected Committee of the Nicosia Section of POED (which does not include Morphou Section) and/or the majority of members thereof on its behalf, filed Recourse No. 84/82 attacking the afore said decision of the respondent; the sub judice decision dated 2.12.1981 is marked exh. "A" and appears in the file in question.
(I shall have the opportunity of referring to these sub judice decisions of respondent when examining their nature and effect at a subsequent stage of my present judgment.)
On 20/1/82 the District Committee of POED Limassol who already filed Recourse No. 486/81, filed an application for the issue of a provisional order staying
(a) the decision of the respondent Registrar for holding new elections;
(b) the decision of the respondent Registrar "directing the previous executive committee to take office and proceed with elections", pending the determination of the recourse for annulment.
On 23/12/81 together with the main recourse under No. 500/82, the Central Committee of POED, the "Committee of Management", filed a similar application for the issue of a provisional order staying same parts of the sub judice decision pending the final determination of this recourse.
The respondent Registrar filed opposition to both aforesaid applications, which were heard together, on the application of both sides. [*501]
The decision of this Court on the aforesaid applications was pronounced on 25/2/82 (Vide POED v. The Registrar of Trade Unions (1982) 3 C.L.R. 177).
After this decision counsel for the parties proceeded to file written addresses as directed by the Court; before the completion of the filing of written addresses, on 29/5/82 two applications were filed in each one of the present recourses, the one on behalf of 13 applicants, former officers of POED who took over the management of the Organisation after the refusal of the respondent Registrar to register the newly elected committees, and the other on behalf of 21 members of POED who have applied to the Registrar attacking the results of the elections on 28/5/81 in three districts. Applicants in both these applications were praying for an order of the Court granting to them leave to intervene in all five recourses as interested parties.
On 11/6/82 with the consent of all applicants and respondent in the five recourses, applicants in both aforesaid applications were granted leave to intervene and thus all interested parties filed opposition to each one of the recourses and counsel on their behalf filed written addresses as directed.
Finally on 26/11/82 when all recourses were fixed for clarification and evidence some more documents were produced as exhibits and some more witnesses were heard and counsel of all concerned had the opportunity of clarifying and supplementing their written addresses, viva voce.
I shall now proceed to examine the sub judice decisions of the respondent Registrar dated 2/12/81 which appear in each one of the five recourses and are marked as aforesaid.
With slight variations in each, in particular as regards the addressees of the letters containing the sub judice decisions, all five letters-decisions are substantially identical and they may be sub-divided into two parts. In the first part the Registrar in quite clear and unequivocal words refuses registration of the change of officers brought about by the results of the elections held on 28/5/81 for the reasons stated therein; in the second part of his decision which is constituted of two paragraphs the respondent quite vaguely indicates that new elections should be held and invoking the opinion of the Attorney-General of [*502] the Republic on a similar occasion, as he puts it, states that such elections will be carried out by the old Committee of Management. In this respect I feel that I should repeat what I have stated when giving the decision on the application for a provisional order: "Whilst the latter parts (of the decision) referred to above have been on both occasions expressed with some equivocation, it was the stand taken throughout by the respondent that this latter statement of his, contained in the aforesaid exhibits, were part and parcel of his decision".
As there is no law conferring on the respondent Registrar the right to direct the holding of new elections that part of his decision which so directed, was flagrantly illegal and ought to have been, as in fact was, suspended by the provisional order given on 25/2/82; now that I am dealing with the merits of these recourses I adopt my aforesaid decision and its reasoning which must be considered as forming part of my present judgment.
Having dealt with the second part of the sub judice decision of the respondent which is in effect covered by my decision given in the applications for provisional order, I shall now proceed to examine the main issue which falls for determination, notably the refusal of the Registrar to register the change of officers when promptly requested to do so pursuant to the provisions of s. 22 of the Trade Unions Law 71/65.
