Cyprus Supreme Court annuls disciplinary decision due to failure to provide investigation reports to the accused officer.

[*1186] 1970 November 11

(TRIANTAFVLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution Lefkos Georghiades,

Applicant,

And

The Republic of Cyprus, through

the Public Service Commission,

Respondent.

(Case No. 179/69).

Administrative Law - Public Officer - Disciplinary offence Section 80(b) of the Public Service Law, 1967 (law 33/67) - Investigation - Officer not heard, by his superiors prior to nomination of Investigating Officers, by way of a preliminary step to the investigation – Course adopted a proper one in view of sections 60, 81 and 82 of the Public Service law (supra) and Regulations 1-4 of Part I of the Second Schedule to the Law - Section 45 of the Law inapplicable - Rules of natural justice do not require a course different from the one adopted.

Administrative law - Public Officer - Disciplinary offence - Investigation under section 80(b) of the Public Service Law 1967 (Law 33/67) - Carried out substantially in a manner compatible with Regulation p. of Part I of the second schedule to the law - No contravention of rules of natural justice.

Administrative law - Public Officer - Disciplinary offence Disciplinary charges -- Framing of - Not necessary to refer to any specific legal Provisions - No material error in relation to the disciplinary charges brought against the applicant, in the instant case, which could lead to annulling his disciplinary conviction in respect thereof.

Natural Justice - Audi alteram partem rule - Applicable to disciplinary proceedings before Public Service Commission Annulment of decision of Commission concerning disciplinary punishment through failure of commission to apply effectively the rule - In that applicant or his counsel were not furnished with copies of the reports of the two investigating officers and documents attached thereto, which v/ere sent to the Commission under section 82(1) [*1187] of the Public Service Law 1967 (Law33/67) - Ignorance by applicant at the material time of the full contents of these reports did severely handicap the exercise by him of his right to be heard in his own defence - Such deficiency of natural justice not made good by subsequent proceeding.

Administrative law - Public Officers - Disciplinary proceedings - Disciplinary punishment imposed.by Public Service Commission - Annulled through/proceeding having been conducted in a manner inconsistent with the combined effect of section 82(1) of the Public Service Law, 1967 (law 33/67) and Regulation 3 in Part III of the Second Schedule to the Law in that evidence in support of the charges brought against applicant, forwarded to the Commission under s. 82(1) of Law 33/67 (supra), were before the Commission but not within the knowledge of applicant and his counsel.

Administrative Law - Public Officers - Disciplinary offence - Decision concerning disciplinary punishment - Annulled through” having been reached without due inquiry because of failure of the Respondent Public Service Commission to study reports sent to it under s. 82(1) of the Public Service Law 1967 (Law 33/67) and the failure of the Commission to make available to applicant all material which was before it.

Public Officer - Disciplinary offence - See under “Administrative Law”. - “Natural Justice”.

Disciplinary Proceedings - See under ’'Administrative law” –

“Natural Justice”.

Due inquiry - See under “Administrative Law”.

A. Hadjiloannou, for the Applicant.

L. Loucaides, Senior Counsel of the Republic, for the Respondent.

JUDGEMENT

The following judgment was delivered by;

TRIANTAFYILIDES, J.: In this case the applicant complains against his demotion, by virtue of a decision [*1188] of the respondent Public Service Commissions to Counsellor, grade A (Consul-General, A), from the rank of Ambassador, in the service of the Ministry of Foreign Affairs.

Such decision (see exhibit AD) was reached on the 30th April, 1969, as a result of disciplinary proceedings against the applicant.

There need not be set out verbatim the four disciplinary charges in respect of which the applicant was punished by the respondent. It suffices only to state that the applicant was charged - mainly - that while he was the Ambassador of the Cyprus Republic, in Moscow, U.S.S.R., he acted, in his official capacity in connection with certain financial transactions involving foreign exchange and in the course of buying and selling cine-cameras and cars, in a manner inconsistent with his duties, responsibilities and status as a public officer and a diplomatic representative of Cyprus.

