(1985) 3 CLR 721
[*721] 1985 March 7
[L. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146
OF THE CONSTITUTION
HARIS THEODORIDES,
Applicant,
v.
THE CENTRAL BANK OF CYPRUS,
Respondent.
(Case No. 277/79).
Subsidiary legislation-Publication in the official Gazette under section 7 of the Interpretation Law, Cap. 1-What instruments require publication thereunder-Central Bank of Cyprus Employees’ (Conditions of Service) Regulations, 1964-Made under sections 13(2) (b), 14 and 17(2) (3) of the Central Bank of Cyprus Law, 1963-Are amongst the instruments requiring publication-And since they are a “public instrument” within section 2 of Cap. 1 and they had not been published, they were not validly enacted and were of no legal effect-Sub judice conviction and punishment which were based on the said Regulations annulled.
Words and Phrases-”Public instrument”-“Legislative effect”.
Statutes-Construction--Grammatical construction-Deviation therefrom allowed under certain circumstances-Construction of section 7 of the Interpretation Law, Cap. 1.
Following an investigation by an Investigating Committee, which was appointed by the Governor of the respondent Bank in accordance with regulation 39 of the Central Bank of Cyprus Employees’ (Conditions of Service) Regulations, 1964 (hereinafter to be referred to as [*722] “the Regulations”) to examine certain disciplinary charges against the applicant, the latter was found guilty of two disciplinary offences and was dismissed from the service of the Bank.
Upon a recourse by the applicant against his dismissal Counsel for the applicant mainly contended that the regulations under which the Investigating Committee Was constituted and the investigation carried out were invalid because they had not been published, in the official Gazette of the Republic as required by section 7 of the Interpretation Law, Cap. 1.
Held, (1) that an instrument requires publication under section 7 of Cap. 1, If
(i) It is a Law or public instrument.
(ii) It is made or issued under any Law or other lawful authority.
(iii) It has legislative effect; that since the Regulations in question were issued under the authority of the aforementioned sections of the Central Bank of Cyprus Law, 1963, and are a public instrument within the meaning of s. 7 of Cap. 1 requirements (i) and (ii) exist; that having regard to the meaning of “legislative effect” and to the fact that the Regulations in question regulate, inter alia, “that which must be obeyed and followed” by the Bank personnel “subject to sanctions or legal consequences”, they have legislative effect; and that, therefore, all requirements provided, by section 7 for publication exist.
(2) That the principles of construction of statutes (vide pp. 729-730 post) firmly establish the grammatical construction and allow deviation therefrom only under certain circumstances; that looking at the wording of section 7 of Cap. 1 none of the circumstances or exceptions which y allow deviation from the grammatical construction are present in this case; that, furthermore, what is most important, is that the use of the word “shall” in the section makes it abundantly clear that publication in the Gazette is indispensable to the validity of every public instrument made or issued under any Law; that in the light of the [*723] above and as Regulations in question are, no doubt, a “public instrument” within the meaning, of the words in s. 2 of the Interpretation Law this Court is driven to the conclusion that as they had not been published in the Gazette at The relevant time, they were not validly enacted and were consequently of no legal effect; and that since the Regulations on the basis of which the applicant was tried and punished disciplinarily were invalid, the sub judice conviction and punishment have to be annulled.
Sub judice decision annulled.
Cases referred to:
Ploussiou v. Central Bank of Cyprus (1983) 3 C.L.R. 398; Arsalides v. CY.T.A. (1983) 3 C.L.R. 510;
Kofteros v. Cyprus Electricity Authority (1985) 3 C.L.R. 394
Recourse.
Recourse against the decision of the respondent to dismiss applicant from the service in the Central Bank.
A. Pandelides, for the applicant.
A. Evangelou, Senior Counsel of the Republic, for the respondent.
Cur. adv. vult.
