(1981)1981 October 24 [MALACHTOS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDREAS PARASKEVAS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH
- THE MINISTRY OF EDUCATION,
- THE EDUCATIONAL SERVICE COMMITTEE, Respondent. (Case No. 261/76). Educational Officers—Probationary appointment for two years·— Whether it becomes automatically permanent, after the lapse of two years, without confirmation—Disciplinary conviction and sentence of officer serving onprobation—Head of Department not recommending himfor permanent appointment—Respondent Committee deciding to terminate his services, affording him opportunity to make representations against such termination and terminating his services after hearing his representations—Nothing improper in such course of action—Section 30 of the Public Educational Service Law, 1969 (Law 10/69). 5 10 Natural Justice—Rules of—Rule that no one is to be punished twice ' for the same offence—Public Officers—Disciplinary punishment —And administrative measure taken in the interest of the public service—Distinction—Disciplinary conviction and sentence of public officer serving on probation—Head of Department not 15 recommending him for permanent appointment and his services terminated—Such termination not a disciplinary punishment but an administrative measure—Above rule not violated. Public Officers—Disciplinary conviction and punishment—And administrative measure taken in the interest of the Public Service— 20 Distinction. Administrative measure—Disciplinary conviction and punishmentDistinction. 420 3 C.L.R. 5 10 15 20 25 30 Paraskevas v. Republic The applicant has since August, 1972 been serving on probation as a teacher of theological lessons in Secondary Education Schools. By a decision of the Council of Ministers dated September 20, 1973 his services were terminated in the public interest by the Council of Ministers. By a decision of another Council of Ministers,whichwasappointed after the Coup d'etat to July 15, 1974, the termination of his services was annulled and he resumed his duties in October,
- In May, 1976 he was found guilty by the respondent Educational Service Committee of certain disciplinary offences concerning neglect ofduty and for activities amounting to breach ofduty or obligations of an educational officer and the sentences of stoppage of increment,fine,reduction of his salary scale and disciplinary transfer were imposed on him. Following this conviction and sentence the Inspector of Theological lessons by letter dated May 28, 1976, addressed to the Head of the Department of Higher and Secondary Education expressed his intention not to recommend the applicant to the permanent post of teacher of theological lessons. This letter was transmitted for action to the respondent Committee which decided* in accordance with section 30
(2)of the Public Educational Service Law, 1969 (Law 10/69) to terminate the appointment on probation of the applicant and also to give him notice calling upon him to make any representations hewished to make against such termination. The applicant appeared before the Committee on August 25, 1976and made his representations through an advocate. After taking into consideration these representations the Committee found that there existed no reason to reconsider its previous decision and decided that the appointment on probation of the applicant beterminated asfrom the 1stSeptember, 1976. Hence this recourse. Counsel for the applicant mainly contended: (a) That section 30of thePublic Educational Service Law, 1969 (Law 10/69) was totally inapplicable. 35 (b) That in taking the subjudice decision the respondent Committee took into account the disciplinary punishment which it had itself imposed on the applicant and so he was punished twice for the same offences; • The decision is quoted at p. 425 post. *· Section 30
(2)is quoted at pp. 427-28 post. 421 Paraskevas τ. Republic
(1981)and that in so doing the Committeeviolated the rules of naturaljustice as it could have dismissed him there and thenwhen he was found guilty of the disciplinary offences of which he was found guilty. (c) That the final decision to dismiss applicant was taken on June 28, 1976 and before the applicant was called upon to make his representations. 5 Held,
(1)that the Committeehad not dealt with the question of confirmation,extentionor terminationof applicant'sappoint ment as there were disciplinary proceedings pending against 10 him up to May, 1976 and, consequently, the submission of the final confidential report in accordance with section 36
(2)of Law 10/69 could not be submitted earlier; that,moreover,there is nothing in law 10/69 to indicate that after the lapse of two years of service an appointment on probation becomes auto- 15 matically permanent without the educational officer concerned being confirmed; accordingly contention (a) should fail.
