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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 88
1989 January 26
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ANDREAS THEODORIDES.
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF
INTERIOR AND OTHERS,
Respondents.
(Case No. 878/87)
Executory act - Monetary differences - Outside ambit of Public Law - Gratuity payable to police officer upon retirement attached for payment of debt allegedly due jointly and severally by applicant and another person to the Government - Dispute related to debt to the Government but not to question whether the gratuity was due - This fact distinguishes present case from Tsiartziazis v. The Republic (1985) 3 C.L.R. 1 - The decision in respect of the attachment is not an executor act - The Pensions Law, cap. 311. section 12.
Constitutional Law - Equality - Constitution, Art. 28 - Attachment of gratuity payable upon retirement of applicant from the police for payment of debt due to Government jointly and severally with another person whose gratuity payable upon his retirement from the police was not attached - Question, whether principle of equality violated, determined in the negative.
The facts and issues in the present recourse sufficiently appear in the hereinabove Headnotes. The Court held that the sub judice decision is in the domain of Private Law. It further held that the principle of equality had not been violated, because the co-debtor had retired earlier than the applicant, the matter had not been within the respondent's contemplation and, in an event, there cannot be equality arising from an illegal act (vide section 12 of the Pensions Law. Cap. 311).
Recourse dismissed. No order as to
costs.
Case referred to:
Tsianziazis v. Republic (1985) 3 C.L.R. 1.
Recourse.
Recourse against the decision of the respondents whereby the payment of gratuity to applicant granted to him under the law on retirement was attached by the respondent on account of a debt due to the Government.
C. Melas, for the Applicant.
M. Florenrzos. Senior Counsel of the Republic, for the Respondents.
Cur.adv. vult.
SAVVIDES. J. read the following judgment. Applicant, by the present recourse, challenges the decision of the respondent dated 17th August, 1987, whereby the payment of gratuity to the applicant granted under the law on retirement was attached by the respondent on account of a debt due to the Government.
The applicant was a police constable who entered the police force on 28th August. 1973 and had served till the 12th August. 1986, when he submitted an application for retirement from the service. On the 2nd September, 1986, the Minister of Interior approved his application and the Director-General of the Ministry of Interior informed the Chief of Police accordingly.
The Accountant-General of the Republic on the basis of the service of the applicant found that the applicant was entitled to a gratuity of £5,045.49.
The Director-General of the Department of Public Administration and Personnel of the Ministry of Finance havingobtained the advice of the Attorney-General in that respect wrote on the 5th August, 1987, a. letter to the Chief of Police informing him that under the provisions of s.12 of the Pensions Law the Government was entitled to attach the retirement gratuity of the applicant against a debt due to the Government the balance of which amounted to £7,739.75. The said amount was due jointly and severally by applicant and one PanikosAngelides of Limassol under a bond dated 19.5.1986 payable to the Director of Customs and Excise in settlement of import duties due.
By letter dated 17th August. 1987, the Chief of Police addressed the following letter to counsel acting on behalf of the applicant:
"In continuation of my letter dated 11th February, 1987, in connection with the payment of gratuity to your aforesaid client ex-police constable, I have been instructed to inform you that in accordance with s. 12 of the Pensions Law the pension and/or gratuity which are granted under the said law are not subject to attachment for any debt or claim unless such debt is due to the Government of Cyprus. Taking into consideration the fact that your client owes to the Government by virtue of a bond a sum which exceeds the amount of the gratuity the Government is entitled to attach the gratuity on account of such debt. Therefore, the Ministry of Finance has not approved the payment of the gratuity to your client."
Hence the applicant filed the present recourse.
The legal grounds set out therein in support of the prayer are the following:
(1)The respondents were operating under a misconception of fact and/or law when they took the sub judice decision.
(2)The sub judice decision was taken arbitrarily and/or in violation of the existing legislation and the principle of natural justice.
(3)The sub judice decision was based on non-existing factsand/or misconceived criteria whereas the real facts related to the present case were not taken into consideration.
(4)Thesub judice decision is not duly reasoned.
(5)The sub judice decision violates the principle of equality and causes discrimination against the applicant.
By his opposition counsel for the respondents contended that the sub judice decision does not amount to an executory administrative act in the sense of Article 146 of the Constitution and could not be challenged by a recourse. He further contended that the sub judice decision was taken properly and lawfully in accordance with the law, the regulations and the Constitution, in the proper exercise of the discretionary power of the respondents on the basis of all relevant facts and circumstances of the case and it is duly reasoned.
