Dismissal of appeal confirming dismissal power under Rule 89 is a public law act subject to Article 146.

[*345] 1965 April 15

(ZEKIA, P., VASSILIADES, MUNIR, JOSEPHIDES,JJ.)

APPELLATE JURISDICTION

The Greek Registrar of the Co-operative Societies and/or

the Commissioner and Greek Registrar of

Co-operative Societies,

Appellant (Respondent),

and

Nicos A. Nicolaides,

Respondent (Applicant).

(Revisional Jurisdiction Appeal No.1,

Co-operative Credit Societies - Exercise of power of dismissal of Officers under rule 89 of the Co-operative Societies Rules - An act or decision under rule 89 is an act or decision in the domain of public law and therefore, subject to the competence under Article 11+6 of the Constitution of the Republic - Presumed acceptance by Applicant, as part of his tenure of office, of the power under rule 89, does not prevent him from testing the validity of the exercise of such power by proceedings under Article 146.

L. Clerides for the Appellant.

Fr. Markldes for the Respondent.

JUDGMENT

ZEKIA, P.: The judgment of the Court will be delivered by Mr. Justice Munir.

MUNIR, J.: This is an appeal from a Ruling of a Judge of the Supreme Court, which was made on the 9th. February, 1965, in the

course of the hearing by him of Application No. 241/63* being a recourse under Article 146 of the Constitution. [*346]

The learned Judge in his said Ruling was determining the following two legal objections which had been raised by the Appellant (who is the Respondent in the said recourse), and which, with the consent of both counsel, were being determined as preliminary legal issues:

"(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 learned Judge, for the reasons given in his Ruling, came to 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 promouncement 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", and, having ruled that neither of the two above-mentioned preliminary objections could be sustained, directed that the recourse should proceed to trial on the remaining issues.

The Appellant (Respondent) now appeals from the said Ruling to this Court on the following three grounds:-

"(a) The Honourable Court wrongly ruled that the decision of Respondent to dismiss Applicant lies [*347] within the domain of public law and as such falls within the provisions of Article 146 of the Constitution of the Republic of Cyprus.

(b) The Ruling of the Honourable Court that Applicant though accepting to serve with a Co-operative Institution he did not enter into such legal relations with Respondent so as to accept the right of dismissal to the Respondent by virtue of the Co-operative Societies Law, Cap. 114, and the regulations made under it, is wrong in law because among other points it is contrary to the spirit and the letter of the decisions of the Supreme Constitutional Court in the Case Petrou v. The Karpashia New Co-operative Credit Society (3 R.S.C.C., page 5S), the Co-operative Grocery of Vasilia v. Ppirou (4 R.S.C.C., page 19-20).

(c) Taking into account all the circumstances of the Case the Honourable Court should, have arrived· at the conclusion that it had no jurisdiction to hear the recourse of the Applicant".

The first submission of counsel for Appellant was that co-operative societies registered under the Co-operative Societies Law, Cap. 114 not authorities exercising "executive or administrative authority" in the sense of Article 146 and that matters concerning such co-operative societies fall within the realm of private law and not within the realm of public law. In support of this submission counsel cited the case of Elias Petrou and others of Karpashia [*348] and The New Co-operative Credit Society of Karpashia, (3 R.S.C.C. p.58 at p.59) in which the Supreme Constitutional Court held that "Co-operative societies registered under Cap.114 are associations of persons for the promotion of the economic interest of their members and, unless otherwise provided, are not, by their very nature, authorities exercising 'executive or administrative authority', in the sense of Article 146" and that the particular decision of the co-operative society which was the subject-matter of that recourse was not "a decision of an authority 'exercising any executive or administrative authority', in the sense of Article 146". In support of this contention counsel for Appellant also cited the Case of the Co-operative Grocery of Vasilia and Haralambos N. Ppirou and others (4 R.S.C.C., p.12 at p.19) and the case of Valana and the Republic (3 R.S.C.C., p.91). In this connection counsel for Appellant also referred the Court to Kyriskopoulos on Greek Administrative Law, 4th edition, volume II at pp.219, 221-223 and 227,

and also referred to the Decisions of the Greek Council of State Nos. 566 of 1934, 149 of 1939, and 191 of 1931 (Conclusions from the Jurisprudence of the

Greek Council of State, 1920 to 1959, p. 126).