(2)That the principle that no one is punished twice for the same offence (non bis in idem) has no application when for the same offence for which the civil servant was punished dis- 20 ciplinarily an adverse administrative measure is also about to be imposed, because the administrative measures which are taken by the Administration not for the purpose of exercising disciplinary authority but for the sake of the interest of the public service as it is the transfer, suspension of service, etc., 25 do not amount to disciplinary punishment;that,consequently, an act for which the disciplinary punishment has been imposed may legally justify the additional taking of the administrative measures (see Conclusionsfrom Case Law of the GreekCouncil of State 1929 to 1959 page 368); that, therefore, the dismissal 30 of the applicantinthepresentcase was anadministrativemeasure and the allegation that the applicant was punished twice for the same offence cannotstand;accordingly contention (b)should fail.
(3)That it is clear from the relevant minutes of the Meeting 35 of 28th June, 1976, that the Committeeexpressed theintention to terminate the services of the applicant; that this intention was communicated to the applicant together with the reasons for such intentionand hewas called upon to make his represen tations; that in so doing the Committeeacted in full conformity 40 422 3 C.L.R. Paraskevas v. Republic with the provisions of section 30
(2)of the law and took the final decision on August 25, 1976; accordingly contention (c) should, also, fail. Application dismissed. 5 Cases referred to: Decision of theGreek Council ofStateinCase No.1005/
- Recourse. Recourse against the decision of the respondents whereby applicant's services as a teacher of secondary education were 10 terminated and/or applicant was dismissed from such service. L. N. Clerides with C.Adamides, for the applicant. A. S. Angelides,for the respondents. Cur.adv.vult. MALACHTOS J. read the following judgment. The applicant 15 in this recourse claims a declaration of the Court that the act and/or decision of the respondents by which they terminated hisservicer as a teacherofsecondaryeducation and/ordismissed him from such service, which is contained in the letter of26th August, 1976,isnullandvoid and of nolegaleffect whatsoever. 20 The relevant facts of the case as they appear in the documentary evidence adduced are the following: The applicant, who is a Theologist, was first appointed on contract as a teacher ofTheological lessonsin secondary education on 15.3.65 for the period ending 9.5.65 in replacement of 25 another teacher at the 1st Gymnasium of Paphos. He was then reappointed on contract as from 1.9.65 to 31.8.67 in a private school and as from 15.9.67 to 31.8.71 at the English School in Nicosia. He was again reappointed on contract from 23.9.71 to 31.8.72 at the Paralimni and Lysi Gymnasium 30 and theTechnical School inNicosia. On22.9.72hewas offered bythe respondent Authority permanent appointment on probation on scale BIO as from 21.8.72 which he accepted by letter dated 2^.9.
- According to section 30
(1)of the Public Educational Service Law, 1969 (Law 10/69) the probation period 35 wasfor two years as from 21.9.72. By Decision No. 12684 of the Council of Ministers dated 20.9.73, the services of the applicant were terminated as from that dateinthe publicinterest. This decision, asstated therein, .423 Malachtos J. Paraskevas v. Republic
(1981)was based on section 8 sub-section 1(
