clr/1983/1983_3_775.pdf

(1969)3 C.L.R. 366 at p. 375; Christofidesv. CYTA

(1979)3 CX.R. 99 at pp. 125-126; Republicv. Mozoras

(1970)3 C.L.R. 210 at p. 221. 775 Papageorgbiou v. Republic

(1983)Recourse. Recourse against the decision of the respondent imposing upon the applicant the disciplinary punishment of compulsory retirement. M. Papapetrou, for the applicant, 5 R. Vrahimi (Mrs.), for the respondent. Cur. adv. vult. A. Loizou J. read the following judgment. By the present recourse the applicant seeksa declaration of the Court that the decision of the respondent which was communicated to the 10 applicant by letter dated 8.12.1982 by which the disciplinary punishment of compulsory retirement was imposed on him, is null and void and of no legal effect whatsoever. The applicant is a graduate of the Theological School of the Kapodistrian University ofAthens. In 1976he was appointed 15 on contract, by the respondents,to thepost of Master ofTheology. On the 1.6.1980 he was appointed on probation to the the permanent post of Master of Theology. InMarch 1981, whileservingattheStavrosStrovolosGymnasium, disciplinary proceedings were brought against him for 20 disciplinary offences concerning his behaviour which amounted to contravention of his duties as an educational officer and also for striking his pupils; he was punished with a severe reprimand and a fine of C£

1. In September 1981 the applicant was charged with conduct 25 unbecoming to his duties and obligations as an educational officer, in particular for striking his pupils and for instigating political discussions with his pupils in class. In all he was charged with 7 offences of striking his pupils on various occasions and with one offence of talking politics in class. Hewas 30 called to appear before the respondent Commission on the 9.10.1981byletterofthe 10.9.1981(exhibit "A"-Blue115-116). On the samedate he was also notified by letter (Blue 117)that he was interdicted as from 10.9.
2. Though he was finally served with the summons to appear in December 1981,he was 35 not present at the hearing of his case on the 11.1.
3. On the 12.1.1982, the respondent Commission decided as follows (Blue 130): 776 3 CX.R. 5 10 15 20 Papageorghkn τ. Republic A. Lotzou J.

(3)Thefact thatheis subject torelapses andis incorrigible, because, despite the warnings of the Headmasters as well as'of the Commission, on his previous appearance before itfor similar disciplinary offences, thatintheeventof future serious offences, the Educational Service Commission shall impose a stricter punishment without excluding the punishment of dismissal also, the Educational Officer showed with his attitude that he did not take intoaccount its warnings at all. This behaviour of his shows an irresponsible character anditrendershimunfit butalso atthesametimeunsafe for the exercise of the function of educational officer. The Commission unanimously and without any reserva­ tion decides that his removal is indicated from the Public EducationalService andtoimposeonhimandfor theeight charges the punishment of dismissal as from today, 12th January, 1982. In accordance with section 74

(3)of the Educational Service Laws 1969 to 1979, the amount (of emoluments) which has been retained during the duration of his inter­ diction will not be refunded to the educational officer." On the 14.2.1982 counsel for the applicant submitted an application (exhibit Ά ' - Blue 138-9)for re-examinationand/or reconsideration of the decision of the respondent Commission 25 by which he was dismissed. He based his application on the following reasons:"(A) During the hearing of the case the Educational Service Commission did not have before it material information concerning the offender and in particular: 30 35 (a) That he had at the relevant time health problems (psychological problems) and should have been exa­ mined and received treatment. from a specialist psychiatrist. (b) That he committed the offences which are contaii cd in the charge sheet as a resu't of the condition oi nis health and not for the reason which ate stated in the 777 A. Loizou J. Papageorgbiou v. Republic