In all the. sub judice decisions the respondent Registrar says clearly that such registration cannot be effected according to s. 22 of the Trade Unions Law 1965 (Law No. 71/65) and regulation 16 of the Trade Union Regulations of 1968 because the change of officers was not made pursuant to the provisions of the trade union constitution: and respondent proceeds to explain (A) in his decision in case No. 500/81 that the General Representatives elected on 28/6/81 were irregularly elected as
(i) at the elections of 28/5/81 held in the Districts of Paphos, Limassol, Famagusta and Nicosia persons voted who were not entitled so to do as they were not members of the Union.
(ii) At the Nicosia District elections, the number of representatives elected was greater than the number provided by article 18(a) of the Union Constitution. [*503]
(B) In his decision in all the remaining cases the persons who voted were not entitled so to do.
All applicants in all recourses pray for the annulment of the sub judice decisions and their main contention is to the effect that the provisions of s. 22 of the Trade Unions Law (Law No. 71/65) are mandatory and the respondent Registrar had no other alternative but to register the change of officers on receipt of the relevant application accompanied by the prescribed fees. The provisions of regulation 16 of the Trade Union Regulations 1968 - they maintain - in so far as they allow a discretion in this respect to the Registrar are ultra vires the enabling law. Counsel for respondent submitted, inter alia, that the Registrar has a discretion both under s. 22 of Law 71/65 and under regulation 16 of the Trade Union Regulations which according to his submission is intra vires; the Registrar of Trade Unions, counsel emphasised, is the watch-dog of legality in the Trade Unions and as such be cannot be deprived of descretion thus becoming a rubber stamp. Therefore, he maintained the law must be reasonably construed so as to enable him to exercise a discretion; construing the law in a different way - counsel continued - would lead to absurdity.
All interested parties in their opposition raised certain preliminary objections which boil down to an averment that all present recourses are not justiciable.
All these objections as elaborated by leading counsel of the interested parties are based on the following line of thought:
(i) The sub judice decisions form part of a composite administrative act or decision.
(ii) The final act of the composite decision is the decision of the respondent Registrar to the effect that the elections held in at least 4 districts were irregular, therefore void. This decision -the final one - was never impugned by a recourse.
(iii) The other composite administrative decisions lost their executory character in view of the final decision.
(iv) The non-registration of the changes is only the result of the main decision (being that the elections were irregular - void and therefore annulled by the Registrar). [*504]
(v) The applicants having been elected irregularlyillegally do not have existing legitimate interest in the sense of Article 146.2 of the Constitution.
As the objections raised by the interested parties go to the jurisdiction I feel bound to examine them first. I hold the view that the whole problem should be examined in the following sequence :
Are the provisions of s. 22 of law 71/65, under which the respondent Registrar was called to act mandatory?
If the answer is in the affirmative, that would be the end of the matter; he should have registered the change of officers; as no other alternative would be opened to him.
If the answer was in the negative and the respondent had a discretion the next thing which he ought to have examined was the extent of such discretion.
Could the respondent for instance decide to annul the results of the elections? As at present advised I do not think so. That would be within the province of a competent Court; as Mellor J. said in a case very similar to the one in hand, the case of The Queen v. The Registrar of Friendly Societies [1871-1872] VII Q.B. 741 at p. 747:
"We should not be doing right if we compelled the Registrar to prefer one of the contending parties to the other by registering them, when two sets of persons are she in to be claiming to represent the same society. The Court of Chancery is more adapted to settle such a dispute;…"
Could then the Registrar order the holding of new elections? I have already held that definitely he could not do such a thing as he had no such right under the law.
Perhaps the only course open to the Registrar, assuming always that he had a discretion, was the refusal to register the change of officers coupled with an indication to those concerned to apply to the appropriate Court for redress What did the Registrar do in these cases?
1. He assumed that he had a discretion and he decided in the first place to refuse the registration of the change of [*505] officers. I am not deciding this point now. I shall consider it and pronounce on it after disposing of the preliminary objections raised by the interested parties who have intervened with the leave of the Court.
