Supreme Court dismisses appeal on National Guard Law salary claim, upholding employer's right to refuse re-employment.

[*67] 1969 January 9

(TRIANTAFYLLIDES, STAVRINIDES, LOIZOU, JJ.)

APELLLATE JURISDICTION

Andreas P. Loizou,

Appellant-Defendant,

v.

Nicos Th. Poullis,

Respondent-Plaintiff.

(Civil Appeal No. 4626).

National Guard Law 1964 (Law 20/64) as amended by section 4 of the

National Guard (Amendment) Law 1966 (Law 5/66), section 24 sub-section 2 - Payment of salary to ex-conscript for default by his

employer to employ him in the same or similar employment as before his enlistment - Maxim of “ubi jus ibi remedium”.

Practice - Unconstitutionality of Law - Whether appellant entitled to raise issue of unconstitutionality for the first time before Court of Appeal - Question left open.

Constitutionality - Section 24(2) of the National Guard Law (supra) not contravening Articles 25, 26 and 28 of the Constitution.

Observations by the Court as to the desirability that section 24 of the National Guard Law (supra) should have corresponded in full, and not only to a certain extent, to comparable provisions in England,

such as section 1 of the Reinstatement in Civil Employment Act, 1944 and section 35 of the National Service Act, 1948.

J. Kaniklides, for the Appellant.

C. Antoniades, for the Respondent.

JUDGMENT

The Judgment of the Court was delivered by: -

TRIANTAFYLLIDES, J. : This is an appeal, by the appellant-defendant, against the Judgment of the District [*68] Court of Famagusta, in civil action 980/66, by means of which the appellant was ordered to pay to the respondent-plaintiff, as an ex-conscript, the amount of £286 by way of salary for six months, by virtue of the provisions of sub-section (2) of section

24 of the National Guard Law 1964 (Law 20/64) as amended in this respect by section 4 of the National Guard (Amendment) Law 1966 (Law 5/66).

The salient facts of this case are that at the time of his enlistment, on the 27th March, 1965, for service in the National Guard, the respondent was in the employment of the appellant, who is a merchant in Famagusta; the respondent was discharged from military service on the 27th March, 1966, and upon that he requested the appellant (as he was entitled to do under the said sub-section (2)) to re-employ him in the same or similar manner as before; the appellant offered to him employment as a travelling salesman, which the respondent rejected as not being, according to him, the same or similar to his employment, in the office of the appellant in Famagusta,before his enlistment.

By virtue of sub-section (2) of section 24 the respondent was entitled to be re-employed by the appellant in an occupation being the same or similar to the one in which he was employed before his enlistment, and under terms not less favourable than those which he would have enjoyed had he not enlisted; and as his employment, by the appellant, before his enlistment, was of an indefinite duration, the respondent was entitled to be re-employed, as aforesaid,after his discharge, for a minimum period of six months. [*69]

After his non-employment by the appellant the respondent tried to obtain other employment but he did not manage to do so and he remained without work from the 27th March,1966 until the 25th September, 1966, when he left for Athens.

The first matter which we had to examine in this appeal was the contention of counsel for the appellant that there was no remedy provided for, in the legislation concerned, in respect of default by an employer in relation to his obligation under sub-section (2) of section 24 and, that, therefore, an action against the appellant, on the part of respondent, did not lie.

We find this contention entirely untenable; this is a clear case where the maxim “ubi jus ibi remedium” applies; once there was a private right vested in the respondent, by means of the relevant legislation, he could obviously vindicate such right through civil proceedings, as he has done (see, in this respect, inter alia, Halsbury’s Laws of England, 3rd ed., vol. I, para. 10, pp. 7-8).