L. LOIZOU J. read the following judgment. The applicant by this recourse applies for the following relief:
a) A declaration of the Court that the decision of the Governor of the Central Bank which was communicated to the applicant by a letter of the Central Bank dated 4th June, 1979 (exhibit 2) by means of which the applicant was dismissed from the service of the Bank, is null and void and of no legal effect whatsoever and/or it is illegal and/or made in excess and/or abuse of powers.
b) A declaration of the Court that the decision and/or report of the Investigating Committee is null and void and of no legal effect whatsoever and/or is illegal and/or was made in excess and/or abuse of powers. [*724]
The applicant has been in the service of the respondent Bank as from 1st February, 1969, initially as a Clerk II and since 1st May, 1976, as an Assistant Cashier.
On the 28th July, 1977, the Governor of the respondent Bank appointed an Investigating Committee in accordance with regulation 39 of the Central Bank of Cyprus Employees’ (Conditions of Service) Regulations, 1964 (hereinafter to be referred to as “the Regulations”) to examine charges against the applicant for neglect of duty and/or non-compliance with the Currency Regulations and also for absence from duty without leave with effect from the 6th June, 1977. The Investigating Committee submitted its report to the Governor Of the respondent Bank on the 12th April, 1979, who, after considering it in consultation with the Personnel Committee, found applicant guilty of both charges. Regarding the charge of absence from duty without leave the Committee advised the Governor to award the punishment of dismissal which, is provided by regulation 39(3), paragraph (f) of the Regulations; and regarding the charge of neglect of duty and/or non-compliance with the Currency Regulations though the Committee concluded that ‘applicant was guilty of, serious neglect of duty and, non-compliance with the rules relating to the duties of currency officers, they did not recommend the imposition of any punishment on” the applicant in view of the fact that the Committee had already recommended his dismissal under the charge of absence from duty without leave. Following this recommendation of the Personnel Committee a letter dated 29th May, 1979 (exhibit 1 attached to, the Application) was sent to the applicant by the respondent, Bank informing him, of the above recommendation of the Committee and also stating, the following:
“The Governor acting in accordance with the advice of the Personnel Committee proposes to award the punishment of dismissal as provided for by regulation 39(3), paragraph (f), of the Regulations mentioned above.
Before proceeding with the punishment proposed the Governor invites you to inform him within a period of seven days from today of any reason why this punishment should not be imposed.” [*725]
In reply the applicant informed the Bank by letter dated 2nd June, 1979 (attached to the Opposition as Appendix XVII) that he wished to repeat what had been stated on his behalf by his advocates during the proceedings before the Investigating Committee. By letter dated 4th June, 1979 (exhibit 2 attached to the Application) the respondent Bank informed applicant that the Governor had, acting in accordance with regulation 3 9(3) of the Regulations, decided to dismiss him from the service of the Bank and that his employment was being terminated with effect from the 5th June, 1979.
As a result this recourse was filed.
At the commencement of the hearing of this case counsel for the applicant informed the Court that he would proceed only on one issue that of the dismissal of the applicant as a result of his conviction for the offence of being absent from duty for a period of time without leave and of the severity of the punishment imposed on him and abandoned the grounds of Law relating to the offences of neglect of duty and non-compliance with the Currency Regulations.
The main contentions of counsel for the applicant were:
a) The regulations under which the Investigating Committee was constituted and the investigation carried out were invalid because they had not been published in the official Gazette of the Republic.
b) The decision of the Governor of the Central Bank was not reasoned and/or duly reasoned.
c) The decision of the Investigating Committee was not in accord with the evidence adduced and/or its findings were not justified by the evidence adduced.
d) The sentence imposed was excessive.
e) The Governor decided what punishment to impose before hearing the applicant.
f) The Investigating Committee had not been constituted duly, and/or lawfully. [*726]
On the other band, counsel for the respondents submitted:
a) That is was not necessary for the Regulations to be published in the Gazette because they had no legislative effect in that they were not regulations of general application but they only regulated internal matters of the Bank and as such they need not have been published.
b) That the sub judice decision considered as a whole was a duly reasoned decision in accordance with the principles of administrative Law.
c) That the Court cannot interfere with the punishment imposed because this matter comes within the discretionary powers of the Disciplinary Board and this Court only interferes when the Disciplinary Board exercises its discretion inconsistently with the Law or the regulations.
d) That the Governor had not made up his mind beforehand but he acted in accordance with the Regulations.
I shall first deal with contention (a) i.e. the validity of the Regulations in question and I shall consider (i) whether the Regulations belonged to the category of instruments that had to b published in the Gazettee and, if so, (ii) the effect of non-publication on the validity of the Regulations.
Section 7 of the Interpretation Law (Cap. 1) provides as follows:
“7. Every Law and any public instrument made or issued under any Law or other lawful authority and having legislative effect shall be published ‘in the Gazette and unless it be therein otherwise provided shall take effect and come into operation on the date of such publication and shall be judicially noticed.”
An instrument, therefore, requires publication under the above section if:
(i) It is a Law or public instrument.
(ii) It is made or issued under any Law or other lawful authority. [*727]
(iii) It has legislative effect.
The Regulations in question, as stated in their preamble, were made in exercise of the powers vested in the Board of Directors of the Central Bank by virtue of paragraph (b) of sub-section (2) of s. 13, section 14 and by sub-sections (2) and (3) of s. 17 of the Central Bank of Cyprus Law, 1963.
The section most relevant is s. 13(2) (b) which reads as follows:
“13 (2) Without prejudice to the generality of subsection (1) the Board has power to
(a) ………………………………………………………………………………………………
(b) Subject to the provisions of any laws in force from time to time to make, on the recommendation of the Governor, regulations governing the internal organization of the Bank, specifying, with the approval of the Minister, the terms and conditions of service of all the officers and members of the staff of the Bank, and regulating their powers and duties as well as the exercise of disciplinary control over them.”
The term “public instrument” is defined in the Interpretation Law (Cap. 1) as “any Order in Council, order, proclamation, regulations, rules, bye-laws, notice, or register made, issued or kept under the authority of any Law”.
Since the Regulations in question were issued under the authority of the aforementioned sections of the Central Bank of Cyprus Law, 1963, and are a public instrument within the meaning of s.7 of Cap. 1 requirements 1 and 2 exist.
Regarding the question whether the Regulations have legislative effect it is pertinent to note that s. 13(2) (b), quoted above, provides that they should make provision for the terms and conditions of employment, powers and duties and about disciplinary control over officers of the Bank; looking at the Regulations themselves it is clear that they regulate the following matters affecting the employees of the Bank: Appointments, promotions, resignations; retirements, termination of employment, salaries and [*728] allowances, performance, of duties, conduct and discipline, medical benefits, provident fund and pension scheme, leave and schemes of service. It should also be noted that all the above matters are regulated by these regulations alone and by no other legislation subsidiary or otherwise.
In Black’s Law Dictionary, 5th edition’, the meaning of the word “legislative” is given as follows: “Making or giving Laws; pertaining to the ‘function of law-making or to, the process of ‘enactment of Laws. Actions which ‘relate to subjects of permanent or general character are ‘legislative’” And that of the words “Law” and ‘“effect”, are given in the same dictionary as follows:
“Law. That which is laid down, ordained, or established. A rule or method according to which phenomena or actions co-exist or follow each other. Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling, authority, and: haying binding legal force. United States Fidelity and Guaranty Co. v. Guenther, 281” U.S. 34, 50 S.Ct. 165, 74 L.Ed. 683. That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a Law. Law is a solemn expression of the will of the supreme power of the State....”.
“Effect, That which is produced by an agent or cause; result; outcome; consequence……………. The result which an instrument between parties will produce in their relative rights, or which a statute will produce upon the existing Law, as discovered from the language used, the forms employed, or other materials for construing it. The operation of a Law, of an agreement, or an act. The phrases take effect be in force, go into operation, etc. are used interchangeably.
Having regard to the meaning of “legislative effect” as it can be gathered, from the above and to the fact that the, Regulations in question regulate, inter alia, “that which must be obeyed and followed” by the bank personnel “subject to sanctions or legal consequences” I am satisfied that they have legislative effect.
Having found that all three requirements provided by [*729] s. 7 for publication exist I will next consider the effect, if any, on their validity as a result of their non-publication in other words, whether the fact that they were not published in the official Gazette renders them invalid with the result that any action taken thereunder is also invalid.
As stated earlier on s. 7 of the Interpretation Law provides that “....any public instrument made or issued under any Law or other lawful authority and, having legislative effect, shall be published in the Gazette...”.
I shall endeavour to construe the section having regard to the accepted principles governing construction which are to be found, inter alia, at pp. 8 3-84 of Craies On Statute Law, 7th edition, by S.G.G. Edgar. They may be summarized as follows:
(a) That the rule of Law upon the construction of all statutes is to construe them according to the plain, literal and grammatical meaning of the words.
(b) That where the grammatical construction is clear and manifest and without doubt, that construction ought to prevail, unless there be some strong and obvious reason to the contrary.
(c) That however plain the apparent grammatical construction of a sentence may be, if it be properly clear from the contents of the same document that the apparent grammatical construction cannot be the true one, then that which, upon the whole, is the true meaning shall prevail, inspite of the grammatical construction of a particular part of it.
(d) That it is a rule in the construction of statutes that in the first instance the grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with, any expressed intention or declared purpose of the statutes, or if it would involve any absurdity, repugnance, or inconsistency the grammatical sense must then be modified, extended or abridged so far as to avoid such an inconvenience but no further.
(e) That the mere literal construction of a statute ought not to prevail if it is opposed to the intentions of the legislature [*730] as apparent by the statute, and if the words are sufficiently flexible to admit of some other construction by which that intention can be better effectuated.
The above principles firmly establish the grammatical construction and allow deviation therefrom only under certain, circumstances. Looking at the wording of the section under consideration I find that none of the circumstances or exceptions which may allow deviation from the grammatical construction are present in this case. Furthermore, what is most important; is that the use of the word “shall” in the section makes it abundantly clear that publication in the Gazette is indispensable to the validity, of every public instrument made or issued under any Law.
In the light of the above and as the Regulations in question are, no doubt, a “public instrument” within the meaning of the words in s. 2 of the Interpretation Law I am driven to the conclusion that as they had not been Published in the Gazette at the relevant, time, they were not validly enacted and were consequently of no legal effect. (See, in this respect, Ploussiou v. The Central Bank of Cyprus (1983) 3 C.L.R. 398; Arsalides v. CY.T.A. (1983) 3 C.L.R., 510 and Kofteros v. The Cyprus Electricity Authority (not yet reported)).
It is true that, as it appears from the English authorities and views expressed by text book writers, there are two schools of thought in England with regard to the issue under consideration; but it is equally clear that they turn on the effect of the Statutory Instruments Act 1946. It is significant to note, in particular, section 3 (2) of the 1946 Act which provides:
“....it shall be a defence to prove that the instrument had not been issued....at the date of the alleged constravention unless it be proved that on that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged.”
And it is, to, my mind, the alternative provided by the ‘last ‘part of the sub-section that lies behind those, decisions and views which are to the effect that the provisions for [*731] publication are not mandatory but directory. In our section, however, there is no such or similar provision providing a substitute to publication.
Having come to the conclusion that the Regulations on the basis of which the applicant was tried and punished disciplinarily were invalid, the sub judice conviction and punishment have to be annulled. As this disposes of the recourse I consider it unnecessary to deal with the remaining grounds in support of the Application.
Sub judice decision annulled.
No order as to costs.
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