Dismissal of co-operative officer under rule 89 is a public law act reviewable under Article 146 Constitution.

[*94] 1965 February 9

(TRIANTAFYLLIDES, J.)

REVISONAL JURISDICTION

Nicos A. Nicolaides, of Kyrenia,

Applicant,

and

The Greek Registrar of Co-operative Societies and/or

The Officer and Greek Registrar of Co-operative Societies,

Respondent.

(Case No. 241/63)

Co-operative Credit Societies - Dismissal of Officers - Preliminary legal issues.

Co-operative Societies Law, Cap. 144,section

54 and the Co-operative Societies Rules, rule 89 - Dismissal of an Officer of a co-operative society under rule 89 an 'act' or 'decision' within the domain of public law and not of private law.

Constitutional Law - Constitution of Cyprus, Article 146 - Exercise of power of dismissal of an Officer under rule 89 of the Co-operative Societies Rules an executive or administrative act within the meaning of such Article - Presumed acceptance by Applicant of the said power under rule 89, no bar to the filing of a recourse under Article 146, for testing the validity of the exercise of such power.

Fr. Markides, for Applicant.

L. N. Clerides, for the Respondent.

RULING

In this Case the Applicant applies for a declaration that the decision of Respondent, as contained in a letter dated the 6th November, 1963, is null and void. [*95]

By the said decision Respondent dismissed Applicant from the office of secretary of a co-operative society and terminated his membership on the committees of a number of other co-operative societies.

By an Opposition of the 2nd January, 1964, the following two legal objections were raised, inter alia:-

(1) That the decision of Respondent to dismiss Applicant is not an executive or administrative act within the meaning of Article 146 of the Constitution.

(2) That the Applicant, by accepting employment, has entered into a legal relationship with Respondent, one of the terms of which was the power of dismissal exercised by Respondent.

The above two legal objections of counsel for Respondent were heard, on the 25th January, 1965, with the consent of both counsel, as preliminary legal issues.

It is common ground that the Respondent in this Case has acted, in dismissing Applicant as above, under rule 89 of the Co-operative Societies Rules, under which he may remove any member of the committee or council or any officer of a society, who in his opinion is unfit to discharge the duties of his office.

The said Rules were made under section 54 of the Co-operative Societies Law Cap. 114 and particularly rule 89 is clearly related to the rule-making power under section 54(2)(j).

In determining preliminary objection (1) I

have to decide whether the exercise of the particular power, under [*96] rule 89, has resulted in a decision or act in

the domain of public law or in the domain of private law. If the latter is the case then it is clear that no recourse lies under Article 146, in view of the nature of the competence under such Article. (See HadjiKyriacou and HadjiApostolou, 3 R.S.C.C. p. 89 at p. 90 and Valana and The Republic,

3 R.S.C.C., p. 91 at p. 93).

The same organ may be acting either in the domain of private law or in the domain of public law, depending on the nature of its action. This is clearly stated in the aforesaid two cases of HadjiKyriacou and Valana and has been, also, recognised under the jurisprudence of the Greek Council of State. (See Conclusions from the Jurisprudence of the Council of State, 1929-1959, p. 126).

The function of Respondent under rule 89 is one which, in my opinion, has as its primary object the promotion of a public purpose viz. the proper functioning of co-operative societies. Such an object has been treated as a characteristic of an act or decision in the domain of public law in Valana and the Republic (above).

An order made under rule 89 is, also, a unilateral authoritative pronouncement and thus it possesses another of the essential characteristics of an administrative act.

(See Forsthoff on the Administrative Act

(1963) p. 6).

It is rather significant that in Greece the supervision and control of agricultural co-operatives, which has been entrusted to the Agricultural Bank, is being regarded as a matter of public administration. (See [*97] Conclusions from the Jurisprudence of the Council of State, 1920-1959, p. 126, and Decision 191/1931 of the Greek Council of State).

I have, of course, borne in mind that the legislation in Greece concerning co-operative societies is not the same as our own, but I do not think that anything should turn on such a difference, because what we are concerned with is the true juridical nature of action of a certain kind to be determined on the basis of general principles of law and not as a result of specific provisions.

As stated by Kyriakopoulos on Greek Administrative Law, 4th edition, volume II, p. 158, the aforesaid supervision and control is exercised by the Agricultural Bank by unilateral acts compulsory for the co-operatives; in this respect a close similarity exists with the nature of decisions or acts under our own rule 89.

Furthermore, the power under rule 89 is, in its true nature, a power exercised by Respondent as an organ of government, in controlling co-operative societies. Such power of control has been granted by Article 89 of the Constitution to the Communal Chambers - in the particular case to the Greek Communal Chamber - and as a matter of fact the said Chamber by Law 7/61, enacted under Article 87 (1) (h), has provided for an Office of Co-operative Development with the Respondent at its head.

For all the above reasons I have reached the

conclusion that an act or decision of the Respondent under rule 89, having as its primary object the promotion of a public purpose, being an unilateral authoritative pronouncement [*98] and being, also, an instance of governmental control of co-operative societies, is an act or decision in the domain of public law and subject to the competence under Article 146.

Counsel has referred me, in argument, to the judgment in Petrou and the New Co-operative Credit Society of Karpashia, (3 E.S.C.C, p. 58). It was submitted that, in view of the nature of co-operative societies, it had been laid down in the said judgment that express provision was required to place a matter connected with co-operative societies in the domain of public law. In my opinion the said case is clearly distinguishable because what was involved therein was a function of a co-operative society itself, viz. in relation to the admission of members, whereas in this case what is involved is a function of an organ exercising control over co-operative societies. Admission of members to a society is by its very nature a matter of private law, whereas an order under rule 89 is by its very nature a matter in the domain of public law; therefore, no legislative provision is required to place it in such domain.

Preliminary objection (2) cannot be sustained either, in view of the reasons given hereinafter.

There is no doubt that, as held also in The Co-operative Grocery of Vasilia Ltd. and Ppirou. (4 R.S.C.C. p. 12 at pp. 19-20), anybody who accepts employment with a co-operative society, such as Applicant, must be presumed to have entered voluntarily into a legal relationship. I agree that, as with section 53 of Cap. 114 in the said case, similarly rule 89 in the present Case must be deemed to have [*99] formed part of the terms of such relationship. But the matter cannot be carried further than that and it cannot, thus be held that it has been accepted as part of such legal relationship that any order made under rule 89 shall be immune from proper judicial control. Such a term, moreover, whether express or implied, would have been invalid in view of direct conflict with Article 146, whereas in the abovereferred to case of The Co-operative Grocery of Vasilia Ltd., what was involved was not immunity from judicial control but the validity of the procedure of arbitration, under section 53 of Cap. 114, and it was found that it was not contrary to Article 30 of the Constitution.

In this respect it is relevant to refer to the case of Rossides and the Republic, (3 R.S.C.C. p. 95 at p. 97). In that case it was indeed held that the enactment of Article 125 of the Constitution could not confer greater security of tenure on an employee of the Electricity Authority than what he enjoyed before the coming into operation of the Constitution but it was not held then - and it could not have been held - that the mere fact that the employment of the employee concerned could be terminated in a certain way, viz. by the giving of a month's notice, precluded him from having a recourse to this Court under Article 146. Likewise in the present Case it cannot be held that the presumed acceptance by Applicant, as part of the terms of his tenure of office, of the power under rule 89, prevents him from testing the validity of the exercise of such power by proceedings under Article 146.

For the above reasons it is directed that this recourse should proceed to trial on the remaining issues.

Order as above.