[*11] 1963 March 6

 

(forsthoff, p., triantafyludes and munir, jj.)

 

(September 11, November 2, 1962, March 6, 1963)

 

Stavros Rallis,

And

The Greek Communal Chamber, Through The Director of Greek Education.

(Case No. 117/62)

Organisation of the Education Office Law, No. 7 of 1960*—.s.10† Of—Termination of services within competence only of Disciplinary Board, s. 10(2)—Proceedings before Complaints Committee under s.10(3), a review procedure.

Schoolmasters—On probation or unestablished—Termination of services of— For disciplinary reasons—For unsatisfactory work—Cases of doubt where predominant reason not clear—Conduct of, in private life.

Termination of services—For disciplinary reasons—Rules of natural justice apply.

The Applicant was an elementary school-teacher, first appointed on probation in September, 1958, who had his services terminated as from the 31st August, 1959, as a result of certain complaints made against him. At his own request he was re-appointed in September, 1960, on probation and on a month-to-month basis until he proved himself efficient for confirmation. After a transfer from one village to another for unsatisfactory conduct, his services were again terminated in March, 1962, firstly, because of an adverse report by a School Inspector on the standard of his work, and, secondly, because he had been found guilty by an ecclesiastical Court for having endangered his wife’s life.

The decision for the termination of his services was vetted by the Committee of Education and the Committee of Selection and Administration of the Greek Communal Chamber on the 22/2/1962. The Inspector’s report stated, also, that the chairman of the village Commission, as well as representative members of the Community where he was last posted, were satisfied of the Applicant’s attitude and activities and that he commanded respect and was of impeccable character.

It was the Applicant’s contention that-

(a)        he was no longer a probationer but regularly employed on a month- to-month basis,

(b)        the termination of his services was contrary to s.31 of the Elementary Education Laws Cap. 166, and

(c)        the termination of his services was essentially of a disciplinary [*12] nature and, therefore, he should have been given an opportunity to be heard in his defence.

Held : (a) this recourse was not premature because the proceedings before the Complaints Committee set up under s.10 (3) the Organisation of the Education Office Law No. 7 of I960,* were by way of review and not by way of confirmation or completion of the administrative act or decision concerned (Nicos Pelides and The Republic (Council of Ministers) and another, 3 R.S.C.C., p. 13 at p. 17, affirmed);

(b)        the Applicant was still a probationer;

(c)        the termination of the services of an officer solely for unsatisfactory work could not be regarded as disciplinary action against such officer (Maro N. Pantelidou and The Republic (Public Service Commission), 4 R.S.C.C. p. 100 at p. 101, affirmed);

(d)        a teacher’s conduct outside school which brings him into disrepute might, in a proper case, be deemed to be misconduct related to his office, relevant to the institution of disciplinary proceedings against him;

(e)        where the termination of services was based with equal force both on inefficiency and on disciplinary reasons, so as to create doubts as to what was the essential and predominant purpose for such termination, irrespective of whether such services could possibly have been terminated on the ground of inefficiency alone, such termination should be treated as amounting to disciplinary action (Nicos Kalisperas and The Republic (Public Service Commission) and another, 3 R.S.C.C., p. 146);

(f)        the appropriate body to decide on the issue of disciplinary action against the Applicant was, at the material time, by virtue of s. 10(2)* of Law No. 7 of 1960, the Disciplinary Board which was, thereby, especially set up for the purpose;

(g)        the services of an officer, whether on probation or on an unestablished basis, though otherwise liable to be terminated as per the terms of his probationary or temporary employment, should not be terminated for disciplinary reasons before he was afforded an opportunity to be heard in his defence (Maro N. Pantelidou and The Republic (Public Service Commission), 4 R.S.C.C., p. 100 at p. 101 applied);

(h)        Art. 146 contained an implied directive to all authorities in the Republic to reason duly their decisions, failing which the effective and convincing support of their validity before this Court might be gravely handicapped.

Termination of services declared null and void.

Cases referred to :

Maro N. Pantelidou and The Republic (Public Service Commission), 4 R.S.C.C. [*13]

Nicos Kalisperas and The Republic (Public Service Commission) and another, 3 R.S.C.C.

Nicos Pelides and The Republic (Council of Ministers) and another, 3 R.S.C.C.

L. Clerides with K. Saveriades for the Applicant.

G. Cr. Tornaritis for the Respondent.

Cur. adv. vult.

March, 6. The Judgment of the Court was read by:

FORSTHOFF, P. : The Court declares—

The decision to terminate the services of Applicant, as communicated to him by letter dated the 1st March, 1962, is null and void and of no effect whatsoever.

The Applicant was first appointed on probation as an elementary school-teacher in September, 1958, but such appointment was terminated with effect from the 31st August, 1959, as a result of certain complaints which were made against Applicant.