The next, and the most crucial, issue, which we had to decide, was whether or not the learned trial Judge was entitled to find, as he has done, that the employment offered, by the appellant, to the respondent, after his discharge from the National Guard, was not the same or similar to that in which the respondent was employed before his enlistment:

By paragraph 2 of the statement of claim it was pleaded that the respondent’s duties, before his enlistment, were book-keeping duties, salesman’s duties in the office and clearance of goods from the Customs. [*70]

By paragraph 2 of the statement of defence the contents of paragraph 2 of the statement of claim were admitted; but it was pleaded, further, that the duties of the respondent could have been enlarged at any time, depending on the exigencies of the business of the appellant, and that they would, actually, have been enlarged by the assignment to the respondent of duties of a travelling salesman, had he not enlisted in the National Guard.

The respondent adduced evidence to establish that the duties of a travelling salesman were different from those which he was performing before his enlistment; and such evidence was accepted by the trial Court as correct. Moreover, the appellant admitted, himself, in giving evidence, that the duties of a travelling salesman are “quite different” from those of a clerk in an office.

The trial Court found, on the material before it, that the employment offered to the respondent after his discharge from the National Guard was not, in the circumstances, the same or similar to the one in which he was employed before his enlistment.

We take the view that such a finding was fully warranted; actually, on the basis of the pleadings coupled with the aforesaid admission of the appellant - and, even, without the other evidence to that effect which was adduced by the respondent - we fail to see how the trial Court could have come to any different conclusion.

Of course, we need hardly stress that it depends on the particular circumstances of each case whether the employment offered to a person discharged from the National Guard [*71] by his employer, who was employing him at the time of his enlistment, is or is not the same or similar - in the sense of the relevant legislation - to his employment prior to such enlistment.

Counsel for the appellant has, also, argued that the legislation in question is unconstitutional in that it contravenes Articles 25, 26 and 28 of the Constitution.

Leaving open, and aside, in this Judgment, the issue of whether or not the appellant was entitled to raise such an issue of unconstitutionality for the first time before us, having not done so, at all, before the trial Court, we may say at once that we find no merit in this submission on behalf of the appellant:

Article 25 protects the right to carry on any occupation, trade or business; but it protects this right, as such, against direct interference therewith, and cannot be held to be at all relevant to a case such as the present one where the interference with the business arrangements of the

appellant, by virtue of the provisions of sub-section (2) of section 24, is, indeed, so very indirect and remote (see,inter alia, Police and Liveras, 3 R.S.C.C. 65 and The

District Officer, Nicosia, and Ioannides, 3 R.S.C.C. 107).

Article 26 protects the freedom to contract, but it does not exclude legislation regulating contractual relations (see, also, Chimonides v. Manglis, 1967, 6 J.S.C. 753), as in effect section 24 does, by providing, by means of its subsection (1), that the enlistment of a conscript does not terminate, but only suspends, the service relationship with his employer; and sub-section (2) follows as a corrollary of subsection (1). [*72]

Article 28 safeguards the right to equality,subject always to reasonable differentiations between inherently different situations; and it cannot be said that the appellant, as an employer, is discriminated against,

when compared with other employers in general; the very fact that he is the employer of an enlisted person puts him in a situation

different from that of the employer of a person who has not enlisted, and thus renders him properly subject - from the point of view of Article 28 - to a provision such as sub-section (2) of section 24.

For all the foregoing reasons this appeal fails and it is dismissed accordingly, with costs.

We would add, however, that though we have found in favour of the respondent in this case, because it was plainly our judicial duty so to do, we feel, nevertheless, that as the Law stands, there has not resulted a totally just outcome of the actual situation before us: The appellant has been made to bear undue hardship in having either to re-employ the respondent as a clerk in the office or to pay him six months’ salary; and this was so because, during the time of the military service of the respondent, he had to replace him, and he did replace him, by a female employee, who could hardly be assigned duties of travelling salesman when the respondent claimed back under the Law, his previous employment. Such hardship could have been avoided - (and without the interests of the respondent not being substantially protected) - if our section

24 had corresponded in full, and not only to a certain extent, to comparable provisions in England, such as section 1 [*73] of the Reinstatement in Civil Employment Act, 1944 and section 35 of the National Service Act, 1948; we have thought fit, in the circumstances, to draw the attention of the responsible authorities of the Republic to this aspect of the matter.

Appeal dismissed with

costs.