- e)and2 of the Pensions of Secondary Education Teachers' Law of 1967 (Law 56/67). As against this decision the applicant filed on 19.11.73 Recourse No. 550/73. Before the determination of that recourse by the Court, 5 another Council of Ministers, which was appointed after the coup d'etat of 15thJuly, 1974,by its Decision No. 13421,which was published in the 4th Supplement of the Official Gazette of the Republic on the 2nd August, 1974, annulled Decision No. 12684 and in consequence thereof applicant,on 18.10.74 10 resumed his duties as a teacher of secondary education at the Agricultural Gymnasium of Nicosia. On 28.2.75 as a result of accusations against the applicant for disciplinary offences, the Inspector of Theological Lessons Mr.A.Mitsides,wasappointedbytheCommitteeofEducational 15 Service, as the appropriate authority, as investigating officer by virtue of paragraph 1 of Part I of the Second Schedule of the Public Educational Service Law of 1969, to carry out the relevant investigations. Asa result ofthesaidinvestigations theapplicant wascharged 20 under four counts before the respondent Committee and was finallyon 6.5.76 sentenced on all of the counts as follows: On count 1, stoppage of his annual increment for a period of six months, on count 2, £50.—fine, on count 3 to a reduction of his salary scale and on count 4, disciplinary 25 transfer as from 1.9.76, to the Paralimni Gymnasium. Thedecision ofthe respondent Committee wascommunicated to ths applicant by letter dated 13.5.76. Inview ofthe above conviction and sentenceofthe applicant, the Inspector of Theological Lessons by letter dated 28th May, 30 1976, addressed to the Head of the Department oi Higher and Secondary Education, expressed his intention not to recommend theapplicant to thepermanent post of Teacher ofTheological Lessons Secondary Education. Thisletterwastransmitted for further action to the Chairman of the Committee of Educa- 35 tional Service on 26th June, 1976, and as a result a meeting on this subject was convened by the said Committee on 28th 424 3 C.L.R. Paraskevas v. Republic Malachtos J. June, 1976 and, as it appears from its Minutes, it decided as follows: 5 "(
- i)Whereas the final report of the Inspector together with an attached note thereto has already been submitted, and 10 (
- ii)Whereas as the teacher wasfound guilty of disciplinary offences concerning neglect of duty and for activities amounting in a way to breach of duty or obligations of an educational officer (see minutes of 16th April, 1976), and he was sentenced by the Committee t o : (
- a)stoppage of his annual increments for a period of six months— (
- b)a fine of £50.— (
- c)reduction of his salary scale; and 15 20 25 30 35 (
- d)disciplinary, transfer (see minutes of 16th April, 1976), (iii) Whereas from all the service·and,other elements and documents which were put before the Committee it transpires that the behaviour of the teacher during his period of probation was not such as it ought to be, and (
- iv)Whereas after studying the personal file and confidential reports of the teacher the Committee reached the conclusion, in view of the above mentioned, that his stay in schools is not for the benefit of education, For all these, the Committee decides that, in accordance with section 30
(2)of the Public Educational Service Law (10/69) the appointment on probation of the above teacher be terminated on 31st August, 1976, and that, according to the same section, notice be given of the intention for termination of his services, and the teacher be called upon to make representations that he may wish to submit as against such termination. It is further decided that the Committee fix an appointment with the teacher at 9 a.m. on 20th August, 1976, in order that he may present verbally if he so wishes, his representations before it". 425 Malacfatos J. Paraskevas v. Republic
(1981)A copy of theabove decision was transmittedto the applicant by letter dated 28th June,
- On 20th August, 1976, the applicant appeared in person before the Committeeand made his representations and he was given time up to 30th August, 1976 to appear before the Committeerepresented by an advo- 5 cate, when on that day the Committeewould take a final deci sion. On 25th August, 1976, the applicant again appeared before the Committee represented by advocate and made his repre sentations. As it appears from the Minutes of 25th August, 1976, the Committee after taking into consideration the representations of the applicant and his advocate found that there existed no reason to reconsider its decision of the 28th June, 1976, for the termination of his services. So,itdecidedthattheappointment 15 on probation of the applicant be terminated as from 1st September, 1976, for the reasons appearing in its decision dated 28th June,
