clr/1984/1984_3_915.pdf

(1984)In the meantime, on the 17th September, 1980,the applicant wrotea lettertothe Ministryaskingfor leaveofabsencewithout pay for the school-years 1979-80 and 1980-81 on the ground that,ayearearlier,proceedingsforthedissolutionofhismarriage were initiated in Greece and they were still pending. The 5 Disciplinary Committee did not give its decision on the 27th Septemberbut,forwantoftime,adjourned ittothe25thOctober. On that day and after the Committee convened to deliver its decision counsel appearing for the applicant deposited a letter bearing the same date signed by him and addressed to the re- 10 spondent committee requesting them to adjourn their decision sine die as the applicant had not received a reply to his application of the 17th September, 1980for leave of absence for two years and as a result hehad filed a recourse No. 358/80against suchfailure. HisrequestwasnotaccededtoandtheCommittee 15 proceeded and gave its decision* whereby the sentence of dismissal from the service was imposed on the applicant. Hence this recourse. Counsel for the applicant mainly contended: (

1. a)That by the sub judice act or decision respondents 20 deprived theapplicant of hisinterest on his application dated 17th September, 1980 for leave of absence i.e. they deprived him of the status of a schoolmaster entitled to apply for leave of absence. Counsel submitted in this connection that appli- 25 cant's application for leave (dated 17.9.80) and the filing of the recourse (No. 358/80) were grounds for adjourning the delivery of the decision or, in the alternative, if samewas delivered this should have been on a conditional basis. 30 (
2. b)That the provisions of s.50 of Law 10/69do not mean that when a person isabsent without leavethe punishment of dismissal is mandatory but that the committee had a discretion to impose any of the punishments provided ins.69ofthelawwhichrangefrom reprimand 35 to dismissal. (
3. c)That as it transpires from the wording of the last • The decision is quoted at pp. 920-921 post. 916 3 GL.R. 5 Papaphotis v. Republic paragraph* of the decision the committee acted under thelegalmisconception that theywereboundtoimpose the punishment of dismissal and had no discretion to impose any other of the punishments provided by s.69 of the law; and (
4. d)That the gravity of the offence was not such as to justify the dismissal of the applicant. 10 15 20 25 30 Held,

(1)that the application to the Ministry for leave of absence retrospectively was not a matter that should, in the circumstances, have any bearing on the decision of the respondents nor was this a case in which the decision could, in view of its very nature, have been made conditional (see in this respect the Law onAdministrative Actsby Stassinopoulos, 1951 ed., at p. 52 and Conclusions from the Jurisprudence of the Greek Council of State 1929-1959 at p.196).

(2)That section 50 of the Public Educational Service Law, 1969 (Law 10/69) does not and could not make the imposition ofthesentenceofdismissalmandatory; that ifitwereotherwise it might conceivably offend against the provisions of Article 12.3 of the Constitution; that this section merely purports to stress the gravity of the offence and enable the committee to impose even the maximum punishment provided by law.

(3)That since the Committee in the subjudice decision considered the plea in mitigation of the applicant that due to his personal circumstances he deserved the greatest leniency; that sincetheyalsoconsideredthepersonalcircumstancesoftheapplicantandweighed them againstthegravity of theoffence; and that since they intimated what effects a lenient sentence might have on the proper functioning of the service, all those denote exercise of discretion in choosing a more severe sentence or the most severe sentence from amongst other punishments that it wasopen tothemto choose; accordinglyit cannot beheldthat the Committee thought that they had no discretion but were bound to impose the punishment they did. The last paragraph reads as follows: "For the above reasons the committee decides unanimously that the only appropriate sentence is the sentence of dismissal as it is, besides, expressly provided also by s.S0 of Law 10/69. The accused issentenced to dismissal from the service as from the 26th October, 1980". 917 Papaphotis v. Republic

(4)That the severityof disciplinarysanctionscannot betested and decided upon by means of a recourse under Article 146. Application dismissed. Cases referred to: Republicv. Drymiotis

(1971)3 C.L.R. 400; Republicv. Mozoras

(1973)3 C.L.R. 210 at p. 221; Christofides v. CY.T.A.

(1979)3 C.L.R. 99 at p.