The first matter with which I have to deal in this judgment is the complaint of the applicant that during all the period of time, from the moment when it first came to the notice of his superiors, that he was allegedly guilty of conduct constituting disciplinary offences and until he was given an opportunity of being heard by investigating officers, Mr. P. Paschalis and Mr. A. Ioannides, appointed for the purpose by the Council of Ministers under regulation 1 in Part I of the Second Schedule to the Public Service Law, 1967, Law 33/67, he was not given by his superiors in the Ministry of Foreign Affairs the chance to try to exculpate [*1189] himself, and, thus, possibly, avoid the institution of, disciplinary proceedings against him before the respondent Commission.

The case of the applicant was placed before the Commission in view of the provisions of section 80 of Law 33/67; it had been referred to it also earlier - before the promulgation of Law 33/67 on the 30th June, 1967 - but after that date the whole process was set in motion all over again under such Law.

Section 80 of law 33/67 reads as follows:-

“80. If it is reported to the appropriate authority concerned that a public officer may have committed a disciplinary offence the appropriate authority shall forthwith –“

“(a) If the offence is one of those specified in Part I of the First Schedule, cause a departmental inquiry to be made in such manner as the appropriate authority may direct and proceed as provided in section 81:”

“Provided that, if the appropriate authority is of opinion that, owing to the seriousness of the offence or the circumstances under which it was committed, it should entail a more serious punishment, it may refer the matter to the Commission, in which case ’it shall proceed under paragraph (b);”

“(b) in any other case, cause an investigation to be made in the prescribed manner and then proceed as provided in section 82: [*1190] Provided that until Regulations are made prescribing the manner of investigations, the Regulations set out in Part I of the Second Schedule amply”.

As, quite clearly, the disciplinary offences which, as reported to the appropriate authority (the Minister of Foreign Affairs) the applicant might have committed, were not amongst those specified in Part I of the First Schedule to Law 33/67, it was necessary to proceed against him in accordance with 'paragraph (b) of section 80; and, therefore, the aforementioned investigating officers were nominated in order to make investigations in the prescribed manner.

In support of the contention that, before investigating officers were nominated, an opportunity ought to have been given to the applicant, in his Ministry, to exculpate himself, reliance has been placed on section 45 of law 33/67, which reads as follows:-

“45. (1) Subject to sub-section (2), confidential reports on all officers shall be prepared and submitted to the Commission annually in the prescribed, manner and by the date field by the Council of Ministers:”

“Provided that until such date is fixed, the annual confidential reports shall be submitted not later than the 31st day of January in each year.”

“(2) Confidential reports shall be submitted at six monthly intervals to the Commission on every officer [*1191] serving on probation. The final report shall be submitted one month before the expiration of the probationary period and shall contain a definite recommendation whether the officer should be confirmed or whether his probationary period should be extended or his service terminated.”

“(3) Where in any special case the appropriate authority concerned considers that its own views on an officer should be brought to the notice of the Commission, nothing in this Law shall preclude such authority from requiring that the confidential report on such officer be transmitted through it for the expression therein of its own views or from sending to the Commission such views, and in any such case the views of the appropriate authority shall form part of the confidential report on the officer.”

“(4) The person preparing a confidential report on a particular officer in which the latter is criticised for negligence, failures or improper behaviour in the performance of his duties must, on the submission thereof, communicate to the officer concerned this part of the report.”

“Within fifteen days of the communication to him, the officer is entitled to require in writing from the competent authority concerned to strike out or modify this part-of the report and the competent authority shall consider the matter and decide thereon”. [*1192]

In my view section 45 is, in the light of its text and object, obviously not applicable to a situation such as the one under consideration in this judgment.

Moreover, there are provisions in jaw 33/67 which clearly tend to show that an officer who is suspected of a disciplinary offence is not to be heard prior to his disciplinary, trial, if the matter is to be dealt with summarily by the appropriate authority under section 81 of the Law, or prior to the commencement of the investigation by an investigating officer, if the case is of such a nature that it may have to be referred to the Public Service Commission under section 82 of the Jaw,

Section 81 of Law 33/67 reads as follows:-

“81. - (l) The appropriate authority concerned shall have power to deal summarily with any disciplinary offences specified in Part I of the First Schedule and to impose any of the punishments specified in Part II of such Schedule.”

“(2) When, as a result of a departmental inquiry carried out in accordance with paragraph (a) of section 80, it appears to the appropriate authority concerned that a disciplinary offence has been committed which can be dealt with summarily, then the officer concerned shall be informed of the case prima facie made against him and shall be given an opportunity of being heard.”

