Cyprus Supreme Court annuls Board decision for factual misconception and orders re-examination ab initio.

[*103] 1964 October 31

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION.

In the matter of Article 146 of the Constitution.

Theocharis Dafnides,

Applicant,

and

The Republic of Cyprus, through the

Board for the Reinstatement of

Dismissed Public Officers,

Defendant.

(Case No.203/62).

Dismissed Public Officers Reinstatement Law, 1961 (Law 48/61) - Claim for reinstatement -

Decision of the Respondent Board reached under a misconception of the factual situation in the matter, null and void. Case of Applicant to be re-examined ab initio and in the light of the proper facts.

E. Emilianides, for the Applicant.

K.C. Talarides, Counsel of the Republic, for the Respondent.

JUDGMENT

In this recourse Applicant is complaining against the

decision of the Respondent Board, to the effect that he is not an entitled officer under the Dismissed Public Officers Reinstatement Law, 1961 (Law 48/61). [*104]

The said decision was communicated to Applicant in a letter dated the 18th July, 1962; according to the evidence of the Chairman of the Respondent Board there does not exist any other document or entry in any record in relation thereto. The decision was reached at a meeting of the Respondent Board and communicated afterwards by the said letter.

At the hearing of this Case on the 1st September, 1964, it was common ground between counsel for both sides that Applicant was compelled by his British superiors through psychological pressure, to retire in June, 1956, 3½years 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 in section

2 of Law 48/61.

In considering this Case with a view to delivering Judgment I had reached the conclusion that in spite of the consensus of counsel for the parties, concerning its salient aspects, I was bound, as an administrative Court, to inquire further into certain aspects of the matter, and in particular into the fate of any relevant records of5 and the actual course of proceedings followed by, the Respondent Board.

The proceedings were, therefore, re-opened pursuant to a Ruling delivered on the 7th September, 1964, and after some delay, due to difficulties arising in serving the necessary summons, the Chairman of the Respondent Board came before the Court on the 19th October, 1964, to testify in relation to the matters to be inquired into further. He did his best to assist the Court within the [*105] limited means at his disposal. As explained by him no minutes were kept and no formal decisions were drawn up but afterwards letters were written communicating and embodying the Board's decisions; copies of the letters were kept by way of record of the decisions, The procedure followed was for the Board to meet and consider each application before it on the basis of anything addressed to it by the applicant concerned, as well as, of the personal file of such applicant obtained from the Department where he was employed before his services were terminated, and this procedure was also followed in relation to the case of Applicant.

The absence of minutes, of a formally drawn up reasoned

decision or of any other record of the Respondent Board renders the task of the Court very difficult. One of the purposes for which authorities should always see that all necessary records are kept in relation to their actions is in order to enable such actions to be submitted, if necessary, to the appropriate review either hierarchically or judicially.

It is, in any case, clear from the evidence of the Chairman of the Respondent Board that the decisive factor contributing to the refusal of Applicant's application for reinstatement under Law 48/61 was that he had been re-employed by the British after his retirement. It is not disputed that he was re-employed on a casual basis in relation to provisioning matters and that he was again dismissed after about 11/2 or 2 months. Nevertheless, the Board thought that a person who was later re-employed, as Applicant was, could not have been forced to retire [*106] because the British did not trust him.

Having considered all relevant circumstances of this Case, including the evidence adduced at the Presentation, having paid also due regard to the weighty consensus of the submissions of counsel for both sides, I have reached the conclusion, in agreement with counsel, that Applicant has succeeded to discharge the onus of showing that the decision of the Respondent Board has been reached under a misconception of the factual situation in the matter, As, fairly, pointed out by counsel for Respondent, himself, the re-employment of Applicant does not militate against the conclusion that he was forced to retire, because he may have not been wanted in the Police but this does not mean that he was not to be given any other unconnected work.

Even if it had only appeared reasonably probable and not certain, that the decision concerned has been reached on a misconception of the true factual situation, it would still have been proper to annul the said

decision so as to enable the Board to examine the facts without any room for doubt being left. (Vide the Judgment in Photos Photiades and Co. and The Republic, Case 47/63, not yet reported, adopting principles as set out in Stasinopoulos on "The Law of Administrative Acts" (1951) p.305).

In this Case there exists in my mind no mere probability but substantial certainty that the Respondent Board misconceived the factual situation in treating the re-employment of Applicant as the key to the problem. It is, in my opinion, only a secondary aspect of the matter and it ought to have been treated as such. [*107]

As the sub judice decision of the Respondent Board has been reached because of the aforesaid misconception it is hereby declared to be null and void and the Board has to re-examine the case of Applicant ab initio. It is for the Board to reach a decision afresh in the light of the proper facts and, of course, by a correct application of Law 48/61.

In deciding this Case I have kept constantly in mind that it would not have been open to me to interfere with the decision of the Board had it been only a case of an erroneous, in my opinion, subjective evaluation of the facts. But I have reached the conclusion that in this Case it is more than that. It is a case of a mistaken objective understanding of facts leading to a misconception concerning the nature of the case. It was wrong, in an objective and not only in a subjective sense, for the Board to treat the subsequent short re-employment of Applicant as determining the true circumstances in which he retired.

In all the circumstances of this Case I have decided also to direct the payment of £40 costs to Applicant by the Republic, on behalf of which the Respondent Board was acting, partly in respect of costs reserved on past occasions during the proceedings. The amount of £40 is not the full amount of costs to which Applicant would be ordinarily entitled but I have taken into account that there is no evidence that the Respondent Board has acted with anything but good faith and that counsel for the Respondent very fairly did his best to assist Applicant in whatever respect he felt that Applicant was entitled to succeed.[*108]

Republic to re-pay also all amounts paid by Applicant as day-wages of public officers who gave evidence in this case.

Decision of Respondent declared

null and void; Board

to re-examine the case of

Applicant ab initio.