1. 5 Recourse. Recourse against the decision of the respondents whereby the disciplinary punishment of dismissal from the service was 10 imposed on applicant. L. Papaphilippou, for the applicant. M. Photiou, for the respondent. Cur. adv. vult. L. Loizou J. read the following judgment. By this recourse 15 the applicant seeks a declaration that the act and/or decision of the respondents dated 25thOctober, 1980,bywhichtheyimposed on the applicant the disciplinary punishment of dismissal from the service as from the 26th October, 1980, is void and of no legal effect whatsoever. 20 The facts of the case are as follows: The applicant held the post of Master of Theology in the secondary education. Having secured employment in Greece he was, on his own application, granted leave without pay in each year from the 1st January, 1974 until August,
2. On 25 the 7th May, 1979,he applied once again for leave without pay for the academic year 1979-
3. He was informed by letter dated the 3rd July, 1979 that his application was not approved. By a letter dated 13th August, 1979, the applicant requested reconsideration of the decision refusing his application and on 30 the 23rd August, 1979,he wasinformed that hisapplication had been reconsidered but it was not found possible to alter the decision. No other communication or correspondence was exchanged between the applicant and therespondents until the 14th March, 35 1980, when he was informed by a letter addressed to him by Mr. Mitsides, Inspector of Theological subjects, that he had 918 3 C.L.R. Papaphotis v. Republic L. Loizou J. been appointed as an investigating officer to investigate the possible commission by the applicant of a disciplinary offence in view of the fact that he wasabsent from his service without justification and inviting him, if he so wished, to submit his 5 written representations. The applicant by letter dated 26th April, 1980,submitted his representations stating, inter alia, that various family problems had prevented him from returning to Cyprus and resume his duties and expressing his regret for the formal disciplinary re10 sponsibility towards the service and stating, in conclusion, that in anycasehe wasready toreturn and resume the duties ofhis post as soon as he was asked to do so. On the 5th May, 1980,the investigating officer submitted his report on theinvestigation stating,inter alia, that hewasof the 15 viewthattheapplicant,after hewasinformed bytheDirectorof Technical Education by the letter of the 23rd August, 1979,of thedecision of theappropriate authority not to grant hisapplication for extension of his leave, ought to have returned to Cyprus and resume his duties and that his failure to do so 20 constituted a disciplinary offence. The investigating officer, however, stressed as a mitigating circumstance the fact that the applicant acknowledged that he had committed a formal disciplinary offence about which he expressed his regret and also that hestated that hewasready toreturn and resume hisduties 25 as soon as he was asked to do so. Thereafter, a charge was formulated against the applicant charging him that during the academic year 1979-80 he was absentfrom hisdutieswithoutleave. Thecharge wastransmitted to the Educational Service Committee together with the 30 personal file of the applicant, who was summoned to appear beforeitonthe12thJuly, 1980,forthehearingofthedisciplinary charge against him. During the hearing of the charge which finally took place, after two adjournments, on the 13th September, 1980, counsel 35 appearing for the applicant sought the leave of the Disciplinary Committee and entered a plea of guilty on his behalf and made his address in mitigation. At the conclusion of counsel's address the case was adjourned to the 27th September, 1980, for sentence. 919 L. Loizou J. Papaphotis v. Republic

