Court awards just and equitable damages for discriminatory compulsory retirement annulment, rejecting administration's argument against material damage consideration.

[*31] 1984 May 26

(KOURRIS, P.D.C. AND) S. NICOLAIDES, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Nicolaos Constantinou,

Plaintiff,

v.

Attorney-General,

Defendant.

(Action No.103/80).

Damages in virtue of Article 146.6 of the Constitution following annulment of an administrative decision by the Supreme Court - Assessment of - Factors to be taken into consideration - Culpability of the administration - whether refusal to re-employ the plaintiff following the annulment of the latter’s compulsory retirement from the army affects such culpability - Question determined in the negative - Administration had a right to elect either to re-employ the applicant or to pay him just and equitable damages - Said compulsory retirement annulled on ground of discrimination contrary to Art. 28 of the Constitution - In the circumstances degree of culpability of the Administration is not a small one.

Chr. Christofides for L. Papaphilippou, for the Plaintiff.

R. Gavrielides, Senior Counsel of the Republic for the Defendant. .

JUDGMENT

The judgment of the Court was delivered by:-

KOURRIS. P.D.C.:- This is an action for just and equitable damages under paragraph

6 of Article 146 of the Constitution.

Counsel put in evidence a statement of admitted [*32] facts and they have called .no other witnesses.

The facts are simple and are the following:-

The plaintiff enlisted in the Cyprus Army on 5th July, 1961, and after serving for a period of time he was promoted to various ranks and on 1st November, 1971 he was promoted to a captain, a post which he held until 1976.

Because he was feeling ill he was examined by a Medical Board which found him to be suffering from myelopathy and cervical spondylosis; they also found that the plaintiff was able to do office work only.

On 29th December, 1976 a letter was addressed to the plaintiff on behalf of the Director-General of the Ministry of Defence, informing him that the Council of Ministers by their decision No. 15453 of the 9th December, 1976 had decided his compulsory retirement from the Cyprus Army in the public interest as from 1st March, 1977 by virtue of the Pensions Law, Cap. 311, s. 6(ct) and 7 as amended.

The plaintiff, feeling aggrieved because of his compulsory retirement, filed recourse No. 15/77 on 16th January, 1977 asking for the annulment of the decision of the Council of Ministers under Article 146.1 of the Constitution. The Supreme Court heard the recourse and delivered its judgment. on 24th November, 1979 annulling the said decision (see exh. 1). The Supreme Court annulled the decision on the ground that the Administration contravened Article 28 of the Constitution in that they have acted in [*33] a discriminatory manner towards the plaintiff because they did not proceed to the compulsory retirement of another four officers serving in the Army in spite of their permanent partial disability.

Following the decision of the Supreme Court the plaintiff, through his counsel, addressed a letter on. 28th November, 1979 to the Council of Ministers and to the Minister of Defence to satisfy the plaintiff by paying to him just and equitable damages according to Article

146.6 of the Constitution but, the plaintiff received no reply, hence the present action.

The total amount which the plaintiff would have received from 1.3.77 until the end of 1982 is £24,950.-; this amount includes the salaries and other emoluments including 13th salary for each year which the plaintiff would have received had he not been compulsorily retired (paragraph 8 of the agreed statement of facts). During the same period the plaintiff, in order to minimize loss, found employment and received a total amount of £6,719.- as per paragraph 7 of the agreed statement of facts including reduced pension starting at £45.- per month and by the end of 1982 it was increased to £78.- per month.

The plaintiff, upon his compulsory retirement, received the sum of £2,195.- cash by way of a lump sum plus £45. per month as pension.

The plaintiff was born on 11.11.1937 and at the time of his compulsory retirement he was about 40 years old [*34] and according to the Army

of the Republic (Constitution and Enlistment) Law 1961, Law No. 8/61, s. 53 and s. 56 as amended, he would have retired on

reaching the age of 55 unless the Council of Ministers might have required or permitted him to retire from Service at any time after he has attained the age of 50.