By his written address counsel for the applicant contended that the sub judice decision is of an executory nature as its effect was to deprive the applicant of the retirement gratuity to which he was entitled under s. 6 of the Pensions Law, Cap. 311. He further contended that under s. 12 of the Pensions Law the respondents were bound to pay to the applicant any gratuity to which he was entitled and they had no right to attach same as such gratuity is not assignable or transferable to anybody except under the provisions of paragraphs (a) and (b). In the present case the alleged debt to the Government was disputed by the applicant who, together with the other debtor who was jointly and severally liable with him on the alleged bond, brought an action in the District Court of Limassol under No. 3094/87 against the Director of the Department of Customs and Excise claiming the cancellation of such bond as having been signed under pressure and/or undue influence and/or fraud and/or false pretences, etc. Such action is still pending and, therefore the indebtedness of the applicant and his co-debtor has not been established and as such is not attachable for any debt due to the government. Counsel further argued that the decision contained in the letter sent to counsel for applicant is not duly reasoned.
In support of his contention that the principle of equality has been violated in this case counsel for applicant submitted thatwhereas in the case of his co-debtor who was also a police constable and had retired shortly before the applicant the whole amount of his gratuity was paid without the alleged debt having been taken into consideration, in the case of the applicant under similar circumstances and in respect of a debt jointly owed by him and his co-debtor he was deprived of his gratuity which was attached against the alleged debt. This, counsel submitted, clearly amounts to a violation of Article 28 of the Constitution. Counsel made reference to decided cases on this matter and concluded that the principle of equality of treatment in this case had been violated because the differentiation made between him and his co-debtor does not embody objective and reasonable justification.
Counsel for the respondent in reply to the arguments advanced by counsel for the applicant submitted that the sub judice decision does not amount to an executory act under Article 146 of the Constitution and, therefore, it could not be challenged by a recourse.
The respondents, counsel contended, did not deny the entitlement of the applicant to a retirement benefit but in the exercise of the powers vested in them under the law attached the amount of such benefit towards the indebtedness of the applicant to the respondents and set off such amount against the amount due by the applicant. This, counsel submitted, amounts to a financial difference within the ambit of private law and amenable within the jurisdiction of the Civil Courts. A question might have arisen if the respondents disputed the entitlement of the applicant to such benefit but not their refusal to pay after they have acknowledged that such amount was payable.
The decision of the respondents was taken on the basis of s. 12 of the Pensions Law. Cap. 311 which provides as follows:
"A pension, gratuity or other allowance granted under this Law shall not be assignable or transferable except for the purpose of satisfying:-
a) a debt due to the Government; or
b) an order of any Court for the payment of periodical
sums of money towards the maintenance of the wife or former wife or minor child of the officer to whom the pension, gratuity or other allowance has been granted,
and shall not be liable to be attached, sequestered or levied upon for or in respect of any debt or claim whatever except a debt due to the Government."
In support of his contention counsel for applicant sought to rely in the case of Tsiartziazis v. The Republic (1985) 3 C.L.R. 1 in which it was held that the refusal of the respondent is an executory administrative act within the domain of public law and as such can be subject to a recourse notwithstanding that it relates to a financial dispute because many of the disputes before the Administrative Courts are without doubt financial disputes as for instance tax matters. The Tsiartziazis case (supra), however, is distinguishable from the present case as in that case the administration denied that the applicant was entitled to the payment of gratuity whereas in the present case there is an admission that gratuity is payable but the amount due is attached by way of set off against a claim of the respondents.
In Kyriacopoulos Greek Administrative Law, 4th ed., vol. 3. p. 263 we read the following:
"Αι δε διαφοραί αι αφορώσαι εις την καταβολήν μισθών και λοιπών αποδοχών υπάγονται εις τα τακτικά δικαστήρια. Διαφοραί όμως περί τον καθορισμόν του μισθού και των λοιπών αποδοχών του υπαλλήλου, κατ' εφαρμογήν των σχετικών νόμων, υπάγονται, ως προς τον έλεγχον της νομιμότητος, εις το Σ.τ.Ε."
Also in the Conclusions from the case law of the Greek Council of State, 1929-1959 at pp. 235-236 we read the following:
"Απομένει προς έρευναν το ζήτημα της χρηματικής διαφοράς της γεννώμενης εκ μονομερούς πράξεως της Διοικήσεως, εκδιδομένης επί τη βάσει κανόνων του διοικητικού δικαίου.
