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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1987) 3 CLR 926
1987 June 17
[A LOIZOU. J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
MAMAS PARPAS,
Applicant,
v.
THE REPUBLIC OF CYPRUS, AND/OR
THE MINISTRY OF COMMUNICATIONS AND WORKS,
Respondent.
(Case No. 369/85).
Time within which to file recourse Payment of allowance to a civil servant stopped as from 15.3.83, whereas le protested for the first time on 15.9.83, receiving in the meantime his salary unreservedly Recourse out of time.
Executory decision-Confirmatory decision.
Constitutional Law-Equality-Constitution Art. 28.1-Safeguard against arbitrary differentiations, but does not include reasonable distinctions that have to be made in view of the intrinsic nature of things -Civil servant serving at Lamaca International Airport-Credit of two hours travel period to and from their home-Decision to stop such credit in respect of employees residing in Lamaca and suburbs-Distinction between such employees and other employees reasonable.
On the 15.5.81 the applicant, who was a re5ident of Troulli village near Lamaca, was appointed Assistant Airport Officer, Second Grade and started work at Lamaca International Airport. In virtue of an agreement made in 1975 between the Government and the Pancyprian Union of Civil Servants, whereby it was agreed that employees who were posted prior to the Turkish Invasion in Cyprus at the Nicosia International Airport, would continue to have their station in Nicosia and consequently they would be credited with the time of their travel in Lamaca, agreed to be two hours as part of their working hours, the applicant was credited with two hours {ravel period.
The said allowance stopped as far as the applicant was concerned as from 15.3.83 on 22.10.83 the joint Personal Committee agreed that the applicant and two other employees residing in the District of Lamaca should stop being credited with travel time as aforesaid.
By letter dated 12.2.85 the respondent replied to applicant's letters dated 25.9.83 and 31.10.84, informing the applicant that the termination of the credit was effected in accordance with the relevant decision of the Joint Personnel Committee, which the Ministry cannot ignore.
Hence this recourse.
Held, dismissing the recourse: (1) The allowance was stopped as from 15.3.83, whereas the applicant protested for the first time by letter dated 15.9.83, though he was receiving during the intervening time his salary unreservedly. The recourse is out of time. Moreover, the sub judice decision, which was taken without examination of new facts is confirmatory of an earlier one.
(2) The applicant wa5 not in the service at the time of the Turkish invasion and, therefore, did not fall within the class of employees in respect of whom the agreement of 1975 was made.
Art. 28.1 of the Constitution safeguards against arbitrary differentiations, but does not include reasonable distinctions that have to be made in view of the intrinsic nature of thing5. On the facts of this case a reasonable distinction could be drawn between the class of the applicant and two other employees who resided in Lamaca and suburbs and the other employees of the respondent.
(3) The applicant failed to substantiate his complaint of misconception of fact, namely that the respondent did not have in mind that he was living in Troulli village and not in Lamaca town.
Recourse dismissed.
No order as to costs.
Cases referred to:
Mavrommatis and Others v. The Republic (1984)3 C.L.R. 1006;
Myrianthis v. The Republic (1977)3 C.L.R. 165;
Zambakides v. The Republic (1982)3 C.L.R. 1017:
Demetriades v. The Republic (1986)3 C.L.R. 290;
Ioannou v. The Grain Commission (1986)3 C.L.R 612.
Recourse.
Recourse against the decision of the respondent whereby applicant was deprived of his right to be credited with the period of his travel from his home to his work.
A. S. Angelides, for the applicant.
M. Tsiappa (Mrs.), for the respondent.
Cur. adv. vult.
A. LOIZOU, J. read the following judgment. By the present recourse the applicant seeks a declaration of the Court that the act and or decision of the respondent dated the 12th February 1985, by which he was deprived of his right to be credited with the period of his travel from his home to his work, is null and void and with no legal effect.
The applicant was on the 15th May, 1981 appointed to the post of Assistant Airport Officer, Second Grade and started work at Lamaca International Airport. He is a resident of Troulli village which lies at a distance of eight miles from Lamaca town and he was credited with two hours travel period to and from his home. He was so credited as there was an agreement which had been entered into in 1975, between the Government and the Pancyprian Union of Civil Servants, under which employees who were posted prior to the Turkish Invasion in Cyprus at Nicosia International Airport. and were to perform their duties in Lamaca International Airport they would continue to have as their station the Nicosia Airport and the time for travel two hours in all offered by the Government ex gratia, would be considered as part of their hours of work and be also paid subsistence allowance.
On the 24th August 1983, the Sub-committee of the Joint Personnel Committee submitted a report, (Appendix 1), on the question of the station of employees of the Department of Civil Aviation who were employed at Lamaca Airport having been moved to this effect by the Government and the Joint Personnel Committee. As it emanates from the said report three employees of the Department of Civil Aviation, including the applicant who were working at Lamaca Airport had their place of residence in Lamaca District and had been so employed after 1975, should no longer be credited with travel time for other trip to Lamaca Airport. At the meeting of the Joint Personnel Committee of the 22nd October 1983. (Appendix 3). it was agreed that the above mentioned three employees should stop being credited with such travel time.