2. He proceeded to decide on the holding of new elections; even he went as far as indicating the body who would have conducted same; now we are also informed by leading counsel appearing for the interested parties that the Registrar decided the annulment of the results of the elections as well; it is true that I could not trace such an express decision of the respondent in any one of the sub judice decisions. If the submission is that such a decision must be presumed by necessary implication I shall confine myself in saying that it was not within the competence of the respondent to take such an administrative decision in the same way it was not open to him to decide for the holding of new elections, a decision which I have already declared flagrantly illegal.
So assuming that the respondent Registrar had a discretion under s. 22 of law 71/65 the only decision within his competence would have been a refusal to register; all other decisions could not have been taken by the respondent; they were not within his competence.
For all the above reasons the preliminary objections raised by the leading counsel appearing for the interested parties are doomed to failure and they are accordingly dismissed.
Now I shall proceed to examine the last and most important issue i.e. the refusal of the respondent Registrar to register the change of officers, (a change which resulted from the elections) pursuant to the provisions of s. 22 of Law 71/65.
Section 22 of the Trade Unions Law 1965 (Law No. 71/65) reads as follows:
"22. Πάσα αλλαγή αξιωματούχων ή του τίτλου τινός εξ αυτών κοινοποιείται δια της αναρτήσεως της σχετικής γνωστοποιήσεως εις περίοπτον μέρος της εγγεγραμμένης έδρας και παντός γραφείου παραρτήματος εκάστης εγγεγραμμένης συντεχνίας, εντός δεκατεσσάρων δε ήμερων από της αλλαγής ή τοιαύτη γνωστοποίησις αποστέλλεται υπό [*506] της συντεχνίας ομού μετά των νενομισμένων τελών εις του Έφορον, όστις και εγγράφει ταύτην".
("22. Notice of all changes of officers or of the title of any officer shall be prominetly exhibited in the registered head office and any branch offices of every registered trade union, and shall, within fourteen days of the change, be sent to the Registrar by such trade union, together with the prescribed fee, and shall be registered by him").
The Trade Unions Regulations 1968, made pursuant to s. 58 of law 71/65 were published in the Cyprus Gazette under No. 681 dated 25/9/68 (vide Supp. No, 3 Not: 673). Regulation 16 reads as follows :
"16. Γνωστοποίηση περί οιασδήποτε αλλαγής αξιωματούχων ή τίτλου οιουδήποτε αξιωματούχου εγγεγραμμένης συντεχνίας ή παραρτήματος αυτής αποστέλλεται εις τον Έφορον εις διπλούν υπό του Γραμματέως της συντεχνίας, δέον δε να είναι εν τω Τύπω Αρ. 12 εν τω Πρώτω Πίνακι και περιλαμβάνη τα εν αυτώ εκτιθέμενα στοιχεία. Εάν ικανοποιηθή ότι ή αλλαγή έπηνέχθη συμφώνως προς το καταστατικόν της συντεχνίας, ο Έφορος εγγράφει την αλλαγήν και επιστρέφει το εν αντίγραφον εις τον Γραμματέα, σημειωμένον δια της λέξεως 'ενεγράφη' και υπογεγραμμένον υπ' αυτού".
("Notice of any change of officers or of the title of any officer of a registered trade union or any of its branches is sent by its secretary to the Registrar in duplicate, and must be as in form 12 of the first Schedule and must include the particulars shown therein. If he is satisfied that the change was effected in accordance with the Regulations of the trade unior, the Registrar registers the change and returns one of the copies to the Secretary, noted by the word 'registered' and signed by him").
Applicants in the present recourses, maintain as aforesaid, that s. 22 of Law 71/65 quoted verbatim in Greek above, is of a mandatory character owing to its wording whilst regulation 16 of the Trade Unions Regulations 1968 (which was made under s.58(1) of the law by the Council of Ministers "for the better carrying of this law into effect") owing to its wording gives discretion to the Registrar of Trade Unions and is thus in direct [*507] conflict with the law; regulation 16, they submit, is therefore ultra vires.
Counsel for respondent submits (and counsel for the interested parties supports this submission) that s. 22 of Law 71/65 must be reasonably construed, considering the law as a whole so as to give the Registrar of Trade Unions a discretion enabling him to carry out his duties as the watch-dog of legality in the Trade Unions. In such a case counsel maintained there would have been no conflict with regulation 16 which is "intra vires"; a different interpretation of the law would lead to absurdity.