“(3) After hearing the officer concerned, the [*1193] appropriate authority concerned may impose any of the punishments set out in Part II of the First Schedule.”

“(4) Without prejudice to the general power of delegation of the appropriate authority, the of its powers under this section to the Head appropriate authority may delegate any/ of the Department concerned or to any other senior officer who shall be of a higher rank than the officer concerned”.

It is clear from sub-section (2) of section 81 that only after it appears, consequent upon a departmental inquiry, that a disciplinary offence has been committed is the officer concerned to te informed of the case prima facie made against him and to be given an opportunity of being heard.

Section 82 of law 33/67 reads as follows :-

“82.-(l) When an investigation carried out under paragraph (b) of section 80 is completed and the commission of a disciplinary offence is disclosed, the appropriate authority shall forthwith refer the matter to the Commission and shall forward to it –“

“(a) the report of the investigation;

“(b) the charge to be brought signed by the “appropriate authority concerned; and “

“(c) the evidence in support thereof.

“(2) Disciplinary proceedings before the Commission shall commence by the preferment of the charge sent [*1194] by the appropriate authority as in sub-section (1) provided. Within such period as may be prescribed, and until such period is prescribed within two weeks of the date of receipt by it of the charge, the Commission shall cause summons in the prescribed form to be issued to the officer concerned and served upon him in the prescribed manner:”

“Provided that, until the form and the manner of service of summons are prescribed, the form of summons set out in Part II of the Second Schedule may be used and the manner of service therein provided may be followed.”

“(3) The hearing of the case before the Commission shall be conducted and completed in the prescribed manner:”

“Provided that, until Regulations are made in this “respect, the Regulations set out in Part III of the “Second Schedule shall apply.

“(4) In any proceedings before the Commission under this Part the officer concerned may be represented by counsel of his own choice”.

This section has to be read together with section 80 of the same Law (which has already been quoted in this judgment) and with Part I of the Second Schedule to the Law, which reads as follows:-

“Regulations relating to the investigation of offences”

“1. The appropriate authority concerned shall, as [*1195] expeditiously as possible, nominate one or more officers of its Ministry or Office (in this Part referred to as 'the investigating officer') to conduct the investigation. The investigating officer shall be a senior officer who shall be of a higher rank than the officer concerned:”

“Provided that if in any case the appropriate authority considers that it would not be possible, practicable or advisable to nominate an investigaging officer from its Ministry or Office, it shall refer the matter to the Council of Ministers which shall nominate a suitable officer to conduct the investigation.”

“2, The investigation shall be carried out as expeditiously as possible and shall in any case be completed not later than thirty days from the date of the direction for investigation.”

“3. In carrying out an investigation the investigation officer shall have power to hear any witnesses or to obtain written statements from any person who may have knowledge of any of the facts of the case and any such person shall give all information within his knowledge and shall sign any statement so given after its having been read out to him.”

“4. The officer concerned shall be entitled to know the case against him and shall be given an opportunity of being heard.” [*1196]

”5. After the completion of the investigation the investigating officer shall forthwith report his conclusion to the appropriate authority giving full reasons in support thereof and submit ting all relevant documents.”

“6. On receiving the report of the investigating officer, the appropriate authority shall forthwith refer it, with all documents submitted, to the Attorney-General of the Republic together with its views thereon for his advice.”

“7. The Attorney-General of the Republic shall, with all reasonable speed, consider the matter and advise the appropriate authority whsfeh.er a charge may be brought against the officer and, if so, shall draft the charge.”

“8. On receiving the charge drafted by the Attorney-General, the appropriate authority shall sign it and transmit it to the Chairman of the Commission with all documents submitted to the Attorney-General of the Republic.”

When section 80, regulations 1-4 of Part I of the Second Schedule and section 82 of Law 33/67 are read together, it is quite clear that the officer concerned is not to be given an opportunity of being heard, by way of a preliminary step to his disciplinary trial by the Public Service Commission, except at the stage of tie investigation carried out in order to ascertain whether disciplinary charges are to be brought against him. [*1197]

I would even venture t-o observe that even if there were nothing in Law. 33/67 to the contrary effect, it would not be at all proper for a public officer suspected of a disciplinary offence to be told about it prior to the appropriate stage, under the provisions of j aw 33/67 already refer red to otherwise the way would be laid open for a possibly adversely disposed superior to harass a subordinate with unfounded accusations so as to make life for him unbearable.