- This decision was verbally communi cated to the applicant and his advocate thereand then. Appli cant was also informed in writing of the above decision of the 20 respondent by letter dated 26th August,
- As a result the applicant on the 30th October, 1976, filed the present recourse. Counsel for applicant in arguing this recourse submitted thatthedecisionoftherespondentCommitteeshouldbedeclared null and void because section 30 of Law 10/69 was totally 25 inapplicable tothefacts of thecase as thestatus of theapplicant at thematerialtimewas governed by thedecisionof the Council of Ministers No. 13421, which status was that of a permanent teacher of Theology who was in continuousservice since
- This decisionwhichrevoked theprevious decision of theCouncil 30 of Ministers that purported to terminate the services of the applicant on the ground of public interest, is to the effect that therewas nobreak inhis service. Thisis thecorrectinterpreta tion of the latter decision of the Council of Ministers. Section 30 of Law 10/69 is dealing with appointments of 35 educational officers on probation and is as follows: "30.-(l) ΜόιημοςδιορισμόςγίνεταιfrriδοκιμασίαΒία διετή χρονικήν περίοδον: Νοείται ότι ή Επιτροπήδύναται εί$πδσαυ είδικήνπερί426 10 3 CX.R. Paraskevas v. Republic Malacbtos J. πτοοσιν τή συμβουλή της αρμοδίας αρχής καΐ συμφώνως προς οιασδήποτε γενικάς έπ! τούτω οδηγίας διδομένας Οπό τοϋ Υπουργικού Συμβουλίου, νά μή απαίτηση χρονικήν περίοδον δοκιμασίας ή νά μειώση ή παρατείνη ταύτην. 5 10 15 20 25
(2)Ό διορισμός εκπαιδευτικού λειτουργού υπηρετούντος επί δοκιμασία δύναται να τερματισθή καθ* οίονδήποτε χρόνον διαρκούσης της χρονικής περιόδου δοκιμασίας, αλλά, πρίν ή γίνη ό τοιοϋτος τερματισμός, δέον νά Βοθή είς τον Ικπαιδευτικόν λειτουργόν είδοποίησις τής προς τερματισμόν προθέσεως περιέχουσα τους λόγους καΐ καλούσα τούτον όπως προβή είς οίασδήποτε παραστάσεις, τάς οποίας Θά έπεθύμει να υποβάλη εναντίον τοϋ τοιούτου τερματιομοΰ. ΈΓΓΙ τή λήψει και έΕετάοει οίωνδήποτε παραστάσεων ή 'Επιτροπή δύναται είτε νά τερματίση τόν διορισμού είτε νά παραιείνητήν χρονικήν περίοδον δοκιμασίας διάτοσαύτην χρονικήν περίοδον, μή ύπερβαίνουσαν τά δύο'έτη, δσην ή "Επιτροπή είς έκάστην περίπτωσιν ήθελε θεωρήσει κατάλληλον. Αϊ διατάζεις ιού παρόντος εδαφίου εφαρμόζονται επί πάσης'παραταθείσης περιόδου δοκιμασίας.
(3)'Εντός ενός μηνός άπό της λήϋεως της χρονικής περιόδου δοκιμασίας ή 'Επιτροπή αποφασίζει κατά πόσον ό διορισμός εκπαιδευτικού λειτουργού υπηρετούντος επί δοκιμασία θά έπικυρωθή, πσραταθή ή τερματισθή. 'Εάν ό διορισμός έπικυρωθή ή τερματισθή, είδοποίησις περί τούτου δημοσιεύεται είς τήν έπίσημον εφημερίδα τής δημοκρατίας." ("30
(1)Permanent appointment is made on probation for the period of two years. 30 35 Provided that the Committee may in every special case on theadvice of the appropriate authority and in accordance with any general instructions on this matter given by the Council of Ministers, not require any period of time of probation or to reduce or extend such period.
(2)The appointment of an educational officer serving on probation may be terminated at any time during the period of probation, but, before such termination is effected, it should be given to the educational officer notice of the intention to terminate containing the reasons and calling him to make any reprefentations which he might wish to 427 Malachtos J. Paraskevas v. Republic
(1981)submit against such termination. Upon receiving and after examination of any representations, the Committee may either terminate the appointment or extend the period of time ofprobation for anysuch period of timenotexceeding two years, to the extent the Committee in any given 5 casewould consider proper. Theprovisions of the present subsection apply on everyextension ofthe period of probation.
