Supreme Court dismisses administrative recourse against disciplinary suspension due to applicant's death and lack of heir interest.

[*48] 1964 December 18

(TRIANTAFYLLIDES. J.)

REVISIONAL JURISDICTION

Kyriakos Chrysostoraides of Kedares,

Appellant,

v.

The Greek Communal Chamber through

the Disciplinary Council of the

Elementary Schoolteacher,

Respondent.

(Case No. 8/63).

Disciplinary suspension of an Elementary schoolteacher - Recourse against - Intervening death of Applicant - Application for amending title of proceedings - No legitimate interest of heirs of deceased prejudicially affected through such suspension - Proceedings abated by death of Applicant.

L. N. Clerides, for the Applicant.

G. Tornaritis, for the Respondent.

JUDGMENT

TRIANTAFYLLIDES. J. : The Applicant in this Case has applied for a declaration that his suspension, by way of disciplinary measure, from the post of elementary schoolteacher, for a year as from the 8th January, 1963, is null and void. He died, while this recourse was pending, on the 23rd June, 1963. His heirs, and also dependants, are his parents, a brother and two sisters. [*49]

When this Case came up for hearing counsel for Applicant sought to have the title of the proceedings amended by substituting in the place of Applicant the administrators of his estate, his father and mother.

In view of the fact that such amendment would be only a possible procedural corollary of the determination of the substantive issue as to whether or not this recourse could proceed to hearing in spite of the intervening death of Applicant, it was directed that the question of the amendment should be shelved pending the determination of such substantive issue.

On the 3rd October, 1964, I gave a Ruling on the above issue (see Part II (1964) p.7 of the Monthly Publication of Judgments of the Supreme Court). I adopt as part of this Judgment such Ruling and I need not repeat all its contents. I might only state that, as held therein, the relevant principle applicable in case of the death of an applicant during a pending recourse is as follows:-

"When in spite of the death there exists, in relation to the subject matter of such recourse, an existing legitimate interest, vested in the heirs of applicant as their own, which has been directly and adversely affected, then the recourse may be continued by the heirs. If this is not so, then the recourse is abated".

I reached the above conclusion on the basis of the requirements of Article 146(2) of the Constitution, in relation to legitimate interest, and in the light of relevant jurisprudence in Greece (see in, this respect [*50] "Conclusions from the Jurisprudence of the Council of State" 1929-1959 p. 273; Tsatsos on "The Recourse for Annulment before the Council of State" 2nd edition p.238, para.186; and Decisions of the Greek Council of State 574/1936, 93/1949, 1883/1950, 1911/1950, 560/1949, 1031/1949, 31/1957, 104/1957, 139/1957, 232/1957 and 627/1956).

It was held further, in the aforesaid Ruling, that the expectation of claiming damages, after the possibly successful outcome of a recourse, by stepping into the shoes of a deceased applicant, is not a sufficient interest of the heirs entitling them to continue such recourse. They must have an interest of their own.

The Ruling concluded as follows: -

"There now remains, in the light of all the foregoing, to decide whether the heirs of Applicant in the Case have a legitimate interest of their own which has been directly and adversely affected by his suspension, so that they may be entitled to continue this recourse. On this point I would like to hear counsel further. It is e.g. possible that through the suspension of Applicant his heirs have been deprived of some benefit by way of pension, gratuity or other grant to which they would have been entitled under the relevant legislation applicable to Applicant at the time of his death".

At the resumed hearing, counsel for Applicant [*51] contended that the heirs could continue the recourse in view of the following: -

(a) Applicant's suspension may have been treated as a break in service, for the purposes of section 50 of the Elementary Education Law, Cap.166, in such a manner as to deprive the dependants of Applicant of the full gratuity.

(b) The dependants were granted by the Greek Communal Chamber a gratuity of £236.-, under section 62(1 ) of the same Law, and his death while he was suspended may have caused the Chamber to grant only this gratuity, rather than the full amount of commuted pension gratuity or a year's salary which otherwise would have been granted.

(c) The Respondent did not pay the dependants any gratuity in respect of Applicant's service before 1 960.

(d) If the suspension were to be annulled, the dependants would be entitled to claim the salaries which the Applicant would have claimed in such a case, if alive, in respect of the months when he had been treated as suspended. It is convenient, at this stage, to refer to certain exhibits which relate to the points made by counsel for Applicant.

On the 20th January, 1964, the Director of the Education Office of the Greek Communal Chamber informed the father cf Applicant by letter (exhibit 1), that the Committee of Administration of the Chamber had decided to pay to the dependants of the deceased Applicant such part of the gratuity, payable on his death, as was proportionate to his service under the Chamber. [*52]

On the 16th July, 1964, counsel for Applicant wrote to the Education Office (exhibit 3) seeking to know on what ground the amount which was paid to the dependants had been calculated, because he was instructed that a year's emoluments should have been paid by way of gratuity and not a half year's salary. The annual emoluments of Applicant at the time of his demise were £526 (and the dependants received £236).

