clr/1983/1983_3_769.pdf

(2)of the Public Educational Service Law, 1969 (Law 10/69) complied with—Subjudicedecision nottakenby way ofdisciplinarypunishmentbutdue totheunsuitability oftheappellant asan educationalistthoughfact thathehadbeen disciplinarilypunishedinthepast wasafactor whichcouldbeweighedtogetherwithallotherrelevant matters. The appellant was serving on probation as a schoolmaster. On the 28th June, 1976the respondent Commission considered whether or not toconfirm hisappointment; and becauseitwas prima facie of the view that there were grounds which would justify its refusal to do so it called upon him to make representations in thematter inaccordancewith subsection

(2)ofsection 30ofthePublicEducationalServiceLaw, 1969(Law 10/69). At itsmeetingof the28th June, 1976,theCommission had before it a report of the appropriate Inspector of Education dated 28th May, 1976, submitted under s.36

(2)of Law 10/69,which was to theeffect that theInspector couldnotrecommend thepermanent appointment of the appellant. Following his calling upon by the respondent as above the appellant appeared before the 769 Paraskevas v. Republic

(1983)respondent on 25.8.76 together with an advocate, and after the respondent hadheard whatthe appellant's advocatehad tosayit decided to terminate his services. Prior to the decision to terminate his services as above the appellant was informed by a letter dated 13th May 1976 that 5 having been found guilty of disciplinary offences he was to be transferred, by way of disciplinary punishment, from Nicosia to Paralimni as from 1st September 1976. Upon appeal against the dismissal of his recourse, whichwas directed against thetermination of his services, it was mainly 10 contended by Counsel for the appellaot: (

1. a)That the respondent Commission failed to comply with section 30 of Lav* 10/69; and (
2. b)that the appellant has been punished twice because prior to the termination of his services he wastransfer- 15 red by way of disciplinary punishment from Nicosia to Paralimni. Held,that there was ii this case substantial compliance with the provisions of section 30 of Law 10/69, since on 28th June 1976 the respondent did nothing more than to reach a prelimi- 20 nary decision, as it was empowered to do under the said section 30,regarding itsintention to terminate the services of the appellant; and as a result of such decision the respondent called upon the appellant to make his representations, as envisaged, again, by the said section 30; that, moreover, it is quite clear 25 from the relevant administrative records that the subsequent termination of the servicesof the appellant, inAugust 1976,was not further disciplinary punishment which was imposed on the appellant in relation to the disciplinary offences in respect of which he had already been punished by the decision to transfer 30 him to Paralimni; that the fact that the appellant had been disciplinarily punished in the past was merely a factor which could be, and was, quite legitimately weighed together with all other relevant matters appearing in the personal file and confidential reports of the appellant, as well as in administrative 35 recordsrelatingto theconduct oftheappellant duringtheperiod of hisprobationary service; andinthelight of allthis material thesubjudice decision wastaken by the respondent, not byway 770 3 C.L.R. Paraskevas v. Republic ofdisciplinary punishment, butbecausedueto theunsuilability of the appellant as an educationalist it would not servetheinterests of education to allow the appellant to remain in the service; accordingly the appeal must be dismissed. 5 Appeal dismissed. Appeal. Appeal against the judgment * of a Judge of the Supreme Court of Cyprus (Malachtos, J.) given on the 24th October, 1981 (Revisional Jurisdiction Case No. 261/76) dismissing 10 appellant's recourse against the termination of his services as a teacher of secondary education. L. N. Clerides, for the appellant. A. S. Angelides, for the respondent. Cur.adv.vult. 15 TRIANTAFYLLIDESP.read thefollowingjudgment oftheCourt. This isan appeal against thejudgment of a Judge of this Court by which he dismissed the recourse of the appellant against a decision of the respondent Educational Service Commission by virtue of which it wasdecided to terminate his services as from 20 1st September 1976. The appellant was initially appointed on probation as a schoolmaster for a period of two years as from 21st September 1972, but due to intervening events-with which we need not deal in thisjudgment since they are not really relevant to this 25 case - his period of probationary service was interrupted and, as was found by the respondent Commission, such period did not come to an end, as it would normally have come, in September 1974, but went on for much longer. On 28thJune 1976the respondent considered whether or not 30 to confirm the appointment of the appellant; and because it wasprimafacieoftheviewthatthereweregroundswhichwould justify its refusal to do so it called upon him to make representations in the matter in accordance with subsection