(1983)decision dated 12.1.1982 of the Educational Service Commission (irresponsible character etc.). (B) Due to the ignorance of the Educational Service Commis­ sion as regards the state of the health of the offender and his need to undergo medical treatment, the Commission misconceived the real facts and reached the wrong con­ clusion. 5 (C) Due to the ignorance of the Educational Service Commis­ sion of the state of health of the offender and his need to undergo medical treatment, the Commission based its 10 decision on reasons which did not exist in reality and reached a decision different from that which the real facts would justify. (D) The offender did not appear at the hearing due to his state of health. The Commission by its letter of the 6.10.1982 (exhibit Ά ' Blue 140) summoned before it applicant's counsel to argue his client's case. He appeared before the Commission on the 18:10.1982 and placed before it a medical report by Dr. G. Malekides, Specialist Psychiatrist, dated 14.10.1982, in which it 20 is stated (exhibit Ά ' - Blue 142): He was re-examined on the 19.11.1981 and manifested a relapse with psychotic signs and aggressive behaviour. He came for re-examination on the 15.2.1982. He stated that he was dismissed from his employment in 25 September 1981 with charges of 'talking politics andhitting the pupils'. Since then he is being followed regularly and is receiving treatment. Hismentalconditionhas improved satisfactorily, he is free from psychotic elements with good general behaviour. His judgment is good and generally 30 the higher mental functions are normal. Heis also aware of his condition. He admits that before his dismissal in September 1981 he was touchy, irritable with ideas of per­ secution and was not taking medication. 778 15 3 C.L.R. Papageorghloa v. Republic A. Loizou J. It appears that before September 1981 and after his re­ examination on the 15.2.1982 there was a relapse with the result that his general behaviour and ability to teach were affected. The respondent Commission, according to theminute of the 18.10.1982 (exhibit Ά ' - Blue 143) "_™ conferred and having taken into consideration all that the lawyer Mr. Papapetrou mentioned,aswellasthefact thatinitsdecision of the 12.1.1982, on imposing the punishment the behaviour of the Educational Officer during the procedure was taken into consideration among other things, decides to re-examine its said decision of the 12.1.1982 and sets as a date for re-examination the 6th November, 1982 __.". On the 6.11.1982 the respondent Commission heard again counsel for the applicant. He admitted that his client did commit all the offences charged with but submitted that they were so committed by reason of his mental condition, the Commission should, therefore, see the whole matter under a different light. He further submitted that on the basis of the report of Dr. Malekides,his clientwas now able andfit to work. Consequently the issue before the Commission should be that his client committed the disciplinary offences charged with and that his mental condition should only be taken into account as a mitigating factor inpassing sentence. .It should not adversely affect his chances of employment. Since he is now well he should, in thecircumstances, be re-employed (Relevant Minutes of the Commission attached as *C to the Opposition). The Commission on the 8,12.1982 gave its decision (exhibit Ά* - Blue 149, Attachment 'D' to the Opposition, page 2, para. 4):" because theoffences of which he was charged and punished are of very serious nature and because, as we repeatedly stressed, the Commission is determined to safe­ guard theproper orderinthepubliceducational serviceand to contributeto thebest of its ability to theproper function of education, finds that the proper punishment must be proportional to the disciplinary offences which he himself admitted also during the proceedings of reconsideration of 779 A. Loizou J. Papageorghioo v. Republic

