(1982)1982 October 23 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION GEORGHIOS PAPAONISIFOROU, Applicant, v. THE EDUCATIONAL SERVICE COMMISSION, Respondent. (Case No. 310/79). Administrative Law—Administrative decision—Material misconception offact—Or evenprobability of its existencejustifies the annulment of the administrative decision reached under such misconception —Disciplinary convictionof educationalistfor allegedlyexpressing himself publicly in an unbecoming manner—Probability that sub 5 judice decision reached under a material misconception as regards what had actually been said by applicant—Conviction annulled. The applicant, a school-teacher in elementary education, was found guilty of a disciplinary offence the particulars of which were that he had expressed himself publicly and 10 in an unbecoming manner against the late President of the Republic Archbishop Makarios. The evidence of the only witness, whose testimony might be treated as implicating the applicant, showed that he could not state exactly what had been said by the applicant on the paiticular 15 occasion; also, this witness appeared to ha\e conceded that what he stated in evidence was his own evaluation of what was said by the applicant. Upon a recourse by the applicant: Held, that a material misconception of fact, or even the proba- 20 bility of its existence,justifies the annulment of the administrative decision reached under such misconception; that in this case the applicant has succeeded in persuading this Court that there 1182 3 CUR. Papaonisoforou v. Republic exists at least a probability that the sub judice decision of the respondent Commission was reached under a material miscon ception as regaids what had actually been said by the applicant at the incident in question; accoidingly the sub judice decision must be annulled. Subjudice decision annulled. 10 15 Cases leferred to: , Christodoulou v. Cyprus Telecommunications Authority
(1978)3 C.L.R. 61 at p. 69; , Kontos v. The Republic
(1974)3 C.L.R. 112 at p. 129; HjiMichael v. The Republic
(1972)3 C.L.R. 246; Malhurosv. TheElectricity Authority of Cyprus (1974Ϊ 3C.L.R. 220 at p. 224; Thalassinos v. 77«?Republic (1974^ 3 C.L.R. 290 at p. 294; Photiades & Co. v. The Republic, 1964 C.L.R. 102 at p.
- Recourse. Recourse against the decision of the respondent wheieby applicant was found guilty of conduct incompatible with his duties and obligations as an educationalist and was punished 20 by a fine of £100.A. Markides, for the applicant. G. Tornaritis with AS. Angelides, for the respondent. Cur. adv. vult. TRIANTAFYLLIDES P. read the following judgment. By means 25 of the present recourse the applicant challenges the decision of the respondent Educational Service Commission by virtue of which he was found guilty of conduct imcompatible with his duties and obligations as an educationalist and was punished by a fine of C£
- The said decision was communicated to 30 the applicant by a letter dated 6th July
- The applicant was, at all material times, a school-teacher in elementary education. By a letter dated 23rd January 1978, which was addressed to theapplicant by the Chairmanof the respondent Commission, 35 therewere preferred against himdisciplinary charges for conduct incompatible with his duties and obligations as an educationalist and for involvement in political activities. 1183 Triantafjllides P. Papaonisoforou v. Republic
(1982)On 22nd June 1979 the applicant was found guilty in respect of one of the charges and was acquitted in respect of the other. Accoid'ng to the particulars of the charge on which the applicant was found guilty, he, allegedly, had expressed himself publicly and in an unbecoming manner against the late President 5 of the Republic Archbishop Makarios. The only witness, whose testimony might be treated as implicating the applicant, was Georghios Demetriades, the Secretary of the District Education Office in Paphos. A perusal of h>s evidence shows that th's witness could not 10 state exactly what had been said by the applicant on the particular occasion; also, this witness appears to have conceded that what he stated in evidence was his own evaluation of what was said by the applicant. One of the submissions put forward by counsel for the appli- 15 cant was that in view of the nature of the evidence against the applicant the Commission has most probably acted under a misconception as tomaterial facts, namely as to what had actually been said by the applicant at the incident in question. It has been repealedly stated by this Couit, in a number of 20 cases, that a material misconception of fact, or even the probability of its existence, justifies the annulment of the administrative decision reached under such misconception. In Christodoulouv. The Cyprus Telecommunications Authority,
(1978)3 C.L.R. 61, the following were slated (at p. 69): 25 "„....and that a material misconception of fact, or even the probability of its existence, justifies the annulment of an administrative act oi decision is a well-settled principle of administrative law (see, inter alia, Ioannides v. The Republic,
(1972)3 C.L.R. 318, 324, 325, 326 and Hji- 30 Michael and Others v. The Republic.