The above authorities cited by learned counsel for Appellant, and particularly the decision of the Supreme Constitutional Court in the case of Elias Petrou and others of Karpashia and The New Co-operative Credit Society of Karpashia (cited supra), might have been more to the point had the case before us been concerned with an act or decision of a co-operative society. In this case, however, the decision which is the subject-matter of this recourse and [*349] consequently of this

appeal is not the act or decision of a co-operative society but is a decision of the Greek Registrar of Co-operative Societies. The point

in issue in this case, therefore, is not the nature or character of a particular act or decision of a co-operative society, as such, but the nature or character of the particular decision in question of the Greek Registrar of Co-operative Societies, which he took, in exercise of the powers vested in him by rule 89 of the Co-operative Societies Rules, when he decided to dismiss the Respondent (Applicant in Case No.224-1/63) from the office of secretary of the Co-operative Society of the Kyrenia Co-operative Union for the Marketing of Carobs.

Counsel for Appellant subsequently referred in his argument to the dual capacity of legal persons and cited again from Kyriakopoulos on Greek Administrative Law, 4th Edition, volume II, p.227, and drew an analogy between the Agricultural Bank of Greece, some of the functions of which (e.g. its ordinary banking business) come within the realm of private law while certain other functions might come within the realm of public law. In this connection counsel for Appellant also referred to cases cited in the Digest of Decisions of the Greek Council of State, 1929 to 1959, at p. 126.

Counsel for Respondent (Applicant in Case No. 241/63) was only called upon by this Court to address it on the question of the status and character of the office of the Greek Registrar of Co-operative Societies and the nature and character of the particular decision in question taken by the said officer under rule 89 of the Co-operative Societies Rules, Counsel for Respondent submitted at the [*350] outset

that in paragraph 3 of the letter No. 20/44. of the 21st October, 1963, addressed by the Greek Registrar of Co-operative Societies to the

Respondent (Applicant) (Exhibit 2), the Registrar himself must be taken as conceding that he was treating the question of the proposed dismissal of the Respondent (Applicant) as a matter coming within the realm of public law. Counsel for Respondent also referred to Kyriakopoulos on Greek Administrative law, 4th Edition, volume II at p.158 and to various other authorities.

In the opinion of the Court it is primarily the nature and character of a particular act or decision which determines whether or not such act or decision comes within the scope of paragraph 1 of Article

146 of the Constitution. Such an issue is one which must be decided on the merits and in the circumstances of each particular case and having due regard to such relevant factors as the office and status of the organ, authority, person or body performing such act or taking such decision, as well as to the circumstances and contest in which such act was performed or decision taken. As pointed out by the learned Judge in his Ruling (at p.l6 of the appeal record) 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". Ultimately, what is the important and decisive factor in this respect is the nature and character of the particular function which is the subject-matter of a recourse.

The particular

decision, which is the subject-matter of these proceedings, was one taken under paragraph (1) of rule 89 of the Co-operative Societies Rules, which provides, inter alia, that -

"...the Registrar may by order under his hand [*351] remove any member of the committee or council or any officer of the registered society who in his opinion is unfit to discharge the duties of his office".

Having given careful consideration to all that has been said on behalf of the Appellant by his learned counsel as well as to the authorities cited by him, this Court sees no reason for differing from the opinion expressed by the learned Judge in his Ruling (at p.16 of the appeal record) that the function of Respondent (Appellant) under rule 89 is one which "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" (cited supra).

As has been pointed out by the Supreme Constitutional Court in its Decision in the Case of John Stamatiou and The Electricity Authority of Cyprus (3 R.S.C.C., p. 44, at pp. 45-46) -

"Whatever the general and predominant character of the Respondent might precisely be it is only relevant for the purposes of this case to consider whether, in relation to the particular function which is the subject-matter of this recourse, the Respondent was acting in the capacity of an 'organ, authority or person, exercising any executive or administrative authority' in the sense of paragraph

1 of Article 146". [*352]

Likewise, in this case, whatever the general or predominant character of the Greek Registrar of Co-operative Societies might be - and as pointed out by the learned Judge in his Ruling (p. 17 of the appeal record) the Respondent in exercising the power in question vested in him by rule 89 was, in this instance, doing so "as an organ of government", with which view we agree - and whatever the general or predominant character of co-operative societies themselves generally might be, all these factors are only relevant for the purposes of deciding whether, in relation to the particular function which is the subject-matter of these proceedings (namely, the exercise of the power of dismissal under rule 89), the Registrar was acting, in that instance, in the capacity of an "organ, authority or person, exercising executive or administrative authority" in the sense of paragraph 1 of Article 146.

We agree with the conclusion reached by the learned Judge, and with his reasoning for doing so, "that an act or

decision of the Respondent under rule 89, having as its primary object the promotion of a public purpose, being a unilateral authoritative pronouncement 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".

We also agree with the learned Judge that preliminary objection (2) cannot likewise be sustained for the reasons given by him in his Ruling.

We, therefore, consider that this appeal cannot succeed and it is accordingly dismissed with costs.

Appeal dismissed

with costs.

* Ruling published in (1965) 2 J.S.C.. n-26.