The Applicant, having applied for re-employment, was reappointed as an elementary school-teacher as from September, 1960, by letter dated the 7th September, 1960. It was stated therein that this new appointment was on probation and on a month to month basis until Applicant would prove himself as an efficient teacher. He was posted at the village of Kato Archimandrita.

By letter dated the 17th May, 1961, the Applicant was transferred to the village of Kannavia as from the 22nd May, 1961, as a substitute teacher. Such transfer was effected as a result of unsatisfactory conduct by the Applicant.

As from September, 1961, and for the school year 1961-1962, the Applicant was moved from Kannavia to the village of Ayios Constantinos, at his own request.

By letter dated the 1st March, 1962, the Director of the Office of Greek Education, (hereinafter referred to as “the Director”), informed the Applicant that his services were being terminated as from that date on the ground, first, that, as it appeared from the latest report of an Inspector, Applicant’s standard of work was very low and, secondly, that Applicant had been found guilty by an ecclesiastical court of having endangered the life of his wife; Applicant was to be paid his salary for the month of March, 1962. [*14]

The decision to terminate the services of Applicant had been approved by the Committee of Education and the Committee of Selection and Administration of the Greek Communal Chamber, on the 22nd February, 1962.

The aforesaid report of an Inspector is dated the 13th February, 1962, and it was stated therein that the level of work of Applicant was, in general, very low. It was stated, further, that this fact had been drawn to the attention of Applicant who had requested to be given a further chance and to undergo another inspection later. Concerning, however, the general conduct of Applicant in the community the Inspector stated that he had met the Chairman of the Village Authority and representative members of the community who had expressed their satisfaction for the attitude and the activities of the Applicant in the village and who had mentioned, also, that he enjoyed respect in the community and that his morals were impeccable.

On the basis of such report and of the said decision of the ecclesiastical court the Head of the Department of Elementary Education of the Office of Greek Education wrote a minute to the Director on the 21st February, 1962, recommending the termination of the services of the Applicant, with the result that such services were terminated as above- stated.

The Application in this Case was filed on the 10th Mav, 1962.

By the motion for relief the Applicant applies for a declaration that the decision of Respondent to terminate his services as from the 1st March, 1962, is null and void and of no effect whatsoever.

The Opposition was filed on the 29th June, 1962.

A Presentation of the Case before a Judge of the Court took place on the 11th September, 1962, and the Case was heared by the Court on the 2nd November, 1962.

At the hearing counsel for Applicant has, inter alia, submitted :-

(a)   that Applicant had ceased, as from his transfer to Kannavia village, to be a probationer and he was being employed on a regular month to month basis;

(b)   that the termination of the services of the Applicant was, as made, contrary to section 31 of the Elementary Education Law, CAP. 166; and

(c)   that the said termination was essentially of a disciplinary [*15] nature and that, in the circumstances, Applicant ought to have been afforded an opportunity to be heard in answer to the complaints made against him.

Counsel for Respondent opposed the above contentions and he submitted, further, that this recourse was premature in that the Applicant had not put the matter of the termination of his services before the ‘Complaints Committee’ of the Office of Greek Education. He submitted also that such termination of services had been properly made under regulation 3 (e) of the Elementary Education (Registration and Payment of Teachers) Regulations, 1954*, as the Applicant was at the time still on probation.

The issues to be determined are as follows:

(1)   Whether or not this recourse is premature.

(2)   What was, at the material time, the exact status of Applicant as a teacher.

(3)   Whether or not the appropriate procedure has been followed in terminating the services of Applicant.

Issue (1)

The legislation in force at the time, and relevant to this issue, was section 10 of the Organization of the Education Office Law, 1960, Law 7/60† of the Greek Communal Chamber. Under the said provision a Committee had been set up for the examination of complaints in relation to appointments, promotions or transfers of educationalists. Though a decision for the “termination of services” does not appear to have been expressly included in the terms of reference of such Committee, nevertheless, even assuming that this should be deemed to be so in view of the fact that “appointments” were expressly included therein, in the opinion of the Court the proceedings before the said Committee had not been provided by way of confirmation or completion of the administrative act or decision concerned but only by way of a review. It follows, therefore, that, in accordance with the Judgment of this Court in Nicos Pelides and The Republic (Council of Ministers), 3 R.S.C.C. p. 13, at p. 17, this recourse is not premature.

Issue (2)

The Court is of the opinion that though in the formal document of transfer of Applicant to Kannavia, dated the [*16] 17th May, 1961, it was not expressly repeated that Applicant would continue to be on probation at his new post, it cannot be reasonably concluded that the probationary period of Applicant’s services was thereby ended. Applicant had been appointed on probation until he would prove himself as an efficient teacher and the transfer of Applicant to Kannavia, which was effected during the currency of a school-year due to unsatisfactory conduct, cannot be deemed to signify an intention to treat the Applicant as having so proved himself as an efficient teacher.