The Director of the Education Office replied on the 3rd August, 1964 (exhibit 2) stating that the amount paid was calculated in due proportion to the length of service of the deceased Applicant under the Chamber viz. from the 16th August, 1960 to the 23rd June, 1963.

It appears from the above that, in calculating the length of service of Applicant when deciding to pay him a gratuity, the period during which Applicant was suspended i.e. from the 8th January, 1963, until his death, not only was not treated as a break of service, under section

50 of Cap.166, so as to prevent the payment of gratuity, but on the contrary, it was treated as part of the service of Applicant under the Greek Communal Chamber. So, contentior (a) of his counsel, as above, is not borne out.

Coming to contention (b), there is nothing to show that the Respondent decided, because of the suspension of Applicant, to pay the dependants anything less than what they would have been otherwise entitled to.

Counsel for Respondent has stated that any

gratuity due was paid in full. In my opinion the very fact that the [*53] period of service under the Chamber, in respect of

which the gratuity was paid, was taken to extend down to the date of death i.e. the 23rd June, 1963, including thus in such service the period of suspension as from the 8th June, 1963, establishes that the said suspension was not taken into account as a factor reducing the gratuity payable to the dependants. Furthermore, had the contrary been true, the Director of the Education Office, in his letter of the 3rd August, 1964, (exhibit 2), written in answer to the specific enquiry of counsel for Applicant, on the 16th July, 1964, (exhibit 3), concerning the basis of calculation of the actual amount of the gratuity, would no doubt have informed counsel for Applicant accordingly. On the contrary he wrote that the period of service taken into account was the whole service of the Applicant down to the 23rd June, 1963.

Coining then to contention (c) of counsel for Applicant, it is not disputed that the dependants were not paid any gratuity in respect of the service of Applicant prior to 1960, i.e. before the coming into existence of the Greek Communal Chamber on the 16th August, 1960; such a course, however, cannot reasonably be taken to have any connection with the administrative act, the subject-matter for this recourse, and it must be presumed to have been based on the provisions of Article 192 of the Constitution, particularly paragraph 5 thereof, and, therefore, it cannot be said that the heirs of Applicant derive therefrom any interest of their own to continue the recourse against an irrelevant matter such as his suspension. [*54]

There is nothing to prevent an application to the authorities for payment of any balance of the gratuity, in respect of the service of Applicant under the previous British Colonial Government, and T do trust that, in view of what counsel for Respondent has stated, the Greek Communal Chamber will readily agree to any adjustment, if any, that may he found necessary when the respective liabilities under Article 192(5), of the Republic and the Greek Communal Chamber, are finally ascertained.

It may be stated on this point that should it turn out that the Greek Communal Chamber has, in any way, miscalculated what was due by it to the dependants, by way of its share of the gratuity, and refuses to make the necessary adjustment, or should the authorities of the Republic unjustifiably refuse to pay its share of such gratuity, the dependants of Applicant might possibly seek redress by appropriate proceedings, but they cannot pursue such redress in these proceedings; anyhow, I am not prejudging now any of these matters.

To sum up my views on the first three contentions of counsel for Applicant, I say that I am satisfied that the suspension of Applicant did not prejudicially affect any interest of the heirs of Applicant, so as to entitle them to continue this recourse because:-

(a) it was not treated as a break of service under section 50 of Cap. 166 ;

(b) it did not prevent the service of Applicant, down to the time of his death, from being taken into account for the purposes of granting his dependants a gratuity; [*55]

(c) the non-granting of a gratuity in respect of any service before the 16th August, 1960, cannot be relevant to Applicant's suspension.

I am also satisfied that his suspension did not affect the amount of gratuity payable to the dependants of Applicant. This is shown, further, by the following arithmetical consideration.

It is common ground that Applicant was a permanent teacher since 1957; therefore, out of the two possible measures of gratuity, under section 62(1 ) of Cap.166, the most favourable was his annual pensionable emoluments and not a commuted pension, as his years of service were few. In respect of about half of his service (16/8/60-25/6/63) a gratuity of £236 was paid to his dependants and his annual emoluments were at the time of his death £526. So it is clear that the Greek Communal Chamber took as a basis, in calculating the gratuity payable, the most favourable course under section 62(1).

