Supreme Court dismisses appeal against compulsory retirement, upholding disciplinary proceedings and general punishment.

[*1647] 1971 October 17

(TRIANTAFYLLIDES, P.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Ioanna Enotiadou,

Applicant,

And

The Republic of Cyprus, through

The Public Service Commission,

Respondent.

(Case No. 61/69).

Administrative Law - Collective organ - Change of composition - Public Service Commission - Meeting for the purpose of disciplinary proceedings - Fifth member thereof present only at commencement of proceedings - Rot taking any further part nor did he participate at all in the reaching of the sub judice decision - Validity of proceedings not vitiated Section 11(2) of the Public Service law, 1967 (Law 33/67) Vivardi v. Vine Products Council (1970) 1 J.S.C. 112 followed.

Public officers - Disciplinary offences by - Committed prior to the enactment of the Public Service Law, 1967 (Law 33/67) They can be dealt with under the said law and in accordance with the procedure prescribed thereunder - Principle of nullum delictum sine lege not applicable to disciplinary proceedings - And presumption against retrospectivity not applicable to procedural provisions.

Public officers - Disciplinary proceedings before Public Service Commission - Evidence - Need not be heard on oath.

Administrative Law - Administrative Court - Dealing with a recourse against a disciplinary conviction - Cannot, as a rule, interfere with the subjective evaluation of the relevant facts as made by the Appropriate Organ - Conviction of applicant, in the instant ease, warranted by the material before the Public Service Commission.

Regulations - Internal regulations - Prescribing proper conduct of staff of Government hostels - Whether necessary to be published in the official Gazette. [*1648]

Public officers - Disciplinary offence - Disciplinary conviction on several charges - General punishment (Compulsory retirement) imposed in respect of all charges - Nothing erroneous, from the point of view either of principle or of good administration, in imposing general punishment in view of the nature of the punishment imposed.

Collective organ - Public Service Commission Change of composition See also, under "Administrative Law".

Nullum delictum sine lege - Principle of - Not applicable to disciplinary proceedings.

Retrospectivity - Principle against - Not applicable to procedural provisions.

Disciplinary proceedings - Disciplinary offence – Public officers - See under "Administrative Law" "Public Officers".

Evidence - In disciplinary proceedings -- Before Public Service Commission - It need not be heaffi on oath.

Public Service Law, 1967 (Law 33/67) - See under "Public Officers".

Public Service Commission - See under "Administrative Law"; "Public Officers".

L. Papaphilippou, for the Applicant.

S. Nicolaides, Counsel of the Republic, for the Respondent.

JUDGMENT

The following judgment was delivered by: -

TRIANTAFYILIDES.P. In this recourse the [*1649] applicant complains against the decision of the respondent Public Service Commission to retire her compulsorily from the public service on disciplinary grounds; the said decision was communicated to her by letter dated the 27th January, 1969.

At the material time the applicant was holding the post of Assistant Superintendent of Homes in the Department of Welfare Services of the Ministry of Labour and Social Insurance.

The respondent reached its sub judice decision at its meeting of the 20th January, 1969; as it is stated in such decision, which is a reasoned decision and copy of which was attached to the letter addressed to the applicant on the 27th January, 1969, the applicant was found guilty of having committed the following disciplinary offences while she was employed as Assistant Superintendent at a hostel - the Girls' Welfare Centre - in Nicosia:

First, that on various occasions, while being at the hostel, she behaved in an improper manner with another female member of the staff of the hostel, in such a way as would bring the public service into disrepute and shake the confidence of the public therein, especially in view of the nature of the post held by the applicant and of the kind of institution where such behaviour took place.

Secondly, that she was evading the performance of her duties.

Thirdly, that she was behaving in a harsh manner towards the inmates of the hostel and was not co-operating with her superiors. [*1650]

Fourthly, that on the 17th July, 1966, she slapped one of the inmates, contrary to the regulations governing the functioning of the hostel.

Regarding the charge that she had been behaving improperly with another female member of the staff she was found guilty by a majority of three to one; regarding the other charges she was found guilty unanimously by four members of the Commission.

