Court annuls refusal to pay teachers full summer salary despite National Guard service, ruling suspension not termination.

[*429] 1969 March 7

(LOIZOU, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Marcos Panayioti and 12 Others,

Applicants,

and

The Republic of Cyprus, through

The Ministry of Education,

Respondent.

(Case No. 82/67).

Secondary Education Schoolmasters - Called up for service in the

National Guard at the end of the last term of the school year - As a result of

services already rendered during the rest of the school year they became

entitled to

payment of full salary during the months of the summer school vacation -

Section 24 of the National Guard Law 1964 (Law 20/64), (as amended by section 4

of Law 5/66 and section 12 of the Law 70/67) inapplicable.

National Guard Law 1964 (supra) section 24 - Scope of the section the protection of the

interests of employees called up for service in the National Guard - Employment

of such employees not terminated but merely suspended.

L. Papaphilippou, for the Applicants.

G. Tornaritis, for the Respondent.

JUDGMENT

The following Judgment was delivered by:-

LOIZOU, J.: All Applicants are schoolmasters

posted at various secondary schools in the Republic.

With the exception of Applicants 12 and 13, Petros Charalambous and

Finios Demetriou, who at the time of the decision challenged by this recourse

were appointed on a permanent basis, all the others were on probation. [*430]

Exhibit 2 is a photostat copy of a specimen offer for

appointment which contains, in a summary form, the terms of the appointment. It

also expressly provides that the appointment is made in accordance with the

laws and regulations in force. Clause (a) of this document sets out the salary

scale applicable to the post and provides that the salary and cost-of-living

allowance shall be paid in equal monthly instalments at the end of each month.

The appointment was with effect from the 16th September, 1965.

With the exception of three of them, all Applicants were called up for

service in the National Guard on the 16th July, 1966; the other three were called up

on the 5th of the same month having been granted five days’ leave by their

headmasters for the purpose.

By virtue of a decision of the Council of Ministers all Applicants but

one, Applicant 3 Stylianos Papaphotiou, were discharged from the National Guard on

various dates between the 31st October and the 17th November, 1966, as their

services were considered essential.

Schedule “B” attached to the Application, which has been marked as exhibit

1, sets out the names of the Applicants and against each name, in separate

columns, the school at which he was posted at the time, the date of his

appointment, the date he was called up for National Guard service and the date

of his discharge.

It would appear that for the period of the school vacations during

which the Applicants were serving in the [*431] National Guard they were not

paid their salaries. On the 4th January, 1967, counsel for the Applicants wrote

the letter exhibit 3 to the Ministry of Education; the relevant part of this letter reads

as follows:

"Έχω εντολήν των πελατών μου στρατευθέντων καθηγητών των οποίων τα

ονόματα εμφαίνονται εις επισυνημμένον κατάλογον να σας καλέσω όπως πληρώ­σετε εις αυτούς ή εις το γραφείον μου τους μισθούς των από της στρατεύσεως των κατ' Ιούλιον

1966 μέχρι Αυγούστου 1966.

Παρακαλώ σημειώσατε ότι εάν παραλείψετε να συμμορφωθήτε προς τα ανωτέρω

θα ληφθώσι δικαστι­κά μέτρα."

In reply to the above letter the Director-General of the Ministry of

Education wrote the letter dated 30th January, 1967, exhibit 4 which

reads as follows:

"Ενετάλην όπως αναφερθώ εις την επιστολήν σας υπ' αριθμόν Ε.913 και ημερομηνίαν 4 Ιανουαρίου, 1967, εν σχέσει προς το θέμα της καταβολής των

μισθών του Ιουλίου και Αυγούστου 1966, εις πελάτας σας καθηγητάς κληθέντας προς κατάταξιν εις την Εθνικήν Φρουράν, και να πληροφορήσω

υμάς ότι εφ' όσον οι πελάται σας πράγματι υπηρέτουν εις την Εθνικήν Φρουράν κατά τον Ιούλιον

και Αυγουστον του 1966, ούτοι δεν δικαιούνται ει μη μόνον εις τα χορηγήματα τα

προνοούμενα υπό των Κανονισμών δι' όλους τους Εθνοφρουρούς." [*432]

As a result the present recourse was filed. The relief claimed is a

declaration that the decision contained in the letter exhibit 4 is void

as being in excess or abuse or powers and/or contrary to the orders and/or

regulations of the Ministry of Education. Applicants further seek a declaration

that they are entitled to be paid their salaries for the period July-August

1966.