(1984)In the meantime, on the 17th September, 1980, the applicant wrote a letter to the Ministry asking for leave of absence without pay for the school-years 1979-80 and 1980-81 on the ground that, a year earlier, proceedings for the dissolution of his marriage were initiated in Greece and they were still pending. 5 As it appears from the record the Disciplinary Committee did not giveits decision on the27th September, but, for want of time, adjourned it to the 25th October. On that day and after the Committee convened to deliver its decision counsel appearing for the applicant deposited a letter bearing the same date signed 10 by him and addressed to the respondent committee requesting them to adjourn their decision sine die as the applicant had not received a reply to his application of the 17th September, 1980 for leave of absence for two years and as a result he had filed a recourse No. 358/80 against such failure. His request was not 15 acceded to and the Committee proceeded and gave its decision. The relevant part of the decision reads as follows: " Ό εύπαίδευτος συνήγορος τοΰ κατηγορουμένου κατά την αξιόλογη αγόρευση του ενώπιον της 'Επιτροπής είσηγήθηκε δτΊ ή περίπτωση τοΰ πελάτη του λόγω τών είδικών προ- 20 σωπικώυ συνθηκών στις όποιες ευρίσκεται δικαιολογεί την άπό μέρους της 'Επιτροπήςεπίδειξη της μεγαλύτερος δυνατής επιείκειας. Χωρίς νάαμφισβητούμετΙς προσωπικές συνθήκεςτοΰ κατη­ γορουμένου αδυνατούμε νά παραβλέψουμε τή σοβαρότητα 25 τοΰ αδικήματοςτης απουσίαςχωρίς άδειακαΐ Ιδιαίτεραστην παρούσα περίπτωση τό γεγονός ότι στά επανειλημμένα αίτήματα τοΰ κατηγορουμένου πρίν άπό τή δίωξη του γιά παράταση της άδειαςτου ή 'Αρμόδια 'Αρχή ρητώςαρνήθηκε τήν παραχώρηση της. "Από της περατώσεως της άλλη- 30 γραφίας μεταξύ τοΰ κατηγορουμένου καΐ της 'Αρμοδίας 'Αρχής καΐ μετέπειτα ό κατηγορούμενος ενεργούσε μέ γνώση του ότι ήταν μακράν τής υπηρεσίας χωρίς άδεια καΐ ανε­ λάμβανε τΙς συνέπειες τής παραλείψεως του αυτής. Ή 'Επιτροπή πιστεύει δτι ή εύρυθμη λειτουργία καθώς 35 επίσης καΐ ή ευταξία στή Δημόσια Υπηρεσία είναι στοιχεία χωρίς τά οποία αυτή δέν μπορεϊ νάλειτουργήσει κοΛνά απο­ δώσει. 'Ανοχή καταστάσεων δπως ή περίπτωση τοΰ κατη­ γορουμένουθά δημιουργήσει κακάπροηγούμεναμέδυσάρεστες 920 3 C.L.R. Papaphotis v. Republic L. Loizou J. συνέπειες γιά την ομαλή λειτουργία τής Δημόσιας Εκπαι­ δευτικής Υπηρεσίας. 5 Ώζ έκ τούτου ή 'Επιτροπή αποφασίζει ομόφωνα ότι. ή μόνη αρμόζουσα ποινή εΐναι ή ποινή τής απολύσεως όπως αυτή ρητώς προνοείται έξ άλλου καΐ άπό τό "Αρθρο 50 τοΰ Νόμου 10/

1. Ό κατηγορούμενοςκαταδικάζεται στην ποινή τής απολύσεως άπό τήν υπηρεσία του άπό τΙς 26.10.80." 10 ("Learned counsel for the accused in his noteworthy address before the committee submitted that the case of his client, due to the special personal circumstances in which he is found, justifies the exercise of the greatest possible leniency on the part of the committee. 15 20 25 Without disputing the personal circumstances of the accused we are unable to disregard the seriousness of the offence of absence without leave and especially in the present case the fact that accused's repreated applications for the extension of his leave, before the initiation of pro­ ceedings against him, were expressly refused by the appro­ priateauthority. As from thedate of theterminationof the correspondence between the accused and the appropriate authority, the accused was acting with full knowledge that he was away from his service without leave and was taking upon him the consequences of his omission. The committee believes that the proper functioning as well as the good order in the public service are elements without which it cannot function and yield results. Tole­ ration of situations like the case of the accused will create bad precedents with unpleasant effects on the smooth functioning of the Public Educational Service. 30 For the above reasons the committee decides unanimous­ ly that the only appropriate sentence is the sentence of dismissal as it is, besides, expressly provided also by s.50 of Law 10/
2. The accused is sentenced to dismissal from the service as from the 26th October, 1980.") 35 The decision was communicated to the applicant by letter dated 29th October, 1980, and as a result the present recourse was filed. 921 L. Loizou J. Papaphotis v. Republic

(1984)It is based on the following grounds of law: 1. The respondents acted under a misconception of fact in that: (