Another - the fifth - member of the Commission had been present for half a day only at the commencement of the examination of the case by the Commission; and he did not take any further part in the disciplinary proceedings nor did he participate at all in the reaching of the sub judice

decision, learned counsel for the applicant has submitted that the presence as aforesaid of this member and his absence thereafter vitiated the validity of the whole disciplinary proceedings. I am of the opinion, in the light of the relevant principles as expounded by this Court in, inter alia, Vivardi and The Vine Products Council, (1970) 1 J.S.C., 112, that in view of the fact that after the change in the composition of the Commission, which occurred as mentioned above, the composition of the Commission remained unchanged until the sub judice decision was taken, such decision was reached, in effect, by four members who had participated in the whole of the disciplinary proceedings and, therefore, there does not [*1651] 1967 (Law 33/67)5 the Commission could reach a decision with only four of its members being present.

Also, I find no merit in the contention of counsel for the applicant that the disciplinary proceedings in question are invalid because though the events to which they relate took place before the enactment of Law 33/67 the applicant was dealt with under the provisions of Law 33/67. It is correct that, originally, before the enactment of law 33/67, the applicant had been already interdicted from performing her duties pending the conclusion of the relevant disciplinary proceedings against her and the machinery of such proceedings was set in motion; and after the said Law was enacted the disciplinary process commenced entirely afresh under the provisions of such Law.

I am of the opinion that the course followed by the respondent Commission was the proper one in the circumstances:

It was perfectly lawful for the Commission to deal with the relevant conduct of the appellant under Law 33/67, even though such conduct was antecedent to the enactment of such Law; because it has been held that in relation to disciplinary matters the principle of nullum delictum sine lege is

not applicable; see the decisions of the Council of State in Greece "Συμβούλιον της Επικρατείας") in cases 278/1932 and

645/1935, as well as the Conclusions from the Case-Law of the Council of State in Greece ("Πορίσματα Νομολογίας του Συμβουλίου της Επικρατείας") 1929-1959 p. 366. Furthermore, after Law 33/67 was enacted the exist any reason for annulling the decision on the ground of defective composition of the Commission; it is, also, to be noted that under section 11(2) of the Public Service Law, [*1652] procedure prescribed thereunder had to be applied even in relation to offences prior to its enactment because the presumption against retrospectively does not apply to procedural provisions (see, inter alia, Maxwell on Interpretation of Statutes, 12th ed., 222; and Odgers' Construction of Deeds and Statutes, 5th ed., 287).

Another contention of counsel for the applicant has been that the evidence adduced before the Commission in relation to the charges brought against the applicant was not heard on oath: There is nothing in the relevant Law - Law 33/67 - to either make it necessary for the Commission or entitle it to hear evidence on oath in the course of disciplinary proceedings, which are, essentially, not a judicial trial but an administrative enquiry; I find, therefore, no merit in this contention of applicant’s counsel.

It has been argued, also, on behalf of the applicant, in relation to the charge concerning the slapping of an inmate that such conduct was prohibited by regulations which had never been published in the Gazette and had never been brought to the knowlege of the applicant and that, there-fore, she could not have been found guilty of any contravention of these regulations. On the basis of documents before me I have no doubt that the said regulations were internal regulations prescribing the proper conduct of the members of the staff which did not have to be published and they had been duly brought to the knowledge of the applicant; and, in this respect, I do not believe the evidence of the applicant to the contrary. [*1653]

The next matter with which I have to deal is whether or not it was proper for the Commission, on the material before it, to find the applicant guilty of the charges brought against her and, particularly, of that relating to improper behaviour With another female member of the staff of the hostel: It is well settled that an administrative Court in dealing with a recourse made against a disciplinary conviction cannot, as a rule, interfere with the subjective evaluation of the relevant facts as made by the appropriate organ (see inter alia, the decisions of the Council of State in Greece in cases 2654/1965 and 1129/1966); moreover, a perusal of the reasons given for finding the applicant guilty, including the reasoning in support of the majority and minority views in connection with the charge of improper behaviour with another female member of the staff, shows that the conviction of the applicant on all charges was warranted by the material before the Commission.

It was, lastly, submitted by applicant that it was not open to the Commission to impose on her a general punishment in respect of all the charges. In view of the nature of the punishment imposed, namely compulsory retirement of the applicant from the public service, because, obviously, she was, in the circumstances, considered to be totally unsuitable as an Assistant Superintendent of Homes, I can see nothing erroneous from the point of view either of principle or of good administration in imposing the said punishment as a general punishment in respect of all the disciplinary offences concerned [*1654] For all the foregoing reasons this recourse fails and is dismissed accordingly, but in view of the serious nature of the punishment imposed on the applicant I have decided to make no order as to costs.

Application dismissed.

No order as to costs.