The plaintiff is married with two children, one son and one daughter. His wife is not working and his son John,

aged 21, studies Industrial Chemistry in New York, U.S.A., and his daughter Elisavet, aged 19, studies at the University of Thessaloniki, Greece,

The relevant Article of the Constitution which governs the present case is Article 146, paragraphs 5 and 6 which read as follows:-

“Paragraph 5.

“Any decision given under paragraph 4 of this Article shall he binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned.

“Paragraph 6.

“Any person aggrieved by any

decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, [*35] to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant”.

It is now well settled in the case of Pantelis Petrides v. The Greek Communal Chambers (1965) 1 C.L.R. 39 which was affirmed in the case of Attorney-General v. Andreas Markoullides

(1966) 1 C.L.R. 242 that the District Court is the proper court before which proceedings of this nature should be instituted.

In the case of Attorney-General v. Markoullides, Triantafyllides, J., as he then was, in delivering the judgment of the Supreme Court at p. 255 had this to say:-

“We wouldlike topoint out that we consider as largely irrelevant the law of master and servant in a case such as the present one; we are concerned, here, with the claim of a citizen, respondent 1, for damages because of the consequences of a decision of a public organ - the Public Service Commission which decision has been declared, on recourse under Art. 146, to be void; such claim is .not based on the law of master and servant at all, but on his right to make such a claim as provided for by paragraph 6 of Article 146”. [*36]

Also at p. 256 he said as follows:-

“We cannot assess such damages on the basis of the measure of damages which would have been adopted had this been a case of wrongful dismissal in the realm of the law of master and servant.

“Damages in a case, such as the present one, have to. be ’just and equitable damages’, as ’laid down in paragraph 6 of Article 146, and, in interpreting such expression, we find great assistance in the course adopted by the French Council of State in the case of Deberles (7th April 1933). It was held, there, in a Case of similar nature to the present one, that in assessing damages in relation to a

decision which has been declared to be void the respective importance of the culpability of the Administration and of the claimant must be taken into account”.

In the case of Charilaos Frangoulides v. The Republic of Cyprus through the Attorney-General of the Republic (1982) 1 C.L.R. 468 Pikis, J., in delivering the judgment of the Supreme Court had this to say at p. 470:-

“The cause of action conferred by Article 146.6 of the Constitution, is a cause sui generis, in the sense that it bears no relationship to a common law action for damages or, in fact, to [*37] “any other cause of action known to the law (Costas Tsakistos v. The Attorney-General (1969) 1 C.L.R. 355). It is a right to be evaluated in the context of Article 146 and the system of review of administrative action created thereby. It is ancillary to judicial review, as a measure necessary for its effectiveness. Primarily it entitles the injured party to recover damage not remediable by proper administrative .action. If the proper administrative action is not taken, the remedy is to go to the administrative court again. If this step notwithstanding the injured party is left to shoulder damages, then he has a right to recover them from the Republic. The right to damages under Article 146 is distinctly independent from any other cause of action, as .the

Supreme Court held in Attorney-General v. Andreas Marcoulides and Another (1966) 1 C.L.R. 242. Not only its juridical

basis but also the manner-of quantifying damages is different from a common law action. The Supreme Court emphasized the equitable character of the relief as well as the damages recoverable, stressing that they are not strictly, compensatory. Consequently, it is legitimate for the Court to have regard, not only to the extent of the material damage suffered, but also to the conduct of the parties and the degree to which the successful party contributed to the production of the wrongful administrative [*38] act. In the case of Marcoullides, supra, the Supreme Court derived guidance, inter, alia, from French case law, establishing that the conduct of the parties and their blameworthiness, if any, is of crucial importance to the determination of the quantum of the damages”.

We now turn to the quantum of damages. We adopt what the District Court said in the case of Costas Tsakistos v. The Attorney-General of the Republic and Another. Its judgment was upheld by the Supreme Court and it is reported in 1969,) 1 C.L.R. p. 355:-

“Awarding damages under Article

146 of the Constitution is a task with which the District Courts are not as yet quite familiar and on the other hand there are not many decisions to which Courts of first instance can look for guidance. We are fully cognizant of the fact that the Common Law quantum of damages is not applicable and we also have

in mind the decision of the Supreme Court in the following two cases: Pantelis petrides v. Communal Chamber, supra and Attorney-General v. Andreas Marcoulides and Another (1966) 1

C.L.R.242”.