1. a)They failed to conduct a proper or sufficient inquiry and to attach the necessary weight to applicant's letter dated 17th September, 1980and the letter of his counsel dated 25th October, 1980 addressed to the Ministry of Education for leave of absence. 5 (
2. b)They failed to take into consideration or inquire sufficiently or at all into the fact that applicant's re- 10 course No. 358/80 was still pending. (
3. c)They failed to take into consideration and/or evaluate the fact that at the time of the issue of the subjudice decision or act applicant's application for leave of absence as well as his recourse 458/80 remained un- 15 determined and that if the result of the aforesaid application for leave of absence or of recourse No. 358/80wasthe granting of leaveto theapplicant then the disciplinary offence of the applicant would become non-existent and non-punishable. 20 (
4. d)They failed to evaluate sufficiently or at all the special circumstances and personal or family circumstances of the applicant. 2. The respondents acted in excess and/or in abuse and/or usurpation of powers in that by the subjudice act or decision 25 they indirectly anticipated a negative answer to applicant's application dated 17th September, 1980 for leave of absence and/or on his recouise No. 358/80. 3. The respondents acted contrary to the principles of good administration in that: (
5. a)By the sub judice act or decision they deprived the applicant of his interest on his application dated 17th September, 1980 for leave of absence i.e. they deprived him of the status of a schoolmaster entitled to apply for leave of absence. (
6. b)By the sub judice act or decision they deprived the applicant of his legitimate interest in his recourse No. 358/80. 922 30 35 3 C.L.R. Papaphotis v. Republic L. Loizou J. 4. The respondents failed to reason, properly or at all, their refusal toadjourn thedeliveryofthesubjudicedecisionin violation ofArticle29oftheConstitution, and/orthereasoning givenlackslawful basisor support and/or consideredthemselves 5 bound or acted under a general policy which was not justified by the facts of the present case. Learned counsel for the applicant did not elaborate in his addresson grounds 1,2and 3ofthe grounds oflawexcept for submitting that applicant's last apphcation for leave (dated 10 17.9.80)andthefilingoftherecourse(No.358/80)weregrounds for adjourning thedeliveryofthedecision or, inthealternative, if same was delivered this should have been on a conditional basis. It does not seem to me that there is any merit in counsel's 15 submission. Applicant was aware since August, 1979, when hisapplicationforreconsiderationofthedecisionnottoapprove hisapplication for leavewasalso rejected, that hehad noleave of absence and that if hedid not resumehisdutieshewouldbe absent without leave contrary to the provisions of s.50 of the 20 law; yet he took no step whatsoever against such refusal but instead he remained silent and away from his duties for a year anditwasonlyafter hewaschargedwiththedisciplinary offence and pleaded guilty to it and the decision was reserved that he applied again for the grant of such leave retrospectively with 25 effect from 1st September, 1979. This, to my mind, was a belated attempt to validateexpost facto the offence. Ido not think that his application to the Ministry for leave of absence retrospectively was a matter that should, in the circumstances, have any bearing on the decision of the respondents nor do I 30 thinkthatthiswasacaseinwhichthedecisioncould,inviewof its verynature,havebeenmadeconditional. Seeinthisrespect the Law on Administrative Acts by Stassinopoulos, 1951 ed., at p. 52 and Conclusions from the Jurisprudence of the Greek Council of State 1929-1959 at p. 196. 35 Withregardto ground 4learned counsel in thecourse of his addressineffect madethreesubmissionstothefollowing effect: (
7. a)That theprovisions of s.50 of Law 10/69donot mean that whena person isabsent without leavethe punishment ofdismissalismandatory butthat thecommittee 923 L. Loizou J. Papaphotis v. Republic

(1984)had a discretion to impose any of the punishments providedins.69ofthelawwhichrangefrom reprimand to dismissal. (

1. b)That as it transpires from the wording of the last paragraph of the decision the committee acted under thelegalmisconceptionthattheywereboundtoimpose the punishment of dismissal and had no discretion to impose any other of the punishments provided bys.69 of the law; and 5 (
2. c)That the gravity of the offence was not such as to 10 justify the dismissal of the applicant. I do not propose to dwell for long on submission (
3. a)as it is quite clear that counsel's submission is legally correct. In fact counsel appearing for the respondents was in full agreement with this proposition. It is useful to note that s.50 of the 15 Educational Service Law 10/69isidentical to s.60 of the Public Service Law 33/67 and that the Full Bench of this Court had occasion to deal with the latter section in the case of The Republic v. Drymiotis

