Court annuls dismissal of public officer after annulment of inquiry, ruling authority cannot switch to court findings.

[*42] 1969 January 7

(STAVRINIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Antonis Mozoras,

Applicant,

and

The Republic of Cyprus, through

The Public Service Commission,

Respondent,

(Case No. 194/66).

Public Officers - Recourse against decision of the Public Service Commission dismissing applicant from the Public Service.

Administrative Law - Public Service Commission - Disciplinary proceedings against public officer convicted of official corruption - Dismissal of officer based on independent inquiry into the facts by the Public Service Commission annulled on grounds connected with mode of inquiry as distinct from

decision to hold one - Not legally possible, after such annulment, to dispense with such inquiry and accept facts as found by Criminal Court.

A. Triantafyllides, for the Applicant.

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

JUDGMENT

The following Judgment was delivered by: -

STAVRINIDES, J.: This case has a long history,which I must summarise as briefly as possible. On October 15, 1963, the applicant was convicted by the District Court of Nicosia of official corruption under s. 100(a) of the Criminal Code [* 43] in that “being employed in the public service, and being charged with the performance of the duties of Driving Examiner by virtue of such employment,” he “did corruptly receive from one Stelios Keravnos of Nicosia the sum of £8 on account of the fact that he the accused in the discharge of his duties of office had passed (three named persons) in their driving test who were students of the said Stelios Keravnos”. He was fined £50. He appealed against the conviction, and the Attorney- General cross-appealed against the sentence ((1963) 1 C.L.R. 114). On the applicant’s appeal the Supreme Court was equally divided. but Wilson, P., being one of the judges who were for dismissing it, the conviction was upheld. On the cross-appeal the judges who were for upholding the conviction considered that the fine should be set aside and a sentence of imprisonment for one year should be substituted for it; the other two judges, because of the view they took of the conviction, expressed no opinion on the cross-appeal, except that Vassiliades, J., as he then was, said that “he shared the view that the offence of bribery, especially bribery by a civil servant was a serious crime and he associated himself with the view that the sentence of £50 fine in that case was inadequate punishment”. Accordingly the fine was set aside and a sentence of one year’s imprisonment was passed on the appllcant in its place. That was in December 12, 1963.

On June 19, 1964, the applicant, who in the meantime, on May 15, had been discharged from prison under a remission of his sentence by the President of the Republic,attended before the Public Service Commission (hereafter “the Commission”) in response to a letter from it informing him that it was [*44] contemplating his dismissal from the public service on account of. that conviction and requesting him to appear before it that day “in order to give reasons why he should not be dismissed”. On the 7th of the following month the Commission decided to dismiss him from the service “as from the date of his conviction, “viz. with effect from October 15, 1963”, and informed him of that decision by a letter dated the 10th of that month. On the 31st of the same month he applied to this court (application No. 93/64) seeking to set aside the dismissal decision on the ground, inter alia, “that the proceedings before the Commission on June 19, 1964, had not been properly conducted”. That application was heard by Triantafyllides, J., who held, in effect, that the proceedings before the Commission had been in the nature of an inquiry into the question whether the applicant had in fact been guilty of the offence of which he had been convicted; that the mode of that inquiry had been irregular; and that although, in accordance with the

decision of the former Supreme Constitutional Court in the case of Morsis v, Republic,

4 R.S.C.C. 133, the Commission had been under no obligation to hold an inquiry, but had been entitled to adopt the District Court’s findings of fact, yet, having chosen to conduct an inquiry and the mode of the inquiry having been irregular, its decision to dismiss the applicant from the public service, having been based on that inquiry, had been irregular and must be annulled ((1965) 9 J.S.C. 957).

The Commission appealed ((1966) 4 J.S.C 504) Two of the four judges who formed the appellate bench, viz, Zekia, P., and Josephides, J., were for allowing the appeal on the grounds, in effect, that the Commission had been bound by the [*45] findings of the District Court, so that it had had no business to hold the inquiry, and that there had been no irregularity about the mode in which it had been conducted. The other two judges, viz. Vassiliades and Munir, JJ., were for dismissing the appeal on the grounds that the Commission had not been bound by the findings of the District Court and that the mode of the inquiry had been irregular. Accordingly the appeal was dismissed, and it is clear that the

decision in Morsis’s case stands.

That being the position, the question arises whether the Commission, once having chosen not to adopt the findings of the District Court but to hold its own inquiry into the question whether the applicant had been guilty of official corruption, having held such an inquiry, and having given a decision based on its result, was entitled, following the annulment of that decision by this court, to go back on that choice and adopt the District Court’s findings. On this question counsel for the applicant cited a decision of the Greek Council of State, No. 923/57, reported in part 2 of the 1958 volume of the official reports of decisions of the Greek Council of State, at pp. 215, 216, which, although not concerned with disciplinary proceedings, is based on a principle that seems to me to be applicable in this case and, with respect, I consider eminently wise. The facts as well as the principle involved sufficiently appear from the third paragraph of the report, which reads:

“...It is true that, in principle, the administration was not bound ...

to fill the vacant posts of Inspector of Elementary Education, it being a matter [*46] for it to determine whether it was

necessary to fill the above vacant posts; yet, having indicated, by the appointment of fifteen inspectors, its intention of filling the corresponding fifteen vacant posts, it was bound, after the annulment of the appointment (of one person), to fill the fifteen posts by the appointment of the applicant, he being the nest on the list, and further to do so on the basis of the position, factual and legal, existing at the time of the original appointment of the fifteen.”

While no reflection is intended to be cast on the Commission, it is clearly undesirable that an administrative authority, having chosen and pursued one of two courses open to it, should be allowed to go back on that choice following a judicial decision declaring that the mode in which that course had been pursued, as distinct from the choice itself, was wrong; and in the absence of any legislative provision to the contrary it seems to me clear that it is not legally possible.

For these reasons I think that the subject decision must be, and hereby is, annulled. It follows that it is unnecessary to go into any of the other arguments advanced on either side. The respondent to pay the applicant £15 costs.

Sub judice decision

annulled; order for costs

as aforesaid.