1977 Oct 29 — PANAYIOTIS GAVRIEL v. REPUBLIC (MINISTRY OF EDUCATION) [L. LOIZOU, J.) IN T H E MATTER OF ARTICLE 146 OF THE CONSTITUTION PANAYIOTIS GAVRIEL, Applicant, • THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF EDUCATION, Respondents. (Case No. 72/74). Administrative Law—Misconception of fact—Retirement of educational officer on grounds of health—By relying on contents of Medical report which contained the reasons that led to sub judice retirement—Applicant's personal file giving full picture of the condition and progress of his state of health—Nothing 5 to indicate or suggest that respondents could have been labouring under any misconception of fact as to the material facts of the case. Educational Officer—Retirement misconception of fact. of, on grounds of health—No 10 The applicant in this recourse challenged the validity of the decision of the respondents to retire him from the Educational Service of the Republic on grounds of health. The decision complained of was taken as a result of a report* of a Medical Board in which it was stated that applicant suffered from a 15 psychic disease and was considered as unsuitable for the post of instructor. Counsel for the applicant contended that the respondents have acted in excess and in abuse of their powers and under a misconception of facts as to the condition of health of the 2 0 applicant and, also, that the sub judice decision was not duly reasoned. Held, dismissing the recourse, that apart from the report of the Medical Board which in itself contains the reasons *Quoted in full atpp. 408-409post. 406 which led to the decision challenged by the recourse there is the personal file of the applicant which gives a full picture of thecondition and the progress of his state of health and there is nothing to indicate that the respondents could have been labouring under any misconception as to the material facts of thecase;and that, accordingly, therecourse must be dismissed. Application dismissed. Recourse. Recourse against the decision of the respondent to re10 tire applicant from the Educational Service of the Republicongrounds of health. D. Koutras for E. Efstathiou, for the applicant. 15 A. M. Angelides, Counsel of the Republic, for the respondents. Cur. adv. vult. Thefollowing judgment wasdelivered by:- L.LOIZOU,J.: The applicant by this recourse challenges the validity of the decision of therespondents to retire him from the Educational Service of the Republic on grounds 20 of health and prays for a declaration that such decision is illegal and of no effect. The grounds of law upon which the application is based are the following: 25 30 35 "
- The respondents acted inexcess and/or in abuse of their powers in that they took into consideration facts and/or situations based on personal impressions and/or on facts not corresponding to the provisions of the law.
- When the respondents took the decision challenged by this recourse they were labouring under a misconception of the facts in that they did not take into consideration and/or were not aware and/or disregarded the abilities and the actual state of the health of the applicant.
- The decision challenged is not duly reasoned". The facts of the case as set out in the application are as follows: 407 1977 Oct 29 PANAYIOTIS GAVRIEL v. REPUBLIC (MINISTRY OF EDUCATION) 1977 Oct. 29 PANAYIOTIS GAVRIEL v. REPUBLIC (MINISTRY OF EDUCATION) The applicant is an instructor in general metal work and was serving at the Nicosia Technical School. He was first appointed at the Limassol Technical School for the school-year 1963-1964 and subsequently he served at the Technical Schools of Famagusta, Polis Chrysochous and Nicosia. 5 On the 23rd November, 1973, he received a letter of even date from the Director-General, Ministry of Educa tion, informing him that his retirement from the Public Educational Service on grounds of health had been ap- 10 proved with effect from the 1st February, 1974 and that until the date of his retirement he would be receiving his emoluments in full. This letter is blue No. 62 in his per sonal file exhibit 2 in these proceedings. The decision complained of was taken as a result of 15 the report of the Medical Board (exhibit 1) which was held on the 10th October, 1973 in consequence of a writ ten request by the Head of the Technical Education con tained in a letter dated 22nd September, 1973 (blue 57 in exhibit 2) addressed to the Director of Medical Services 20 and informing him that the applicant showed psychicanomalies and that his condition was considered very dan gerous for the safety of the students. The report of the Medical Board reads as follows: «Ώς εμφαίνεταιέκ τών παρ'ήμΐν τηρουμένων αρχείων, 25 ό ώς άνω αναφερόμενοςένοσηλευθη παρ'ήμΐν, ώς εσω τερικός ασθενής άπό 16.10.1964 μέχρι 6.3.1965, πά σχων έκ ψυχικού νοσήματος. 'Εξελθών τώνΙδρυμάτων κατά την ώς άνω ήμερομηνίαν, Ικανώς βελτιωθείς, συ νεχίζει παρακολουθούμενοςώς εξωτερικός ασθενής και 30 τελεϊ υπόφαρμακευτικήν θεραπείαν.