The first thing I have to consider is whether the words of s. 22 of Law 71/65 are clear and unambiguous because as Scott L.J. said in Croxford v. Universal Insurance Co., [1936] 2 K.B. 253 at p. 281:
"Where the words of an Act of Parliament are clear, there is no room for applying any of the principles of interpretat ion, which are merely presumptions in cases of ambiguity in the Statute".
After ascertaining the nature of the words employed in the law I have to examine likewise the words employed in regulation 16.
In the case of a conflict between the rule and the section of the law, I have to examine whether reconciliation of the two is possible; if not, the subordinate provision must give way and the rules would be regarded as subordinate to the section, as the rules may themselves be called in question as being ultra vires the law. As James L.J. said in Ex parte Davies [1872] Ch. App. 526 at p. 529 :
"If the act is plain, the rule must be interpreted so as to be reconciled with it, or, if it cannot be reconciled, the rule must give way to the plain terms of the Act. "
In R. v. Judge of City of London Court [1892] 1 Q.B. 273 it was held that,
"if the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the Legislature has committed an absurdity" (Per Lord Esher at p. 290). [*508]
The same principle was enunciated by. the Privy Council in the case of King Emperor v. Bensari Lai Sarma [1945] C L.R. 72 I.A. 57 at pp. 70, 71, where Viscount Simon L.C in delivering the advice of their Lordships said:
"their Lordships feel bound to point out that the question whether the Ordinance is intra vires or ultra vires does not depend on conditions of jurisprudence or of policy. It depends simply on examining the language of the Government of India Act and of comparing the legislative authority conferred on the Governor-General with the provisions of the Ordinance by which he is purporting to exercise that authority….. Again and again this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the result, injurious or otherwise, which may follow from giving effect to the language used".
Reverting now to s.22 of Law 71/65 ,Imust say that the words therein used are more than clear and free from any equivocation; the Greek words "όστις και εγγράφει ταύτην" definitely means "who shall register same"; I haven't got the slightest doubt in my mind about this and, I feel that there is no need to resort to any Greek dictionary or other aid in order to ascertain it. Therefore the effect of this section is mandatory and leaves no margin for discretion whatever to the respondent Registrar.
On the contrary regulation 16 clothes the Registrar with discretion: “Εάν ικανοποιηθή ότι η αλλαγή επηνέχθη συμφώνως προς το καταστατικόν της συντεχνίας, ο Έφορος εγγράφει την αλλαγήν…”, which means that the Registrar registers the change if he is satisfied that the change was effected according to the constitution of the Trade Union concerned.
I cannot see how s.22 of Law 71/65 and regulation 16 of the Trade Unions Regulations 1968 can be reconciled in that respect; in effect they are quite repugnant as the regulation purports to amend s. 22 of the law by conferring a discretion on the Registrar, which is being denied to him by the Statute. According to the authorities cited above the regulation being subordinate to the section "must give way to plain terms of the Act", (s.22 of Law 71/65) [*509]
Thus s. 22 of Law 71/65 prevails as r. 16 of the Trade Unions Law is "ultra vires" the Act in so far as it confers discretion on the respondent Registrar to register the change of officers.
Concluding on this last issue I feel that I should repeat what was stated by our Supreme Court in the case of Loizos Kanaris v. Osman Tosoun (1969) 1 C.L.R. 637 at p. 643:
"…the words cannot be construed, contrary to their meaning as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect. When once the meaning is plain, it is not the province of a Court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expand it as it stands, according to the real sense of the words..."
Under the circumstances I do not think that I should proceed to pronounce on the remaining legal grounds advanced in the relevant applications.
For all the above reasons all 5 sub judice decisions should be annulled.
In the result the sub judice decisions in all the above five recourses are hereby declared null and void and of no effect whatever.
Having given the matter my best consideration I have decided to make no order as to costs.
Sub judice decisions annulled.
No order as to costs.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο