Supreme Court orders case reopening due to missing administrative decision and procedural defects.

[*9]

(TRIANTAFYLLIDES, J.)

In the matter of Article 146 of the Constitution.

Between: Theoharis Dafnides of Nicosia,

Applicant,

and

The Republic of Cyprus through the Board

for the Reinstatement of Dismissed Public Officers, Nicosia,

Respondent.

(Recourse No. 203/62).

The Dismissed Public Officers Reinstatement Law, 1961 (Law 48/61) - Claim for reinstatement - Re-opening of case after its hearing and reservation of Judgment - Duty of administrative court to reach own conclusions irrespective of course adopted by parties.

RULING

On the 1st September, 1964, after a hearing of this case, judgment was reserved until to-day. In the course, however, of considering it I have come to the conclusion that at the present state of the proceedings it would not be proper to deliver judgment and that the hearing of the case has to be reopened.

The reasons which have led to the adoption of such a course are the following:-

In spite of the fact that, thanks to diligent efforts of counsel for both sides, a considerable number of relevant documents have been traced and produced as exhibits, the Court still does not have before it any document containing the actual decision of the Respondent Board, which was communicated to Applicant by means of a letter dated the 18th July, 1962 (exhibit 5); nor are there before the Court any relevant [*10] minutes or other records of the said Board, which in the normal process of proper administration ought to have come into existence in relation to Applicant's claim for reinstatement under the Dismissed Public Officers Reinstatement Law, 1961 (Law 48/61).

Counsel for Respondent has stated at the hearing that as far as he could find out there does not exist a drawn up decision or any minutes of the Respondent Board concerning the subject-matter of this recourse. He has also, with fairness justifiably expected from a counsel of the Republic, invited the Court to annul the decision of the Respondent Board, as communicated by exhibit 5, as he agreed with counsel for Applicant that, in the light of the documentary and the oral evidence adduced in this case, Applicant should have been deemed to be an "entitled officer", within the meaning of such term under section 2 of Law 48/61; it has come to be common ground at the hearing that Applicant was indeed compelled, through psychological pressure, to retire in June 1956, 3½ years before his normal date of retirement in December 1959, ostensibly for the sake of the efficiency of the Police but in true fact for "political reasons", as they are defined under the aforesaid section 2.

I have considered carefully whether, on the basis of the present state of the record of proceedings and in the light of the consensus by counsel as to the proper outcome of this case - which consensus is a very weighty consideration - indeed - I could proceed to issue judgment annulling the sub judice decision of the Respondent Board. I have come to the conclusion that as a court exercising, in this case, the revisional jurisdiction vested in an administrative court, I could not follow such a course before enquiring further into the existence and fate of any relevant records of the Respondent Board, as well as into the question of the actual course followed by the proceedings before such Board in relation to Applicant's application for reinstatement, a question which is closely interwoven with the question of the existence of any records relevant to such application.

Though I do not doubt at all the bona fides of what I have mentioned earlier, as having been stated by counsel for Respondent at the hearing, i.e. that as far as he could find out there does not exist a drawn up

decision or minutes of the Board concerning the subject-matter of this recourse, I feel duty-bound to proceed also to an examination of this matter using the appropriate procedural means at the disposal of the Court. [*11]

The question of the existence ever or of the subsequent fate of all or any of the normally and properly expected and required, relevant to the issues of this case, records of the Respondent Board and the interconnected question of the actual course followed by the proceedings before it, on the subject of Applicant's application to it, are so vitally material to the validity or otherwise of the decision of such Board to dismiss Applicant's said application, that such questions cannot he left unresolved or treated as secondary aspects of the matter.

An administrative court, though never overlooking what has been stated by counsel for the parties - and in this Case their considered consensus to the effect that the decision in issue should be annulled is to be duly considered - has to reach its own conclusions on the legal as well as the factual aspects of the validity of an administrative decision, including the question of its validity from the point of view of the observance, in arriving thereat, of essential procedural formalities (vide Kyriakopoullos on Greek Administrative Law, 4th ed., vol. III p.4l). It is the responsibility of an administrative court, exercising its competence in the public interest, not only to adjudicate on the issues raised by the parties, but to enquire fully into the validity of the administrative decision in question, once such validity has been put in issue by means of a recourse, (vide Tsatsos on the Recourse For Annulment Before The Council of State, 2nd ed. , p.225 et. seq.).

It is directed, therefore, under rules 19 and 12 (2) of the Supreme Constitutional Court Rules, which are still applicable to a case like this one, by virtue of s. s. 11 and 17 of the Administration of Justice (Miscellaneous Provisions) Law, 1964. (Law 33/64) that -

(A) the hearing of this case shall be reopened and resumed on the 22nd of September, 1964, at 10 a.m.

(B) at such hearing Respondent, through any properly authorised official, shall supply information on oath concerning the following: -

(i) What relevant records, including any file of the case of Applicant, minutes of the Board and a drawn up decision thereof, exist or have come at any time into existence in connection with Applicant's claim for reinstatement;

(ii) In case all or any of such records have never [*12] come into existence or having come into existence they are no longer available, what are the causes for such state of affairs

(iii) What is the actual course followed by the proceedings before the Board in relation to Applicant's application;

(iv) Any cognate or otherwise relevant aspect of the matter which. may be raised by the Court or counsel by leave of the Court.

Counsel for Respondent is requested to see with all possible dispatch to the implementation of what has been hereby directed and he is at liberty to seek any further Directions from the Court, if need be.

7th September, 1964.