(1971)3 C.L.R. 400. The question in that case was whether the disciplinary procedure envisaged by 20 Law33/67had to befollowed inthecaseof absence ofapublic officer without leave or whether, in view of the wording of s.60 ofthatlaw,theofficer couldbedismissedwithoutsuchprocedure being invoked merely on the strength of such section. Although the issues were, on the face of them, somewhat 25 different the judgment is helpful in that the pronouncements therein may legitimately be resorted to, by analogy, as a guide indecidingtheissueinthepresentcase. Atp.403oftheabove judgment we read: "In our view when s.60 is construed as part of the whole 30 structure of Law 33/67and isread together with s.73there canbenodoubt thatit wasnotintendedtodeprivethereby a public officer of the protection of the disciplinary procedure prescribed in part VII of the law; the more so,as s.60doesnot statethat for beingabsent from duty without 35 leave or for wilfully refusing or omitting to perform his duties a public officer shall automatically be dismissed in any case, but only that he is liable (ipokite) to dismissal from the service; and, his, dismissal would inevitably 924 3 C.L.R. Papaphotis v. Republic L. Loizou J. entail the exercise, in the manner laid down by Law 33/67, of the relevant discretionary powers vested in the appellant Commission by means of such law." In the light of the above there can be no question that s.50 5 does not and could not make the imposition of the sentence of dismissal mandatory. If it were otherwise it might conceivably offend against the provisions of Article 12.3 of theConstitution. In my view this section merely purports to stress the gravity of the offence and enable the committee to impose even the 10 maximum punishment provided by law. The important issue in the present case and the one upon which its outcome depends is submission (b) i.e. whether the committee, acting under a misconception of law felt bound to impose the punishment of dismissal because they thought that 15 they had no discretion in the matter. 20 In arguing this point learned counsel relied on the wording of the last paragraph of the sub judice decision and particularly on the phrase "όπως ρητώς προνοείται έξ' άλλου και άπό το άρθρον 50 τοΰ Νόμου 10/69". (as it is besides expressly provided also by section 50 of Law 10/69). Butit is neither safe nor permissible to take words in isolation and try to construe the whole decision from such words. The decision must be considered as a whole and in the light of its circumstances. 25 Thefirst four paragraphs of thedecision, thefull text of which is to be found attached both to the Apphcation and the Oppo­ sition, are introductory and relate to the charge, to the hearing of the case and to the facts which constitute the offence and which were admitted. 30 Paragraph 5 relates to the plea in mitigation and to the sub­ mission of counsel appearing for him that the case of the appli­ cant, due to his special personal circumstances, merits the greatest possible leniency. 35 Then in paragraph 6 they refer to the personal circumstances of the applicant which they do not dispute and they say that, nevertheless, they cannotdisregard the seriousness of the offence especially in view of the fact that his repeated applications for 925 L. Loizou J. Papaphotis v. Republic

(1984)theextension ofhisleave,before theinitiationof theproceedings against him, were refused by the appropriate authority. In the next paragraph they deal with what in their view are necessary elements for the proper functioning of the public service and they say that "toleration of situations like the case 5 of the accused will createbad precedentswith unpleasant effects on the smooth functioning of the public Educational Service." Then follows the last paragraph in which the phrase, cited above, upon which learned counsel's argument is based, occurs. A careful scrutiny of the sub judice decision reveals, in my 10 view, that the committee did not feel that they were bound to dismiss the applicant in any case but exercised a discretion in the matter. If it were not so it would have been quiteun­ necessary for themto consider theplea in mitigation on behalf of the applicant that due to his personal circumstances he 15 deserved the greatest leniency; and yet in paragraph 6 they consider thepersonal circumstances of theapplicantand clearly weigh them against the gravity of the offence and his complete disregard and indifference to the fact that he was absent from duty without leave at a timewhen he applied, morethan once, 20 for such leave and his applications were refused. Then again inthepenultimate paragraph theyintimatewhateffects a lenient sentence might have on the proper functioning of the service; and finally, in the last paragraph they decide that "the only appropriate sentence"is the sentence of dismissal. This again 25 denotesexercise of discretioninchoosing amoresevere sentence or the most severe sentence from amongst other punishments thatitwasopentothemtoimpose.Thephrase"όπωςαυτή ρητώς προνοείταιέξάλλουκαΐάπότόάρθρον50" uponwhichalmostthe whole force of theargument of learned counsel was based, may 30 notbeaveryaptphraseinthecontextofthewholedecisionand it is my view that it was used in order to reinforce the con­ clusion reached that "the only appropriate sentence" was that of dismissal. But, be that as it may, I would not be prepared, inthelight of thewhole circumstancesofthecaseandtheword- 35 ing of thewholedecision,toholdthatitisanindicationthat the committeethoughtthatthey had no discretion but were bound to impose the punishment they did. Lastly Ihavetodeal withcounsel'scontentionthatthegravity 926 3 C.L.R. Papaphotis v. Republic L. Loizou J. of theoffence wasnot suchasto warrantthedisciplinary punishment imposed on the applicant. The short answer to this is that in a line of authorities it has been decided that the severity of disciplinary sanctions cannot be tested and decided upon 5 by means of a recourse under Article 146. See, inter alia, The Republic v. Mozoras

(1973)3C.L.R. 210at p.221 and ChrL 'of'· des v. CYTA

(1979)3 C.L.R. 99 at p. 125. In the result this recourse fails and it is hereby dismissed There will be no order as to costs. 10 Recoursedismissed. No orderas to costs 927