There remains new to deal with contention (d) of counsel for Applicant, i.e. that the dependants of Applicant, if this recourse were to nullify his suspension, would be entitled to claim, through his estate, the salaries between the 8th January, 1963 and the 23rd June, 1963, to which Applicant would have been entitled if he were alive himself.

This matter was already covered by holding, in the Ruling previously given, that the possibility of the heirs claiming damages, which an applicant could have claimed himself, does not create an interest of their own sufficient to entitle them to continue a recourse, after the death of an applicant. [*56]

Furthermore, it must be borne in mind that the suspension of Applicant, like his appointment to which it is intrinsically related, is an administrative act in personam and as such it has ceased to have effect when Applicant died. As the heirs of Applicant have no other interest of their own entitling them to continue the recourse, the proceedings have been deprived of their subject-matter and it is not possible to continue them on behalf, in effect, of the estate of Applicant, so as to enable such estate to seek redress by way of claiming salaries or other damages; in the circumstances the recourse is abated. Such a conclusion has actually been readhed by the Greek Council of State in Decisions 93/1949, 1031/1949, 1883/1930 and 1911/1950. In all these cases it was found that on the death of the applicant the recourse was abated, as it was deprived of its subject-matter and the heirs had not legitimate interest of their own to continue it.

In this respect it may be useful to refer to the following passage by Professor Stassinopoulos, a member himself of the Greek Council of State, in "Law of Administrative Acts" (1951) p.375 under the title of 'Ceasing

of effect of administrative acts' and subtitle 'Disappearance of object of administrative acts':- "Η έκλειψις του αντικειμένου της πράξεως επέρχεται είτε δια του

θανάτου του προσώπου, εις ο αφεώρα, είτε δια της

εκλείψεως του πράγματος, το οποίον ως εκ της φύσεώς της είναι προωρισμένη να

παρακολουθή η πράξις. Εις την πρώτην περίπτωσιν, υπάγονται προσωποπαγείς πράξεις.......... Προσωποπαγείς πράξεις είναι οι διορισμοί δημοσίων υπαλλήλων.......... ως

και γενικώς πάσα πράξις, δια την έκδοσιν της οποίας ελήφθησαν υπ' όψιν στοιχεία [*57] και προϋποθέσεις συνδεδεμέναι προς το πρόσωπον, επ' ονόματι του οποίου εξεδόθη. Δια

του θανάτου του προσώπου τούτου, λήγει ή ισχύς της πράξεως, τα δ' έννομα αποτελέσματα

αυτής δεν είναι δυνατόν να συνεχισθώσιν έναντι των ειδικών ή καθολικών διαδόχων

του προσώπου τούτου. Η λήξις όμως αύτη δεν κωλύει την περαιτέρω παραγωγήν νέων

νομικών συνεπειών, αίτινες είναι δυνατόν να προκύψωσιν εκ της μέχρι τούδε

ισχύος της πράξεως και των ένεκα ταύτης δημιουργηθείσων καταστάσεων και σχέσεων, ως το δικαίωμα ετέρων προσώπων

συγγενών του υπαλλήλου, προς απονομήν συντάξεως, απονομήν βοηθήματος κλπ. Αλλ' αι νομικαί αύται

συνέπειαι δεν αποτελούν συνέχισιν της ισχύος της ληξάσης πράγματι πράξεως, αλλά νέας

σχέσεις, αίτινες επί ιδίωv διατάξεων του νόμου και επί ιδίων ενδεχομένως αυτοτελών διοικητικών

πράξεων στηρίζονται".

("The disappearance of the object of the act supervenes either due to the death of the person, to whom it relates, or due to the disappearance of the thing, to which, because of its nature, it is destined to be attached. In the first category belong the administrative acts in personam ......... Acts in personam are the appointments of public officers....... and in general any act, in the making of which have been taken into account facts and considerations related to the person in connection with whom it has been made. By the death of such person, the effect of the act ceases, and the legal effect thereof cannot be continued against the legatees or residual heirs of the said person. Such ceasing of effect however does not prevent the production further of new legal consequences, which may arise through the till then effect of the act and the [*58] situations or relationships created by it, such as the right of other persons related to a public officer to receive pension or gratuity. But such legal consequences do not constitute a continuation of the effect of the in fact terminated act, but new legal relationships, based on specific legal provisions and possibly on specific self-contained administrative acts").

In the light of all the above reasons I have reached the conclusion that, as no legitimate interest of the heirs of the deceased Applicant has been in fact prejudicially affected through the suspension, the subject-matter of this recourse, these proceedings are abated by his death. No question of their amendment arises in the circumstances.

As regards costs, I think it is proper to make no order in the matter of costs, in view of all the circumstances of this Case and the novelty, in Cyprus, of the issues raised.

Recourse fails and is

dismissed accordingly.

No order as to costs.