We may also add the case of Frangoullides v. The Republic (supra).

It appears from the above cases that, inter alia, in assessing the amount of just and equitable damages the following should be taken into consideration: the culpability [*39] of both sides, i.e. the conduct of the parties and their blameworthiness, the extent of the material damage suffered, that the damages need not be made with mathematical exactitute and also the fact that if the plaintiff tries his best to minimize the loss of seeking and finding other employment is a factor in his favour.

Mr. Gavrielides, appearing for the defendant, conceded that there is no culpability on the part of the plaintiff and stressed the point that on the facts of this case the culpability of the Administration is next to nothing. He contended that the.plaintiff was: compulsorily retired because of his medical condition and had he remained in the Army his usefulness would have been very little because he would be doing office work only. He said, the culpability of the Administration is that he treated the plaintiff with discrimination in that other officers who are of the same or worse medical condition have retained their posts.

Mr. Christofides for the plaintiff, contended that on the facts of this case the culpability of the Administration is very great and he went on to .say that after the annulment of the

decision by the Supreme Court the Administration failed to re-employ the plaintiff in accordance with paragraph 5 of Article 146 and this should be taken.into account in assessing the culpability of the Administration.

We do not think that the non re-employment of the plaintiff by the defendant is a factor that should be taken in assessing the culpability of the defendant. Undoubtedly, it is the duty of the defendant under Article 146.5 of the [*40] Constitution to give effect to the judgment of the Supreme Court issued under paragraph 4 of the aforesaid article. But, the Administration can either give effect to a judgment of the Supreme Court by re-employing the plaintiff or by electing to give him just and equitable damages.

In the present case the plaintiff, by his letter dated 28th November, 1979 invited the Council of Ministers and the Minister of Defence to pay him compensation and the Administration, by their conduct, elected to pay him just and equitable damages.

Also Mr. Gavrielides stressed the point that the only factor that should be taken in assessing just and equitable damages is the culpability of both sides and that the Court should not take into consideration the material damage suffered by the plaintiff. The short answer to this argument is the decision of the cases of Marcoulides, Tsakistos and Frangoullides (supra) where it was held that the material damage suffered should be taken into consideration in assessing equitable damages.

Having given the cases anxious consideration we have come to the conclusion that the following, inter alia, should be taken into consideration is assessing the amount of just and equitable damages:-

1. The culpability.

It is common ground that there is no culpability on the part of the plaintiff. Regarding the culpability of the Administration, we think that it is of no small degree, [*41] bearing in mind that they picked out the plaintiff and retired him compulsorily, whereas there were another four Army officers whose medical condition was the same or even worse than the plaintiff’s, and they were retained in the Service.

2. Materia damage suffered by the plaintiff.-

It is an .admitted fact that had the plaintiff remained in the Army he would have earned by the end of 1982 £24, 950.- and it is an admitted fact that during that period he had earned £6,719.- including in this amount his pension. It is also admitted that the plaintiff received upon retirement a lump sum of £2,195.- and also received diminished pension which, at the time of his retirement, was £45.- and is now increased to £78.-. There is no evidence before us what the plaintiff would have received by way of lump sum and what his pension would have been if he retired normally at the age of 55 or at least 50.

3. We have taken into consideration all the facts of this case and we have given due regard to the points stressed before us by both counsel.

In assessing the amount of just and equitable damages we do not propose to make it with mathematical exactitute by taking into account what the earnings of the plaintiff would have been and compensate him accordingly having made the aforesaid allowances or deductions and also any of the usual deductions for lump sum or for contingencies. [*42]

We.propose to give him a global sum bearing always in mind that the damages to be recovered are not strictly compensatory, but just and equitable. We have reached the conclusion that the plaintiff is entitled by way of just and equitable damages the sum of £12,000.-.

In the circumstances there will be judgment for the plaintiff for £12,000. - with costs in his favour.

Costs to be assessed by the Registrar.

Judgment for plaintiff for £12,000.- with costs.