(1983)committing. Underthecircumstances theonlypunishment which the Commission unanimously finds that is proper is thepunishmentofcompulsory retirementasfrom 12.1.1982. Thedecision of thatdate is reviewedand thepunishmentof retirement is imposed instead of thepunishment of dismis- 5 sal". Hence the present recourse which is based on the following grounds of Iaw:(A) Breach of the Law and/or the Regulations concerning the imposition of disciplinary punishment. 10 (B) Abuse or excess of power or wrong exercise of discretion. ( Q Misconception of fact. (D) Wrong or defective reasoning. Counsel for the applicant in his address has argued that the Commission in imposing the disciplinary sentence acted under 15 a misconception of fact in that it failed to take into considera­ tion, as a mitigating factor, that the applicant at the time of committing the disciplinary offences was mentally ill and thus imposed on him a sentence which was manifestly excessive. I find nomisconception of facts onbehalf of the Commission. 20 It is clear from the perusal of exhibit Ά ' before me that the medical report of Dr. Malekides and the fact that the applicant had beenmentally illwere before theCommission at all relevant times. In particular in its sub judice decision the Commission stated at p. 2, para. 3: 25 "In viewof thefact thatonimposing sentenceon 12.1.1982 the Commission was not aware of the condition of the mental health of themaster and inview of the fact that this element constituted an element which existed at the timeof the imposition of thesentenceandwhich wedid not 30 have in mind, the Commission decides unanimously to review its decision of the 12.1.82". It is abundantly clear, therefore, that the respondent Com­ mission reviewed their decision inview of the applicant's illness and for the same reason they reduced the sentence imposed. 35 The second argument of the applicant is that the respondent 780 3 CL.R. Papageorghiou v. Republic A. Loizou J. Commissionacted inexcessand/orabuse of power,on imposing sentence, by wrongly taking into consideration the previous disciplinary proceedings against the applicant since those were totally unconnected with thepresentproceedings which referred 5 to offences committed,because of the applicant's mental illness and this was not the case at the previous instance. He ought to therefore have been treated as a first offender and given a lesser sentence. On the contrary the respondent Commission imposed in excess and/or abuse of power -it was the con10 tentionof theapplicant-a sentencewhich was manifestly exces­ sive in the circumstances. Itiswellestablished inAdministrative Law thatanadministra­ tiveCourt cannotinterfere into the discretionof the sentencing organ in passing sentence. In the GreekAdministrative Law, 15 by Kyriacopoulos, (4th Edition),Vol. C, p.308, it is stated: 20 "To Σ.τ.Ε.,έν τη ακυρωτική σύτοΰ δικαιοδοσία,δένελέγχει τήν κρίσιν τοΰ πειθαρχικοί)δικαστοΰ περί της βαρύτητος τοΰ παραπτώματος καΐ rfjs έπιβλητέαςποινής,διότιταΰτα άπόκεινται εΐξ τήν έλευθέραν έκτίμησιν τοΰ δικάσαντοςύργάνου". In English: 25 "The Greek Council of State in its revisional jurisdiction does not control thejudgment of the disciplinary judge on the severity of the offence and the sentence that should be passed because these depend on the free evaluation of the adjudicating organ". See also Costas Platritis v. TheRepublic

(1969)3 C.L.R. 366, at p. 375. In Christofides v. CYTA

(1979)3C.L.R.99,atp. 125-6it was 30 stated: 35 "On the question that the punishment imposed was exces­ sivelyhard andcruel,without sharing thisview,the answer is to be found in what was stated by Triantafyllides, J., in the Republic v. Mozoras

(1970)3 C.L.R. 210, at p. 221, where he said: 'Lastly, I have to deal with thecontention -again not decided by the trial Judge, once he had annulled the 781 A. Loizou J. Papageorghiou v. Republic

(1983)dismissal of the respondent - that the disciplinary punishment imposed on the respondent wasexcessive. The short answer to this is that failing any legislative provisions entitling this Court, in the exercise of its competence under Article 146, to decide on the sub- 5 stance of certain aspects of disciplinary matters (and it would be in the interest ofjustice if such provisions came to be enacted here, as in Greece) the severity, as such, of a disciplinary sanction cannot be tested, and decided upon, by means of a recourse under Article 10 146(seeKyriacopoulos on Greek Administrative Law, 4th ed. Vol. Ill, p. 305, p. 308)"'. For all the above reasons and without in any case accepting the viewthat the sentence imposed was excessive in thecircumstances,thisrecourseshouldfailandisherebydismissed,withno 15 order as to costs. Recourse dismissed with noorder as tocosts. 782