- Κατά την σημερινήν έξέτασίν, παρουσιάζεται ή ρεμος, πλην δμως δεν έχει έπίγνωσιν της καταστάσεως του και αρνείται την ύφ' ημών είσηγουμένην συνερνασίαν του προς θεραπευτικήν άντιμετώπισιν* παρουσιάζει 35 επίσης έκδηλα στοιχεία της υποκείμενης "ψυχικής του νόσου.
- Ώ ς έκ τών ώς άνω, θεωροϋμεν τοΰτονάκατάλληλον διά την θέσιν έκπαιδευτοΰ, ήτις προϋποθέτει έπα408 φήν μετά νεαρών μαθητών, παρ' δλον οτι θάήδύνατο κατά τήν γνώμην μας, νά άσχοληθή με άλλου είδους έργασίαν, ήτις δέν θά προϋπέθετε έπικοινωνίαν μετά νεαρώνμαθητών». 5 10 15 20 ("As it appears from the material in our files the above-mentioned was under treatment as an in-pa tient from 16.10.1964 to 6.3.1965 suffering from a psychic disease. Having being discharged on the above date and his condition having substantially improved, he continues been followed as an out-pa tient and is under a medicinal treatment.
- During to-day's examination he is calm but he is not aware of his condition and refuses theco-ope ration suggested by us in order to confront his condition curatively; he also presents manifest symptoms of his psychic disease. .
- In view of the above we consider him as un suitable for the post of instructor, which pre-supposes contact with young students though he could, in our opinion, be employed in another type of work, which would not involve contact with young stu dents"). Learned counsel for the applicant in his short address stated that the grounds of law upon which the applica25 tion is based are that the respondents have acted in excess and in abuse of their powers and under a misconception of facts as to the condition of the health of the applicant and also that the decision complained of was not duly reasoned. He contended that during the whole period of 30 his service he discharged his duties satisfactorily and that the Directors of the schools where he served were satisfied with the condition of his health. With regard to the re port of the Medical Board exhibit 1 he submitted that in fact applicant's health was not bad to such a degree as to 35 justify his retirement on medical grounds. He added that the state of his health at the time he was examined by the Medical Board was due to mental fatigue which with the passage of time has improved. He concluded by saying that the applicant felt that an injustice had been done to 40 him and prayed that the decision complained of be de clared void. 409 1977 Oct. 29 PANAYIOTIS GAVRIEL v. REPUBLIC (MINISTRY OF EDUCATION) 1977 Oct. 29 PANAYIOTIS GAVRIEL v. REPUBLIC (MINISTRY OF EDUCATION) Learned counsel for the respondents on the other hand contended that the decision was lawfully taken and that it is fully reasoned. In addition he raised the question of time limit and submitted to the Court that the recourse wasfiled out of time. With regard to the latter point according to my calculation the recoursewasfiled on the 75thday after thedecision challenged was taken and it is not, therefore, out of time.With regard to thepoints raised bylearnedcounsel for the applicant apart from the report of the Medical 10 Board whichinitself contains thereasonswhichledtothe decision challenged by the recourse there is the personal file of the applicant which gives a full pictureof thecondition and the progress of the state of hishealth and there is nothing to indicate or suggest that the respondents 15 could have beenlabouring under any misconception as to thematerialfactsof thecase. In the circumstances it cannot in my view be said that any of the grounds raised or argued on behalf of the applicant have been substantiated. On the contrary, having 20 regard to the material before them the respondents could hardly have reasonably reached any other decision. In the result this recourse fails and it is hereby dismissed. In all the circumstances there will be no order as to 25 costs. Application dismissed. No orderastocosts. 410 5