(1972)3 C.L.R. 246, 252)". In the case of Kontos v. The Republic,
(1974)3 C.L.R. 112, Hadj-'a'nastassiou J., in annulling the sub judice decision in that case, said (at p. 129): " I am of the opinion that the applicant has succeeded 1184 35 \ 3 C.L.R. \ V \ \ 5 \ \ 10 15 20 Papaonisiforou v. Republic TriantafylHdes P· iii rendering possible the existence of a misconception of fact, and/or indeed that there was no proper evaluation of all the facts on the part of the administration; and because I have doubts in my mind I am not inclined to follow the presumption in favour of the correctness of the findings of fact". \ There are to be found dicta to the same effect in the case of HjiMichael v. The Republic,
(1972)3 C.L.R. 246, which were adopted in the case of Mallouros v. The Electricity Authority of\Cyprus,
(1974)3 C.L.R. 220, where (at p. 224) A. Loizou J. said: \ "In this respect, 1 was referred to the case of HjiMichael v. The Republic
(1972)3 C.L.R. 246, at p. 252, where it is stated—'According to the principles of administrative law there exists a presumption that an administrative decision isreached after a correct ascertainment of relevant facts; but such presumption can be rebutted if a litigant succeeds in establishing that there exists at least a probabilitythat amisconception hasledtothetaking of the decision complained of (see, inter alia, Stassinopoulos on The Law of Administrative Acts, p. 304 et seq.)' ". ..Also, in the judgment of the Full Bench of this Court in the case of Thalassinos v. The Republic,
(1974)3 C.L.R. 290, the following were stated (at p. 294): 25 30 35 "In view of the foiegoing we cannot exclude the really great probability that the Commission, in making the secondments complained of, has been labouring under the material misconception that the Directoi-General had conveyed to it the recommendations of a Departmental Board which had been established under section 36; and we have described it as a 'material misconception' because there is, in our opinion, a real difference, indeed, between the functioning of a Departmental Board, established by the Council of Ministers under the said section, and a meeting—as in fact it has happened—between the Director-General and two senior officers of his Ministry for the purpose of exchanging views about the candidates who were to be recommended. 1185 Triflntafyllides P. Papaonisiforou v. Republic
(1982)For thisreason thisappeal is allowed becausethereexists, to put it at its lowest, substantial doubt about the validity of the factual basis of the subjudice decision of the Commission; and this being so the proper course for us, as an administrative Court, is not to allow th ; s decision to stand, but to set it aside, so as to give an opportunity to the Commission to re-exam;ne the whole matter free from any misconception;" 5 Lastly, in Photos Photiades & Co. v. The Republic, 1964 C.L.R. 102, there were stated the following (at p. 315): 10 "In cases where, through such doubt having arisen, it appears probable that the administrative act concerned has been based on a misconception of the true factual situation, an administrative court has two courses open to it in order to clear the doubt that has arisen: Either to order further necessary evidence or to annul the act concerned so that the administration may ascertain the real facts withoul room for doubt being left (see 'The Law of Administrative Acts' by Stassinopoulos
(1951)p. 305)". In the light of the foregoing I have come to the conclusion thai the applicant has succeeded in persuading me that there exists at least a probability that the sub judice decision of Ihe respondent Commission was reached under a material misconception as regards what had actually been said by the applicant 25 at the incident in question. In the present case 1 have decided that I should not go so far as to order the production, or the rehearing, of evidence in relation to the alleged commission by the applicant of a disciplinary offence and, thus, the better course is to annul 30 thesubjudice decision and leaveit totherespondent Commission to re-examine the matter afresh if it so deems fit. In the light of all relevant circumstances I have dee'ded to make no order as to the costs of this case. Subjudice decisionannulled. No 35 order as to costs. 1186 15 20