Nor would I, in any case, be prepared to hold that the rules of natural justice require, in this respect, a course different than the one adopted in the case of the present applicant. The answer to the question as to whether or not such rules - and we are actually concerned here with the "audi alteram partem" rule, in other words with the notion of "fairness" - require a certain course of action to be followed does depend to a great extent on the circumstances of the particular case (see, inter alia, the judgments of Tucker, L.J., in Russell v. Duke of Norfolk ( 1949) 1 All E.R. 109 at p. 118, of lord Jenkins in University of Ceylon v Fernando (1960) 1 All E.R. 631 at p. 637, of Lord Guest in Wiseman v. Borneman ( 1969) 3 All E.R. 275' at 0. 200 as well as of Lord Donovan in the same case at p. 282, and of Lord Guest in Sloan v. General Medical Council (1970) 2 All E.R. 686 at p. 688).

Having, particularly, in mind that the applicant was given an opportunity of being heard at the preliminary stage, when the matter of the commission by him of any disciplinary offence was still being investigated by the two investigating officers appointed for the purposes of Part I of the [*1198] Second Schedule to Law 33/67, I cannot say that it was required by the relevant rule of natural justice that he should have been afforded anearlier opportunity of exculpating himself, even before it was decided to investigate into the commission of any disciplinary offence by him by means of the procedure laid down in the said Part I; to use the words of Lord Guest in the Wiseman case (supra, at p. 281) “there is nothing so unfair” in what the applicant complains of “as to entitle the Court to say that the principles of natural justice were not followed.”

I shall deal next with the applicant’s contention that one of the two investigating officers, 'Mr. Paschalis, did not carry out his duties properly, in that he failed to comply duly with the provisions of regulation R of Part I of the Second Schedule to Law 33/67; the essence of the applicant's complaint in this respect is that - r. Paschalis did not divulge to him the whole case against him, especially as Mr. Paschalis did not show to the applicant the statements obtained in the course of the investigation, nor did he even tell the applicant who the makers of such statements were; instead - it is complained of by the applicant - Mr. Paschalis prepared a form of questionnaire, which was, allegedly, not fully comprehensive and accurate in every respect, and invited the applicant to reply thereto.

Having perused all the relevant material before me and given due weight to all arguments in relation to this point, I am of the view that there has been substantial compliance, by Mr. Paschalis, with the provisions of the said regulation 4: [*1199]

The questionnaire in question is set out in a letter addressed to the applicant by hr. Paschalis on the 2hth April, 1.968, (see document No. 5 attached to exhibit A) and containing also a very comprehensive description of the case against the applicant. It is true that there were not attached thereto copies of the statements obtained by Mr. Paschalis, nor did he disclose to the applicant the names of the persons who made such statements, but I do not think that there has been in this connection a contravention, in a material respect, of regulation 4.

Moreover, after the applicant had replied in writing, at very great length, to Mr. Paschalis, (by means of a document dated the 26th May, 1968, and received by Mr. Paschalis on the 29th May, 1969) the latter, on the 31st May, 1968, and on the 3rd and 4th June, 1960, interviewed the applicant in order to obtain further explanations from him on certain points and the applicant gave such explanations, again at great length, first orally and then in writing, in a document which he handed to Mr. Paschalis on the 11th June, 1968 (see the documents attached to exhibit A).

I have no doubt that in the course of this exhaustively detailed process the applicant came "to know the case against him" to such an extent as to amount to substantial compliance with the requirements laid down by the aforementioned regulation 4.

Also, with all these in mind, as well because Mr. Paschalis, as an investigating officer, had neither been called upon nor was he entitled to decide about the guilt or [*1200] innocence of the applicant from a disciplinary point of view, but he was merely investigating into actions of the applicant in order to prepare a report on the basis of which the Attorney- General would advise the Minister of Foreign Affairs whether or not the applicant might be charged disciplinarily, for trial by the respondent Commission, I am of the view that, in the circumstances, there has not been, either, any contravention of the principles of natural justice due to the manner in which hr. Paschalis has conducted his investigation.

