Supreme Court dismisses appeal upholding Minister's referral of misconduct to Public Service Commission.

[*789] 1968 July 25

(TRIANTAFYLLIDES J.)

REVISIONAL JURISDICTION

Panos Papanicolaou,

Applicant.

and

The Republic of Cyprus, through

1. The Minister of Health,

2. The Council of Ministers,

3. The Public Service Commission,

Respondents.

(Case No. 1/68).

Public Officers - Disciplinary proceedings - Public Service Law, 1967 (No. 33 of 1967), sections 58(1) (e), 73(1) (b), 80(a), proviso, 80(b), 81, and proviso to para. 1 of the 1st Part of Second Schedule to Law 33 of 1967 - Alleged improper behavior of Applicant towards Respondent No.1 (Minister of Health) - Reference of the matter by Respondent No.1 to Respondent No.3. (Public Service Commission), via Respondent 2, (Council of Ministers), for inquiry under section 80(b) of the Law - Course adopted clearly warranted by the proviso to section 80(a) and by the proviso to paragraph of the 1st Part of the Second Schedule to the Law.

Public Officers - Disciplinary offences under section 58(1)(e) of the Public Service Law, 1967 (No.33 of 1967) - A Minister is a superior of a public officer working in the Ministry - No distinction to be drawn between a public officer and a Minister for the purposes of section 58(1)(e) of the Public Service Law, 1967 (No. 33 of 1907).

Public Service – “Appropriate authority”, as defined in section of the Public Service Law, 1967 (No. 33 of 1967) - Minister is an appropriate authority by virtue of such definition, but he acts “usually” through his Director-General.

Words and Phrases – “Appropriate authority” in section 2 of the Public Service Law, 1967 (No. 33 of 1967).

L. Clerides and A. Paikkos, for Applicant.

K. Talarides, Senior Counsel of the Republic for Respondents.

JUDGMENT

The following Judgment was delivered by: -

TRIANTAFYLLIDES. J.: On the 27th April, 1968, the Court gave, in this case, a

decision on preliminary legal [*790] issues; its contents need not be repeated in this Judgment; they should he read together with it.

As a result of such decision the case proceeded to a hearing regarding, only, the validity of the decision of Respondent 1 (the Minister of Health) to refer to Respondent 3 (the Public Service Commission), via Respondent 2 (the Council of Ministers), the matter of certain conduct of the Applicant, towards Respondent 1, on the 1st November, 1967.

It is being alleged, against the Applicant, that on the said date, and in the presence of, inter alia, the Director-General of the Ministry of Health and other senior officers thereof, he behaved improperly towards Respondent 1. C by insulting him - in breach of his duty under section 58(1)(e) of the Public Service Law, 1967 (Law 33/67).

For the purposes of this case, and of this Judgment, it has been assumed that the accusation made against the Applicant is a correct one; but such assumption should not, of course, prejudice, in any way, the issue of whether or not the Applicant did in fact misconduct himself on the 1st November, 1967.

It has, first, been submitted by counsel for the Applicant that the conduct attributed to the Applicant could not constitute a disciplinary offence, under section 53(1)(e) of Law 33/67, because Respondent 1, being a Minister, and not a public officer, could not be considered to be a superior of the Applicant in the sense of such provision.

Under this provision a public officer has a fundamental duty to behave in a proper manner towards his superiors, his colleagues and the public; and, by virtue of section 73(1)(b) of the same Law, disciplinary proceedings [*791] may be instituted against him if he acts in a manner amounting to a breach of such duty.

It is correct that of or many purposes, a distinction has to be drawn between a public officer and a Minister, but it would be an untenable interpretation of section 58(1)(e) of Law 33/67 to hold that a Minister is not a superior of a public officer working in his Ministry; a Minister is the Head of his Ministry and is responsible for its proper functioning (see Article 58 of the Constitution). It would, indeed, lead to an absurd situation to interpret section 8(1)(e) as not including a Minister within the ambit of the superiors of a public officer, because this would mean that, C though such an officer if he insults his Director-General may be faced with disciplinary proceedings, he can insult his Minister without being subject to any disciplinary sanction.

The first submission of counsel for the Applicant cannot, therefore, be sustained.

The next submission of counsel for the Applicant was that Respondent 1 was not the appropriate authority which could act under section CO of Law 33/67; it has been contended that such authority was the Director-General of the Ministry of Health.

The "appropriate authority" is defined in section 2 of Law 33/67; by virtue of such definition a Minister is an appropriate authority, but he acts "usually" through his Director-General.

It follows, therefore, that Respondent 1 was properly entitled, in law, to act as he did under section 80; [*792] what remains to be examined is whether it was right for him, as a matter of proper administration and natural justice, to act as he did, as the appropriate authority, in the present matter, in which he was involved personally:

Had the conduct in question of the Applicant been dealt with by Respondent 1, summarily, under the provisions of section 80(a), section 81 and the 1st Part of the First Schedule to Law 33/67, I would have unhesitatingly have found that Respondent 1 acted in contravention of the rules of natural justice, as nobody can he a judge in his own cause.

But, instead, Respondent 1 has chosen to let the matter he decided by Respondent 3# an independent organ of the Republic; and in my opinion this was the only proper course which he could have taken in the circumstances.

Also, in view of the nature of the matter, Respondent 1 could not, consistently with the notions of proper administration, instruct the Director-General of the Ministry, a subordinate of his and a person who had witnessed the events of the 1st November, 1967 to deal with such matter summarily, under the aforesaid provisions, or to decide whether to refer it for

decision by Respondent 3.

Another submission made on behalf of the Applicant has been that it was necessary to conduct an inquiry into the matter, in the Ministry of Health, under the provisions of section 80(a) of Law 33/67, before deciding to refer it to Respondent 3 under the proviso to section 80(a). [*793]

In my opinion the proper construction of section 80 leads to the

conclusion that an inquiry under section 80(a) was only necessary if the matter were to be dealt with summarily in the Ministry; otherwise, as the matter was to he referred to Respondent 3 an inquiry had to be carried out, not under section 80(a), hut under section 80(4); and as B Respondent 1 was, himself, the complainant, I am of the view that it was, indeed, proper, in the present instance, to refer the matter to Respondent 2, for the purpose of carrying out the necessary inquiry under section 80(4); the course adopted was clearly warranted by the proviso to paragraph 1 of the 1st Part of the Second Schedule to Law 33/67.

For all the foregoing reasons, and hearing in mind the seriousness of the alleged misconduct of the Applicant, I have no difficulty in finding that Respondent 1 has in no way acted improperly in deciding to refer the matter to Respondent 3 via Respondent 2; and the said seriousness of such matter rendered really unnecessary any reasoned decision of Respondent 1, as to why the reference to Respondent 3 had to he made; this is an instance on which the reason for the course adopted was patently obvious on the face of things.

During the course of the argument certain issues g were raised regarding the validity of ‘the action taken by Respondent 2 in the matter; such issues cannot, however, he pronounced upon in this Judgment, because, as already held in the decision on preliminary legal issues, the action taken by Respondent 2 is not of an executory nature and could not, therefore, he the subject-matter of this recourse; [*794] being of a preparatory nature its validity can be tested if and when a recourse is made against the eventual

decision, in the matter, of Respondent 3.

For all the foregoing reasons this recourse is hereby dismissed.

Regarding costs I have decided to award to Respondents part of their costs, which I assess at 15.

Application dismissed.

Order for costs as

aforesaid.