(3)Within one month from the expiration of the period of time of probation the Committee decides as to whether 10 the appointment on probation of an educational officer will beconfirmed, extended or terminated. If the appointment is either confirmed or terminated, a notification is published in the Official Gazette of the Republic"). I must straight away say that I find no merit in the above 15 submission of counsel. Thefact that the applicant was offered permanent appointment on probation to the post of teacher of Theological Lessons in Secondary Education asfrom 21.9.72, which offer was accepted by him, cannot be disputed and the relevant offer and acceptance appear in the personal file of the 20 applicant and are blues 57and 58, respectively. His previous appointments weretemporary and on a contractual basis. He had completed two years of service on probation in July, 1975 sincefor theperiodfrom 20.9.73up to July, 1974wasdismissed by virtue of a Decision of the Council of Ministers. 25 TheCommitteedidnot dealwiththequestionof confirmation, extension or termination of his appointment as thereweredisciplinary proceedings pending against him up to May, 1976 and,consequently,thesubmissionofthefinal confidential report of the Inspector of Theological Lessons in accordance with 30 section 36
(2)of Law 10/69,could not be submitted earlier. Furthermore, there is nothing in Law 10/69 to indicate that after thelapse oftwo yearsof servicean appointment onprobation becomes automatically permanent without the educational officer concerned being confirmed. Counselfor applicant further submitted that ifit isfound by the Court that the applicant was at the material time serving on probation and that section 30 of the Law was applicable, 428 35 3 C.L.R. Paraskevas v. Republic MalacMos J. the decision complained of should again be declared null and void as it conflicts with the provisions of sub-sections 1 and2 of thissection. Heargued that inthefirstplacetherespondent Committee in issuing the decision complained of, took into 5 accountthedisciplinary punishmentwhich this very sameCom mittee had imposed on the applicant and so he was punished twice for the same offences. In so doing the Committee vio lated the rules of natural justice as it could have dismissed him thereand then when hewas found guilty of the disciplinary 10 offences of which he was charged. He further argued that in the second place, the respondent acted contrary to the provisions of sub-section 2 of section 30 of the Law, as it terminatedhis appointment before givinghim the opportunity to be heard and make his representations as 15 provided by the said sub section. Theprinciplethatnooneispunishedtwicefor thesame offence (non bis in idem) has no application when for the same offence forwhich thecivilservant was punished disciplinarily an adverse administrative measure is also about to be imposed. Because 20 theadministrative measures which are taken by the Administra tion not for the purpose of exercising disciplinary authority but for the sake of theinterest of the public service, as it is the transfer, suspension of service, etc., do not amount to disci plinary punishment. Consequently, an act for which the disci25 plinary punishment has been imposed may legally justify the additional taking of the administrative measures. (SeeConclu sions from Case Law of the Greek Council of State 1929 to 1959 page 368). Thisviewfindssupport inCaseNo. 1005/1933 of the Greek Council of State reported in Volume Β III 878 30 where at page 881 we read: 35 40 "Not only the administrative measures are not excluded as a result of previous disciplinary proceedings, which are taken by the Administration in order to secure theproper functioning of the Public Service in general, but on the contrary,the real circumstancesonthebasis of which disci plinary proceedings were instituted, the Administration may later take into account and use them for the purpose of taking administrative measures, such as dismissal, discharge from the military service, demotion, transfer, etc.". 429 Malachtos J. Paraskevas v. Republic
(1981)In view of the above principles I consider the dismissal of the applicant in the present case as an administrative measure and the allegation, therefore, that the applicant was punished twice for the same offence cannot stand. • Finally, I must say that I do not agree with the submission 5 of counsel that the final decision to dismiss the applicant was taken on 28th June, 1976, and before the applicant was called upon to make his representations. It isclear from the Minutes oftheMeetingof28th June, 1976,that theCommitteeexpressed the intention to terminate the services of the applicant. This 10 intention was communicated to the applicant together with the reasons for such intention and he was called upon to make his representations. In so doing the Committee acted in full conformity with the provisions of section 30
(2)of the Law. Thefinaldecision of the Committee was taken on 25th August, 15 1976 and was communicated to the applicant by letter dated 26th August, 1976. For all the above reasons, this recourse is dismissed with no order as to costs. Application dismissed. No order 20 as to costs. 430