I shall examine now the submission of the applicant that the disciplinary charges brought against him were too vague and that, in particular, they did not specify the legal provisions on which they were based.

In my opinion the charges brought against the applicant were framed with sufficient certainty to enable him to defend himself against them,

Nor was it necessary to refer, in relation thereto, to any specific legal provisions.

It is well settled in administrative law that conduct of a public officer, which is incompatible with his responsibilities, duties or status as such, may be found to amount to a disciplinary offence even if there is no particular legal provision prohibiting such conduct; it is, really, not possible to envisage and cover by specific provisions all contingencies in which a public officer may commit a disciplinary offence. Reference might be

made, in this respect, to, inter alia, Πορίσματα Νομολογίας του Συμβουλίου της Επικρατείας

[*1201] 1929-1959, σ. 367. (Conclusions form the Case-Law of the Council of State in Greece 1929-1959, p. 367); to the decision of the

Greek Council of State in Case 376 (34); to Κυριακοπούλου Ελληνικόν Διοικητικόν Δίκαιον, εκδ. 4η, Τομ.

Γ, σ. 280). (Kyriacopoulos on Greek Administrative Law, 4th ed., 3rd vol.,p. 280); and to Odent on Contentieux Administratif 1965-1966 p. 1342.

On the basis of the foregoing I can find no material error, in relation to the disciplinary charges brought against the applicant, which could lead me to annulling his disciplinary conviction in respect thereof.

The next complaint of the applicant which I have to consider is that at no stage, prior to his disciplinary conviction, was he, or counsel appearing for him before the respondent Commission, furnished with copies of the reports 15 of the two investigating officers, Mr. Paschalis and Mr. Ioannides, and of the documents attached thereto, including the statements obtained from various persons by the said investigating officers: nor was he furnished with copies of other, apparently relevant, documents, which were placed before the Commission prior to the promulgation of law 33/67 and the institution of disciplinary -proceedings against the applicant thereunder.

There is no express provision to be found in Law 33/67 as to what the Public Service Commission is expected to do with “the report of the investigation” or with “the evidence in support” of the charges to be brought against a public officer, after such material has been [*1202] forwarded, to the Commission, as it has to be forwarded by virtue of the provisions of section 82(1/, It is, however, plainly obvious that the said material has to be forwarded to the Commission in relation to the disciplinary proceedings before it.

Regarding such proceedings it is provided by regulation

3 in Part III of the Second Schedule to Law 33/67 that “The hearing of the case shall proceed, as nearly as may be, in the same manner as the hearing a criminal case in a summary trial”.

I shall deal with the complaint in question of the applicant from, first, the point of view of the rules of natural justice:

In my opinion, even though regulation 3, above, may not be definitely taken as rendering directly applicable to disciplinary proceedings the provisions of Article 12(5) of the Constitution, in the same way in which they are applicable to criminal proceedings, there can be no doubt that the rules of natural justice, as incorporated therein, should be complied with in disciplinary proceedings, because of the nature of such proceedings (see, inter alia, Morsis and The Republic 4 R.S.C.C. 133 at p. 137); and I would add that it is, indeed, well settled in administrative law that, in general, in disciplinary proceedings there are followed, to a considerable extent, principles applicable to criminal proceedings (see, inter alia, Traite de Contentieux Administratif by Auby and Drago (1962) vol. Ill, p, 132, para. 1231; Odent, supra, at p. 1335). [*1203]

One of the rules of natural justice which is applicable to disciplinary proceedings is the audi alteram partem rule, viz, that the person charged should have the opportunity of being heard in his own defence in a manner in which such right shall be a real right worth what it „s meant to be.

In delivering the judgment of the Privy Council, in England, in a case involving disciplinary sanction, that of B. Surinder Singh Kanda v. Government of the Federation of Malaya (1962) A C. 332, Lord Denning had this to say (at p. 337):-

“The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in causa sua: and Audi alteram partem.They have recently been nut in the two words, Impartiality and Fairness………”

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: And then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Loreburn L.C. in Board of Education v. Rice* down to the decision of their Lordships’ [*1204] Board in Ceylon University v Fernando*. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did world to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice, the risk of it is enough.”

