Supreme Court dismisses compensation claim as applicant was not a public officer under the 1962 Law.

[*927] 1968 August 31

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

Ioannis Papapetrou,

Applicant,

and

The Republic of Cyprus, through

The Minister of Finance,

Respondent.

(Case No. 311/62).

Entitled Officers - Compensation - Safeguard of rights of persons holding offices in the public service before Independence - The Compensation (Entitled Officers) Law, 1962 (No.52 of 1962) (as amended) - Compensation under section A(1)(b) of the Law - Applicant not a public officer, on the 15th August, 1960, coming within the definition of an ’’entitled officer’’ for the purposes of the Law.

Words and Phrases - "Entitled Officer" and "includes" in the definition of "entitled officer" in section 2 of the Compensation (Entitled Officers) Law, 1962 (No.52 of 1962).

A. Triantafyllides, for the Applicant.

L. Loucaides, Counsel of the Republic, for the Respondent.

JUDGMENT

The following Judgment was delivered by: -

TRLINTAFYLLIDES. J.: In this case the Applicant complains, in effect, that the decision of the Respondent not to pay him compensation under the Compensation (Entitled Officers) Law, 1962 (Law 52/62), as amended by the Compensation (Entitled Officers) (Amendment) Law, 1962 (Law 68/62), is erroneous and should be annulled. [*928]

The hearing of this case commenced together with the hearing of several other similar cases, but, during such hearing, most of the other cases - except this one and four other cases - were settled out of Court, and, as a result, they were withdrawn.

The Applicant, before the 16th August, 1960, when the Constitution came into force, was a Supervisor of Cooperative Societies, working under the then Department of Co-operation. By operation of the Constitution his Department, to the extent to which it was concerned with Greek Co-operative Societies, came under the Greek Communal Chamber.

On the 7th July, 1962, Law 52/62 was promulgated. Such Law was undoubtedly intended to promote the application of provisions of Article 192 of the Constitution, which safeguards the rights of persons holding offices in the public service before the date of the coming into operation of the Constitution. But Law 52/62, being an ordinary legislative enactment, could not validly amend Article 192, which is part of the Fundamental Law of the Republic. Nor can Law 52/62, be, necessarily, treated as dealing fully with all matters within the ambit of such Article; it is to be observed, for example, that the definition of “entitled officer”, in section 2 of Law 52/62, is, on the face of it, different - E in wording at any rate - from the definition of what was a public officer before the 16th August, 1960, for the purposes of Article 192, as such definition is to be derived from the definition of “public service” in paragraph 7(a) of Article 192; and, whether or not the two definitions should be treated as being the same, though differently worded, is a matter [*929] which I leave entirely open at the moment, but about which I should say that, as at present advised, I do have some doubt.

The Applicant, after the enactment of Law 52/62, exercised an option, on the 6th October, 1962, - by means of the appropriate form prescribed, for the purpose, by such Law - and he sought to be paid compensation under the provisions of section 4(1)(b) of the Law; a copy of the said application of the Applicant has been made available, to the Court and to the other side, by Respondent.

The Applicant received a reply from the Director of the Personnel Department - who comes under the Respondent Minister - dated the 15th October, 1962, to the effect that, as on the 15th August, 1960, he "did not hold an office in the public service of the Government of Cyprus he was "not an entitled officer under the said Law" and could not "therefore exercise the option in question".

An "entitled officer" under Law 52/62 is defined, in section

2 thereof, "as including an entitled pensionable officer or an entitled Provident Fund officer"; both the said kinds of officers are defined - again in section 2 of Law 52/62 - as meaning persons who were holding office in a permanent capacity under the Government of the Colony of Cyprus, on the 15th August, 1960.

I might point out that, in my view, the word "includes" in the definition of "entitled officer", in section 2 of Law 52/62, has, when construed in the context of the Law, an exhaustive meaning. (See Dilworth v. Commissioner of Stamps, 1899 A.C. 99, at p. 106). [*930]

It cannot be disputed, that the Applicant was not a public officer, on the 15th August, 1960, coming within the definition of an “entitled officer" for the purposes of Law 52/62; he was not holding a post in a permanent capacity (see the relevant circular of the 20th January, 1947, exhibit 1).

I find, therefore, that his application for compensation, under Law 52/62, was rightly rejected; and it is under that Law only that he had applied for compensation.

During lengthy argument before the Court, counsel for the Applicant has contended that, to the extent to which the definition of "entitled officer", for the purposes of Law 52/62, prevented the Applicant from being compensated, Law 52/62 was unconstitutional, as contrary to Article 192 of the Constitution, because the post which the Applicant was holding on the 15th August, 1960, was, on a proper construction of Article 1.92, a post within the ambit of such Article.

After carefully considering this case - on its proper, in my opinion, basis - I have reached the conclusion that the said issue of constitutionality does not have to be resolved in the present Judgment. As already stated, the Applicant had applied for compensation under Law 52/62; since Law 52/62 cannot, and shouId not, be treated as being exhaustive of the scope of the application of Article 192 - which does not envisage a Law as being necessary for its application - I cannot see how the definition of "entitled officer" in Law 52/62, if it falls short of the whole scope of the application of Article 192, should be held to be unconstitutional; nor does it have to be decided, in this case, whether [*931] or not the Applicant is an officer within the ambit of Article 192, once he has not applied, by means of his application of the 6th October, 1962, for compensation under such Article.

I, therefore, leave the issue, of whether or not the Applicant is entitled to compensation under Article 192, entirely open. It is up to the Applicant, if he thinks that he is within the ambit of such Article - though not within the ambit of Law 52/62 - to apply accordingly.

For these reasons this recourse fails and it is dismissed; but in the circumstances there shall be no order as to costs.

Application dismissed.

No order as to costs.