Εις την τελευταίαν ταύτην περίπτωσιν γίνεται δεκτόν υπό της νομολογίας του Συμβουλίου της Επικρατείας, ότι εφ' όσον το αντικείμενον της αμφισβητήσεως περιορίζεται εις απαίτησιν συγκεκριμένου χρηματικού ποσού, δεν υφίσταται δε ενδεχόμενον άλλης τινός εφαρμογής ή άλλης συνεπείας της προσβαλλομένης διοικητικής πράξεως, αρμόδια τυγχάνουν τα πολιτικά δικαστήρια. Ούτω εκρίθησαν ως υπαγόμενα εις την αρμοδιότητα των πολιτικών δικαστηρίων η απαίτησις περί επιστροφής αχρεωστήτως καταβληθέντος φόρου, εφ' όσον δεν υφίσταται ειδική διάταξις επιβάλλουσα την έκδοσιν διοικητικής πράξεως περί επιστροφής, η αίτησις η στρεφόμενη κατά πράξεως αρνούμενης την καταβολήν χρηματικής οφειλής του Δημοσίου, ως αρνήσεως προς καταβολήν συντάξεως. Επίσης εθεωρήθη ως αστικής φύσεως χρηματική διαφορά η συνισταμένη εις αμ-φισβήτησιν περί της συνδρομής ή μη των προϋποθέσεων υφ' ας κατατεθείσα εγγύησις καταπίπτει υπέρ του Δημοσίου, ως και η αναγόμενη εις αποζημίωσιν λόγω πλημμελούς εφαρμογής του νόμου.
Αι περί των μισθών, αποζημιώσεων, επιδομάτων και αποδοχών εν γένει δημοσίου υπαλλήλων διαφοραί, συνδεόμεναι αμέσως προς την κατά νόμον ρύθμισιν της δημοσιοϋπαλληλικής σχέσεως, ούσης δημοσίου δικαίου, και μη εντοπιζόμεναι εις απλήν διεκδίκησιν συγκεκριμένου χρηματικού ποσού, παραδεκτώς φέρονται ενώπιον του Συμβουλίου Επικρατείας κατόπιν αιτήσεως ακυρώσεως. Ούτω γίνεται τύποις δεκτή αίτησις προσβάλλουσα πράξιν καθορισμού αποδοχών δημοσίου υπαλλήλου ή παράλειψιν της Διοικήσεως όπως καταβάλη εις τον υπάλληλον προσθέτους αποδοχάς, ενώ η αξίωσις περί καταβολής δεδουλευμένων μισθών αναδρομικώς εκ μέρους δημοσίου υπαλλήλου, εφ' όσον διά της σχετικής διοικητικής πράξεως δεν θίγεται η υπηρεσιακή κατάστασις αυτού, δημιουργεί χρηματικήν αποκλειστικώς διαφοράν, υπαγομένην εις την αρμοδιότητα των πολιτικών δικαστηρίων. Υπό το αυτό πνεύμα εκρίθη απαράδεκτος αίτησις προσβάλλουσα απαίτησιν περί καταβολής μισθού λόγω. παρανόμου παύσεως υπαλλήλου ή στρεφόμενη κατά αρνήσεως της Διοικήσεως όπως καταβάλη εις απολυθέντα υπάλληλον τας αποδοχάς του, δι' ον χρόνον ετέλει εισέτι εν υπηρεσία.
Εφ' όσον όμως διά της αρνήσεως χορηγήσεως αποδοχών, έστω και δεδουλευμένων, θίγεται η υπηρεσιακή κατάστασις του υπαλλήλου και, μέσω ταύτης η λειτουργία της δημοσίας υπηρεσίας, γίνεται δεκτή η αίτησις ακυρώσεως.
Bearing in mind the above principles, in the circumstances of the present case, I find that the refusal of the respondents to pay to the applicant the retirement benefits to which admittedly he was entitled and attach such amount under the provisions of s. 12 of the Pensions Law, Cap. 311, against the amount due by the applicant, amounts to a financial dispute which is not an executory administrative act subject to a recourse under Article 146 of the Constitution but it is a dispute within the ambit of the Civil Law and as such amenable only before a civil Court.
The question of violation of Article 28 does not arise in the present case as the co-debtor of the applicant retired on a different date earlier to the applicant. Furthermore from what it appears from the material before me, the attention of the Minister of Finance was drawn to this fact when the case of the applicant was under consideration and it was not within the respondents' contemplation at the time when the co-debtor of the applicant had retired. In any event if the respondents acted in contravention of the provisions of s. 12 of Cap. 311 such contravention being contrary to the law would not have entitled the applicant to seek refuge to s. 28 of the Constitution as there cannot be equality arising from an illegal act.
For all the above reasons the recourse fails and is hereby dismissed but in the circumstances of the case I make no order for costs.
Recourse dismissed. No order as
to costs.