In the Kanda case it was held, inter alia, that the failure to supply to the appellant a copy of a prejudicial to him report of a board of inquiry., which was sent to the organ which convicted disciplinarily the appellant, amounted to a denial of natural justice.

Actually, the need for sufficient knowledge by a person of the case which he has to meet has been stressed in a considerable number of English cases, of a disciplinary or otherwise of a public law nature; it is sufficient, I think, to refer to some of them only, such as R. v. Architects Registration Tribunal, Ex parte Jaggar (1945) 2 All E.R. 131; Stafford v. Minister of Health (19/4.6) 1 K.B. 621; Regina v. Deputy Industrial Injuries Commissioner., Ex larte Jones (1962)2 Q.B. 677; and Ridge v. Baldwin (1964) A.C. 40, in which the Kanda case (supra) was followed (see the judgment of lord Morris of Borth-y-Gest at .p. 114).

The position is similar in Greece (see Kyriacopoulos, supra, at p. 299) and in France (see Traitfe Elementaire de Droit [*1205] Administratif by A. de Laubadere, 4th ed., vol. 2, p. 101, para. 172; also, La Function Publique et Ses Problemes Actuels by Silvera (1969) p. 398, para. 368). In both these two countries there exist legal provisions requiring that a person facing disciplinary charges should, before defending himself against them, come to know of the contents of the relevant dossier; and it is abundantly clear that such provisions incorporate what is, in effect, a basic general principle of law (see Laubadere, supra, p. 99, para. 168; and Silvera, supra, p. 398, para. 368).

I have no difficulty in holding that such principle is, also, applicable to disciplinary proceedings in Cyprus-. It is a derivative of the “fairness” concept under the rules of natural justice, as well as, by implication, of the relevant provisions of Law 33/67; moreover, it is to be derived, by way of guidance, from the relevant legislation in Greece and Prance (see, in this respect, Frangos and The Republic (1970) 10 J.S.C. 1014); and, as a matter of fact, I think that it would be meet desirable if such principle were out in a precise statutory text, here too, by an appropriate addition to 20 the provisions of Law 33/67.

In the present case it is not in dispute that the contents of the reports of the two investigating officers, Mr. Paschalis and Mr. Ioannides, as well as the statements obtained by them in the course of their investigations (see exhibits A and B), never came to the knowledge of the applicant, or his counsel, before the sub judr.ee disciplinary conviction of the applicant by the respondent Commission; it is [*1206] a fact, however, that the applicant and his counsel came to know, by chance, before such conviction, that the report of Mr. Ioannides was, in a certain way, not unfavourable for the applicant (see the final addresses of counsel before the Commission on the 6th February, 1969 and before this Court on the 26th October, 1970).

I am quite well aware that in France the view has been taken that a report resulting from a preliminary investigation by another organ, not being binding on the competent disciplinary organ, need not be communicated to the public officer concerned before the decision of the latter organ (see Silvera, supra, p. 403, para. 372, as well as the decision of the French Council of State in the case of Moreau, on the 3'ist May, 1966), on the other band, in England, it was held in the Kanda case (suora) that such a report ought to have been disclosed,

The actual situation in the present case is clearly distinguishable from the analogous position in disciplinary proceedings in France:

There the communication to the public officer concerned of the preliminary investigation report may, quite rightly, not be necessary because such officer is in any case in a position to know the whole case against him, in other words the material on-which such report has been based, due to the fact that the relevant dossier is made available to him for the purpose of the preparation of -his defence,

In the present instance the applicant, when he made his defence before the respondent Commission, did not [*1207] know of the written statements on the basis of which the reports of the two investigating officers had been prepared; and without knowledge of this material, which had been forwarded, under the aforementioned provisions of law 33/67, to the Commission, his right to be heard in his own defence was not really worth much (see, in this respect, the already quoted dictum of Lord Denning in the Kanda case, supra).