(2)of section 30 of the Public Educational Service Law, 1969 (Law 35 10/69). • Reported in

(1981)3 C.L.R. 420. 771 Triantafyllides P. Parastoas τ. Republic

(1983)Theappellant appeared before therespondenton20thAugust 1976 and as he required more time to prepare his representa­ tions the matter was adjourned to the 25th August

1. We have been referred to the relevant minutes of the res­ pondent for the 20th August 1976 in which there appears an 5 allegation of the appellant that he was being politically per­ secuted. We must observe, at this stage, that, in our view, there is nothing before us to support such allegation and his counsel has very rightly, indeed, stated explicitly during the Hearing of this appeal that he agrees with this view of ours. 10 On the 25thAugust 1976 the appellant appeared again before the respondent, together with an advocate, and after the res­ pondent had heard what the appellant's advocate had to say it decided, as already stated, to terminate his services. 1We have perused very carefully all therelevant administrative 15 records and we find that therewas in this case substantial com­ pliance with theprovisions of section 30 of Law 10/69, since on 28th June 1976 the respondent did nothing more than to reach a preliminary decision, as it was empowered to do under the said section 30, regarding its intentionto terminate the services 20 of the appellant; and as a result of such decision the respon­ dent called upon the appellant to make his representations, as envisaged, again, by the said section
2. We are quite satisfied that on 28th June 1976 therespondent did not decidefinally, in a manner inconsistent with the letter or spirit of section 30, 25 as counsel for the appellant has contended, to terminate the services of the appellant. Another argument which was put forward by counsel for the appellant was that in the circumstances of the present case his client has been punished twice. It is true thathe was informed 30 by a letter dated 13th May 1976 that having been found guilty of disciplinary offences he was to be transferred, by way of disciplinary punishment, from Nicosia to Paralimni as from 1st September
3. At thattimeit was, of course,open tothe respondent to punish the appellant by terminating his services 35 but, as the punishment to be imposed on him had to be com­ mensurate to the disciplinary offences of which be had been found guilty, the respondent did not, apparently, think that it was then necessary to go so far as to terminate his services. 772 3 CX.R. Paraskevas τ. Republic TriantaftHides P. It is quite clear from the relevant administrative records that the subsequent termination of the services of the appellant, in August 1976, was not further disciplinary punishment which was imposed onthe appellant in relation to theaforementioned 5 disciplinary offences in respect of which he had already been punished by the decision to transfer him to Paralimni. As it appears from the minutes of the respondent dated 28th June 1976thematteroftheprobationaryappointmentoftheappellant cameuponlylaterbefore therespondentbecausethe respondent 10 didnotdealwithitwhiletherewerependingagainsttheappellant the disciplinary charges concerned and because until the dis­ ciplinary proceedings had been terminated no report of the appropriate Inspector of Education was submitted to the res­ pondent under section 36

(2)of Law 10/69. Such report is 15 dated 28th May 1976 and it is to the effect that theInspector could not recommend the permanent appointment of the ap­ pellant. It can clearly be derived both from the initial preliminary decisionoftherespondentof28thJune 1976,whichwasreached, 20 as aforesaid, for the purposes of section 30 of Law 10/69, as well from the final decision of the respondent of 25th August 1976, that what was taken into account in reaching such de­ cisions was that the appellant was not suitable as aneducatio­ nalist and,therefore,hisserviceshadtobeterminated,as,inthe 25 circumstances, his probationary appointment period could not be extended and a fortiori he ought not to be offered aperma­ nent appointment. The fact that the appellant had been disciplinarily punished in thepast was merely a factor which could be, and was, quite 30 legitimately weighed together with all other relevant matters appearing in the personal file and confidential reports file of theappellant,as wellas in administrative records relating tothe conduct of theappellant during theperiod of his probationary service; and in the light of all this material the sub judice 5 3 decisionwas takenby therespondent,notby way of disciplinary punishment, but because due to the unsuitability of the appel­ lant as an educationalist it would not serve the interests of educationtoallowtheappellanttoremainintheservice. 40 Having dealt with the main grounds which have been raised this appeal, and which in our opinionmerited specificconm 773 Triantafyllides P. Paraskevas τ. Republic

(1983)sideration, we find that thereis noreason whatsoever for usto interfere with thejudgment of the learned trial Judge and this appeal is dismissed accordingly; but with no order as to its costs. Appealdismissed withno orderas to costs. 5 774