It was contended on the part of the Applicants in support of their case

that in any school-year, but particularly during the school-year 1965-1966, the

end of the school-year is the 10th July, when the school vacations commence,

and as by that date the Applicants had performed their duties as schoolmasters

in full they were also entitled to be paid their salaries in full. Learned counsel

for the Applicants has also stated that the Applicants were posted for National

Guard service near their schools and that some of them rendered services, the

nature of which he did not specify, to their schools during the school

vacations for which they were not paid. He further contended that up to a few

years ago, first he said up to 1962 or 1963 and later up to 1961, the

practice was to pay to the schoolmasters their salaries for the months of July

and August at the end of June in each year, but that since then the practice

has changed and schoolmasters are paid at the end of each month the same as all

other civil servants. But in spite of this, learned counsel argued, during the

months of July and August all teachers are on leave and have no obligation to

work. [*433]

Mr. Frixos Petrides, the Head of the Pancyprian Gymnasium, who was

called as a witness by the Applicants, has confirmed that up to a few years ago

the salary of schoolmasters for the months of July and August was paid before

the closing of the schools for the summer vacations, but that this practice has

been discontinued. This witness has also confirmed that the work of the

school-year ends approximately on the 10th July of each year. Asked whether

schoolmasters have any obligation to work during the school vacations the

witness has, very fairly, replied that he does not know if they have any legal

obligation but that in practice they are very seldom called upon to render any

services. It has happened, the witness said, for him to request schoolmasters

to do some work during the vacations and they complied with his request, but he

could not say if they were legally bound to do so.

Another witness, Mr. Socrates Evangelides was also called for the

Applicants, but his evidence was not very helpful and does not .affect the

issue one way or the other.

On the part of the Respondents it was contended that in view of the

provisions of section 24 of the National Guard Law No.20 of 1964 the employment

of the Applicants, once they were called up for military service, was suspended

and, consequently, so was their salary. Section 24 of the National Guard Law

1964 (as amended by section 4 of Law No. 5/66 and section 12 of Law No. 70/67)

reads as follows:

"24.-(1) Οσάκις

πρόσωπον κληθέν δι’ υπηρεσίαν εν ενεργώ υπηρεσία, της Δυνάμεως δυνάμει των

διατά­ξεων του παρόντος Νόμου εργάζεται εις τακτικήν [*434] απασχόλησαν παρά τινί εργοδότη,

η απασχόλησις αυτού ουδόλως διακόπτεται αλλ' απλώς αναστέλλεται διαρκούσης της

περιόδου καθ' ην το πρόσωπον τούτο τελεί εν τη υπηρεσία της Δυνάμεως ο

εργοδότης όμως υποχρεούται όπως εξακολουθή να καταβάλλη, διαρκούσης της

τοιαύτης αναστολής, την εβδομαδιαίαν αυτού εισφοράν συμφώνως προς το άρθρον 5

του περί Κοινωνικών Αρφαλίσεων Νόμου του 1964 και όπως

καταβάλλη περαιτέρω την υπό του μισθωτού πληρωτέαν εισφοράν συμφώνως προς το ρηθέν άρθρον ανεξαρτήτως του ότι ο μισθωτός ουδεμίαν

υπηρεσίαν παρέσχεν εις τον εργοδότην διαρκούσης της περιόδου ταύτης. "

"Πας εργοδότης όστις παραλείπει ή αμελεί να καταβάλη την υπό του

παρόντος εδαφίου προνοουμένην εισφοράν διαπράττει αδίκημα και υπόκειται εν περιπτώσει καταδίκης του εις τας υπό του άρθρου 73 του περί Κοινωνικών Ασφαλίσεων Νόμου του 1964 προνοουμένας ποινάς και υπόκειται περιπλέον εις τας λοιπάς διατάξεις

του άρθρου τούτου. "