I would go even further and say that in, at any rate, the particular circumstances of this case, it was required, by the relevant principle of natural justice, that the applicant when defending himself before the Commission should have known the actual contents of the reports of the two investigating officers. This is so in view of the nature of such reports: The report of Mr. Paschalis - whose good faith in this matter is not to be doubted in the least appears to me to have overshot the limits of the requirements prescribed by regulation 5 in Part I of the Second Schedule to I.aw 33/67 (viz. that it should have contained his conclusion with full reasons in support thereof) and to be an exposition of elaborate and careful argumentation forcefully establishing the guilt of the applicant and destroying his credibility. On the other hand the report of Mr. Ioannides - who was at the time the Accountant-General of the Republic and, therefore, in a position to express a view as an expert regarding the financial matters under investigation

– appears to be, to a certain limited extent, favourable for the applicant. Thus, I have found no difficult-y in concluding that ignorance by the applicant, at the material time, of the full contents of these reports did severely handicap the exercise by him of his right to be heard in his own defence. [*1208]

Regarding other documents relevant to the charges against the applicant (see exhibit AF) - which were sent to the Commission prior to the promulgation of law 33/67 and to the commencement ab initio of disciplinary proceedings against him under such law - I am, again, of the view that ignorance of their contents by the applicants when he was defending himself before the Commissions affected adversely his said right to be heard.

In the light, therefore, of the fact that one of the two basic rules of natural justice, that of audi alteram partem, has not been effectively applied in the course of the disciplinary proceedings against the applicant I have been led to the conclusion that the sub judice decision of the respondent Commission has to be annulled, as having been reached in a manner contrary to law.

Counsel for the respondent has contended, in this respect, that any possible defect in the proceedings has been cured because the Commission's decision was reached wholly on the basis of evidence adduced in the presence of the applicant and his counsel.

It is quite correct that a deficiency of natural justice may, depending on the case, be made good by subsequent proceedings (see the judgment of Megarry, J., in Leary v. National Union of Vehicle Builders (1970) 2 All E.R. 713; and the case-law referred to therein); but, in the present case, the deficiency of natural justice, which I have found to exist, could not be cured by the hearing before the respondent Commission, because it is exactly such deficiency [*1209] which prevented the applicant from exercising effectively his right to he heard in his own defence at such hearing, in the sense that ignorance of the contents of the reports, statements and other documents, already mentioned in this judgment, prevented his said right from being a right really worth what it should have been (as in the Kanda case, supra).

In the Kanda case it was held, also, that where a rule of natural justice has been violated “The Court will not go into the likelihood of prejudice. The risk of it is enough* (see, also, in this respect Walter Annamunthodo v. Oilfields Workers’ Trade Union. (1961) A.C. 945); and it is immaterial, once there has been such a violation, “whether the same

decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no

decision* (see the judgment of lord Wright in General Medical Council v. Spackman (1943) A.C. 627 at p. 644). Anyhow, in the case now before me I am satisfied, on the basis of all relevant material, that because of Ills ignorance of the contents of the said reports etc. the applicant has suffered real prejudice and that possibly, though not necessarily, the outcome of the disciplinary proceedings against him might, in whole or in part at least, have been different had he possessed knowledge of such contents at the proper time.

Counsel for the respondent has stated to the Court that in actual fact the Commission did not take into account, for the purpose of the disciplinary process in question, anything other than the oral evidence given and the documentary [*1210] exhibits produced during the hearing before it, in the applicant’s and his counsel’s presence. But the fact remains that the material which was forwarded to the Commission, as aforesaid, prior to the enactment of law 33/67, and, later, by virtue of section 82(1) of such law, was available to all its members and the possibility cannot be reasonably excluded that one or more of its members became influenced by it, through perusing, even at some preliminary stage, such material; moreover, the applicant was handicapped, in the effective exercise of his right to be heard in defence of himself, through the non-availability to him, at all stages before his disciplinary conviction, of the said material* and, though I have said so earlier, Tought perhaps to stress, by repeating it, that when the application of the rules of natural justice is involved the mere risk of prejudice, due to their not having been duly complied with, is sufficient to lead to the annulment of a decision reached in a manner vitiated by such non-compliance (see, inter alia, the Annamunthodo and Kanda cases, supra).