In reply to the applicant's letter of the 25th September 1983, and 31st October 1984 (Appendices 4 and 5) addressed to the respondent the latter replied ultimately by his letter of the 12th February, 1985 (Appendix 7) as follows:
«I have instructions to refer to your letter dated 31st October 1984, which was received at the Ministry on the 28th January 1985, regarding your claim to continue to be credited with a journey for your travelling to and from work at Lamaca Airport and to inform you that termination of this credit was mad in accordance with the relevant decision of the Joint Personnel Committee which the Ministry cannot ignore or differentiate.»
As against the decision contained in the aforesaid communication the applicant filed the present recourse.
The payment of such allowance to the applicant stopped as from the 15th March 1983, and the applicant complained for the first time to the respondent by his letter dated the 15th September 1983, that is six months after such cessation of payment which is after the lapse of 75 days prescribed in. Article 146(3) of the Constitution, though he was receiving during that time his salary unreservedly. I may outright say that the present recourse is out of time and that the applicant by his conduct impliedly and unreservedly accepted the decision subject matter, of this recourse. (See in this respect Mavrommatis and Others v. The Republic(1984)3 C.L.R. 1006: Myrianthis v. The Republic(1977) C.C.L.R. 165: Zambakides v. The Republic (1982) 3 C.L.R. 1017 and Demetriades v. The Republic (1986) 3 C.L.R. 290. Relevant is also the case of Ioannou v. The Grain Commission (1986) 3 C.L.R. 612.)
Moreover the said decision challenged by the applicant is confirmatory of the decision already taken by them without examination of new facts. (See Ioannou (supra) at p. 616. and Zambakides v. The Republic (supra) at pp. 1023-1024.) The recourse therefore should be dismissed on this ground.
I shall proceed however to examine if there has been an discrimination which appears to be the main ground upon which this recourse is contended.
In the year 1983 the number of employees of the Department of Civil Aviation who were working at lamaca Airport was 76 out of these employees 56 had been employed for the first time on or before the year 1974, and had at the time, as their actual station of work, the Nicosia Airport. With the exception of five employees who we residing in Limassol, Frenaros and Theletra, the remaining fifty-one employees out of the fifty-six were residing in the town of Nicosia or in other places within, the Nicosia District.
The remaining number of employees of the Department of Civil Aviation, that is twenty-one out of seventy-six, were employed with the Department after the year 1974 and since the date of their employment has as their actual station of work the Lamaca Airport. Out of these fourteen employees were residing in places faraway from Lamaca, such as, Nicosia, Emba, Avgorou, Sotera, Paralimni and Limassol. Two of such employees were residing at Lamaca, itself and the applicant was residing at Troulli, very near Lamaca. (Appendix 1 to the Opposition and para iv of Appendix 3 to the Opposition.).
It is obvious from what has been hereinabove set out briefly that the applicant did not fall within the class of employees in respect of which travelling time had been credited for their journey to and from Lamaca Airport. He was not in the service before 1974 arid needless to say he was not and could not be posted at Nicosia Airport. That agreement and its subsequent adoption as a decision of the respondent covered employees of the Department of Civil Aviation, who were prior to 1974 Turkish Invasion stationed for work at the Nicosia Airport and because of the occupation they had to work at the then constructed Larnaca Airport. It seems that it was necessitated by the circumstances affecting them, including, as claimed by the respondents in their address, the difficulty of finding housing accommodation at Lamaca due to the refugee problem, hence these employees were to be deemed to continue to have as their work station the Nicosia Airport and the time for their travelling estimated as two hours, was to be taken as working time so that they were to be paid overtime allowance, and meal allowance.
It is clear that it did not amount to an arbitrary differentiation to stop crediting with travelling time the applicant, who was residing near Lamaca, and the abovementioned two other employees who were residing at Lamaca itself, and all of whom had been employed after 1974 and have been working at Lamaca Airport.
Moreover on the basis of the above facts a reasonable distinction could be drawn between the class of the applicant and the other two employees, and the rest of the employees employed at the Department of Civil Aviation.
Article 28.1 of the Constitution safeguards only against arbitrary differentiations and does not include reasonable distinctions which have to be made in view of the intrinsic nature of things. This ground therefore cannot succeed either.
The last ground which was introduced by learned counsel for the applicant in the address in reply and in support thereof two affidavits, one by the applicant himself and another by a certain Christodoulos Panteli an Inspector of Airports and a member of the Branch Committee of PASYDY, were filed, is that the respondent acted under a misconception of fact. The misconception being that the respondent and the Joint Personnel Committee and the sub-committee it set up to study the matter did not have in mind that the applicant was living in Troulli village and not in Lamaca town.
A perusal of the relevant documents shows that there has been no misconception of fact as the travelling allowance was stopped from all employees residing in Lamaca District vis-a-vis those residing in other districts. In fact in paragraph 4 of the affidavit of Panteli it is stated that they had in mind three residents of Lamaca and suburbs and Troulli village must be considered as being a suburb of Lamaca town, being eight miles away from it, next to Livadhia village. I do not think that the statement of the affiant in the said affidavit that they «did not know that the village of the applicant was at such a great distance from the airport» is an accurate one. On the contrary it makes it clear that when examining the situations the sub-committee had in mind that the applicant came from Troulli village. Moreover in Appendix II the minutes of the sub-committee- paragraph (d) is headed «Application of the agreement for those that reside in Lamaca and near Lamaca.» This ground should also fail.
For all the above reasons this recourse is dismissed with no order as to costs.
Recourse dismissed.
No order as to costs.