"(2). Παv πρόσωπον αναφερόμενον εν τω εδαφίω (1) εντός ενός μηνός

από της απολύσεως ή αποστρατεύσεως αυτού αιτείται παρά του εργοδότου όπως

προσλάβη αυτόν εις την απασχόλησιν εις ην ησχολείτο παρά τω εργοδότη προ της στρατεύσεως αυτού και ο

εργοδότης υποχρεούται όπως προσλάβη τούτον εις την τοιαύτην ή παρομοίαν απασχόλησιν

υπό δρους ουχί ολιγώτερον ευνοϊκούς των όρων υφ' ους θα ειργάζετο εάν δεν εκαλείτο να υπηρετήση και εις [*435] περίτωσιv καθ' ην η τοιαύτη απασχόλησις θα ήτο αορίστου

διαρκείας δια περίοδον ουχί ολιγωτέραν των εξ μηνών. "

"(3) Δια τους σκοπούς

του παρόντος Νόμου - τακτική απασχόλησις σημαίνει εργοδότησιν εις μόνιμον θέσιν ή εργοδότησιν εις προσωρινήν θέσιν διαρκέσασαν πέραν των

εξ μηνών". (In fact the second

paragraph of subsection (1) was only enacted on the 10th November, 1967, and

was not, therefore, in force at the relevant time, but it does not in any way

affect the issue in the present case).

"

It is, in my view, abundantly

clear from the wording of the above section read in conjunction with sections

23 and 28 and the regulations made thereunder that suspension of employment of

the employee entails suspension of the payment of his salary by the employer and this, quite obviously, in view of the fact that the employee conscript

no longer renders any services to his employer.

It is equally clear that the scone of the section is to protect the

interest of employees called up for service in the National Guard by ensuring

that their absence from work does not bring their employment to an end but only

suspends it for the duration of the period of their service so that when they

are discharged or demobilized they will not find themselves out of work.

The question that arises is whether in the somewhat peculiar

circumstances of the present case the employer, the [*436] Respondents, were

entitled to suspend payment of Applicants’ salaries for the months of July and

August on the ground that they were called up for

service in the National Guard. I say peculiar circumstances because it is an

undisputed fact that as from approximately the 10th July in each year the

schools close for the summer vacations and the work of the schoolmasters comes

to an end but they, nevertheless, continue to get their salaries while they are

on vacation.

Quite probably the summer and other vacations that school teachers

enjoy are considered to be in the nature of leave and this may be the reason

why they are entitled to only 14 days leave during the rest of the school year

as against the 42 days in the case of other government servants. But I do not

think that we need go into this matter for the purposes of this case. The fact

remains that during the summer months schoolmasters have the benefit of some

two months of school vacations and that if the Applicants in the present case

had not been called up for National Guard Service they would be enjoying their

holidays and at the same time they would be paid their salaries at the end of

July and August. It seems to me a little odd to hold that because they were

called up for service in the National Guard they should be deprived of the two

months salary to which, in my opinion, they became entitled as a result of the

services they had already rendered during the school year and which (salary) they

would have got whilst on vacation. It is interesting to note that under section

31 of Law 10 of 1963 pregnant schoolmistresses are granted eight weeks

continuous leave of absence i.e. four weeks before delivery and four weeks

[*437] after delivery and that whereas they get their full emoluments if the

leave happens to be during the school vacations they only get

half of their emoluments if the birth occurs and, therefore, the leave is

granted at any time during the rest of the school year. The provisions of this

section, in my view, to a certain extent, support the view that the

services rendered by schoolmasters during the rest of the school year entitle

them to full salary during the period of the summer school vacations or in

other words that by their work during the rest of the school year they earn the

right to full salary during the summer school vacations.

With regard to section 24 of the

National Guard Law I think that it is not open to the Respondents, in the

special circumstances of this case, to invoke its provisions which, as stated

earlier on, were enacted for the protection and the benefit of employees called

up for

military service and twist them in such a way as to operate to the disadvantage

of those whom legislature intended to protect and benefit by its enactment.

For all the above reasons I am of the view that the Respondents wrongly

refused to pay Applicants their salaries for the months of July and August and that, consequently,

this recourse must succeed. In all the circumstances I consider that

Respondents should pay the costs of these proceedings.

In the result the decision challenged by this recourse is annulled.

Order for costs as above.

Sub judice decision annulled; order for costs as aforesaid.