There is, secondly, another reason, based on relevant provisions of law 33/67, for which the sub judice decision has to be annulled: In my view the disciplinary proceedings against the applicant were conducted in a manner which was inconsistent with the combined effect of the already referred to section 82(1) of l aw 33/67 and regulation. 3 in Part 25 III of the Second Schedule to the same Law (which, as stated, provides that the hearing of a disciplinary case before the respondent Commission shall proceed, as nearly as may be, in [*1211] the same manner as the hearing of a criminal case in a summary trial). I have not known of any summary trial of a criminal case at which, there was anything laced before the judge trying such case without it being, too, within the knowledge of the accused person and his counsel: and yet this is what has happened on this occasion, in the sense that the evidence in support of the charges brought against the applicant, which was forwarded to the respondent Commission in compliance with section 82(1) of l aw 33/67, as well as the reports of the two investigating officers, which were likewise forwarded to the Commission, were before the Commission but not within the knowledge of the applicant and his counsel. In my view the proper course for the Commission was to make such evidence, which consisted of the written statements of various persons and of documentary exhibits, part of the record of the hearing before it, because it was forwarded to it in that connection (and under regulation 4(c) in Part III of the Second Schedule to Law 33/67 it could admit evidence which would be “inadmissible in civil or criminal proceedings”); it being understood, of course, that it was open to the Commission to decide, either of its own motion or at the request of a party before it, that any of the said persons should be called to give oral evidence, too, during the hearing before the Commission. Moreover, the reports of the two investigating officers ought to have been made available to applicant and his counsel (not only, as stated earlier in this judgment, as a matter of natural justice, in the circumstances of this case) but, also, as a matter of law - the said section 82(1) and regulation 3 - once they had been [*1212] forwarded to the Commissions by the complainant Ministry, in relation to the disciplinary proceedings before it, and they were available both to its members andto counsel appearing for such Ministry.

Thus, irrespective of any non-compliance with the audi alteram partem rule of natural justice, the Commission's decision was reached contrary to the object and effect of the relevant provisions of law 33/67.

It is correct that the applicant and his counsel did not request that the said material be made available in relation to the hearing before the Commission. I do not think, however, that this is a factor which can prevent the annulment of the sub judice decision. Because this was not a case in which the applicant knew that he had the right, under an express provision to that effect - as in Prance or 15 Greece - to study the contents of the relevant dossier, and yet he neglected to do so (see Silvera, supra, at p. 398? para. 368), but a case in which the absence of such an express provision in Law 33/67 prevented both the applicant and the Commission from knowing clearly what was the exact position in this respect.

A third reason for which the decision of the Commission has to be annulled is that, notwithstanding the very lengthy disciplinary trial, it was reached without "due inquiry".

That a due inquiry is essential for the validity of any administrative decision is a fundamental rule, the importance of which has been repeatedly stressed (see [*1213] the long series of relevant case-law from Photos Photiades Co. and The Republic 1964 C.I.R 102, up to, very recently, Nicolaou and The Republic (1970) 9 J.S.C. 862); and such inquiry is no doubt necessary in relation, also, to disciplinary matters (see, inter alia, the Soackman case, supra; the case of Fox v. General Medical Council (1960) 3 All E.R. 225 at p. 227; and the Sloan case, supra).

Counsel for the respondent has conceded that the Commission ought to have studied, for the purposes of the disciplinary process against the applicant, the reports of the two investigating officers and the documents attached thereto; but he has argued that its failure to do so has not, in this case, materially affected the said process.

I do not think that I can accept his argument, on this point, as a valid one, because, inter alia, nobody can tell for certain whether the study of the said reports and documents would or would not have led the Commission to decide that there was need to inquire further into any material aspect of the case before it.

Moreover, the Commission’s inquiry cannot, in any case, be treated as having been a due one, because by not making available to the applicant all the material, which was before it, the Commission deprived itself of the opportunity of having before it as complete explanations as the applicant could have given, in trying to exculpate himself, if he had known off all such material (see, inter alia, I ordanou and The Republic

(1967) 4 J.S.C 453). [*1214]

For all the reasons set out in this judgment I find that the sub judice decision of the respondent Commission has to be declared to be null and void and of no effect whatsoever. In view of this I do not have to, and I shoud not, decide any of the other issues raised in the present case.

It is now up to the Commission to revert to the disciplinary matters concerning the applicant, in the light of this Judgment and in the light of any relevant legal advice that it may be given; I think J should not express any specific view in this respect.

I have decided to make no order as to costs because though the applicant has succeeded in this recourse he has been found to be wrong on some issues which he 'as raised and which have taken a lot of the time of this Court.

Sub Judice decision annulled.

No order as to costs.

* (1911) A.C. 179, 182.

* see supra.