Applicant was, therefore, still a probationer when his services were terminated on the 1st March, 1962.

Issue (3)

In order to determine this issue, the nature of the termination of the services of Applicant has to be examined with a view to ascertaining whether or not it was disciplinary. One of the grounds for the said termination was the fact that Applicant’s level of work was very low. That is clearly not a disciplinary ground (vide Maro N. Pantelidou and The Republic (Public Service Commission), 4 R.S.C.C. p. 100). The other ground, which was equally relied upon by the appropriate authorities in dealing with the case of Applicant, as shown by the aforesaid minute of the 21st February and the letter of the 1st March, 1962, was his whole conduct and particularly his conduct towards his wife, which was the subject-matter of a decision by an ecclesiastical court.

The Court is of the opinion that a teacher’s conduct outside the school, be it towards his wife or towards others, which brings him into disrepute, may, in a proper case, be deemed to be misconduct related to his office, as being conduct prejudicial to the interests of education. A teacher educates his pupils not only by giving lessons to them but, to a certain extent, by his own living example as a person in the community. Such factor is taken cognizance of by the appropriate authorities, as shown by the contents of the relevant Inspector’s report, dated the 13th February, 1962. The same view is also borne out by the wide terms in which section 31 of CAP. 166 is drafted.

The conduct, therefore, of the Applicant towards his wife, which led to the decision against him of an ecclesiastical court, being in the circumstances a matter which could bring him into disrepute, became conduct relevant from the disciplinary point of view and was properly taken into account by Respondent as a consideration relevant to the question of the termination of his services, though the Court leaves open the issue whether in this particular Case it was a sufficient consideration, in view of the lately otherwise good conduct of [*17] Applicant, as reported by the Inspector on the 13th February, 1962.

In the opinion of the Court, therefore, and in the light of its Judgments in Nicos Kalisperas  and The Republic (Public Service Commission) & another, 3 R.S.C.C. p. 146 and other Cases, so long as the termination of the services of the Applicant appears to have been based with equal force both on inefficiency and disciplinary reasons as well, such termination ought to have been treated as a disciplinary matter, to the extent concerning the Applicant’s conduct towards his wife, and the appropriate procedure ought to have been applied, a thing which it is common ground that it has not been done. The fact that Applicant’s services could possibly have been terminated on the ground of inefficiency alone is not sufficient to save the validity of such termination once disciplinary reasons were relied upon also in a decisive manner, as in this Case. To put it at its lowest, there has arisen such a considerable doubt as to the essential and predominant purpose of the termination of the services of Applicant as to lead the Court to the above conclusion.

Furthermore, on the 22nd February, 1962, when the Committee of Education and the Committee of Selection and Administration of the Greek Communal Chamber approved the termination of the services of Applicant, provision had been made, under the then in force section 10 of the aforesaid Law No. 7/60, for the functioning in the Office of Greek Education of a Disciplinary Board composed of the Director as Chairman, the Heads of the Departments of Secondary and Elementary Education and two ex-educationalists, a master and a teacher, as members. In the opinion of the Court the only proper organ to decide on the question of the termination of the services of Applicant, from a disciplinary point of view, was the said Board, and this course has not been followed. Instead, upon a minute by the Head of the Department of Elementary Education to the Director, the aforesaid two Committees of the Greek Communal Chamber decided the matter.

It follows, therefore, that the termination of the services of the Applicant, for a disciplinary reason, has not been decided either by the competent organ or in the proper manner.

In the circumstances, it is not really material to decide whether, the Applicant being a probationer, he could have been dismissed under regulation 3 (e) of the Elementary Education (Registration and Payment of Teachers) Regulations. 1954*, or whether the provisions of section 31 of CAP. [*18] 166 ought to have been applied, because a public officer, even if he is employed on probation or on an unestablished basis (vide Maro N. Pantelidou and The Republic (Public Service Commission), supra), should not have his services terminated for a disciplinary reason unless he has first been afforded an opportunity to be heard in answer to the case made against him. The reason for such a premise is that, though a probationer or unestablished officer still otherwise remains liable to termination of his services in accordance with the terms of his probationary or temporary employment, once a disciplinary element has been introduced, such element is a supervening extraordinary factor but for the introduction of which the probationary or unestablished service would have normally continued. It is required, then, by the rules of natural justice, inter alia, that a person should not be deprived, for disciplinary reasons, of the benefit of even a probationary or unestablished service without first being afforded an opportunity to be heard in his defence.

Before concluding, the Court considers it useful to observe that the form in which the letter of the 1st March, 1962, terminating the services of the Applicant, was written may be substantially regarded as a proper form for the purpose, and one that could and should properly be adopted by other appropriate authorities in similar circumstances, in that reasons are sufficiently given for such termination of services. The existence of a jurisdiction such as the one under Article 146 contains an implied directive to the authorities, which are subject to such jurisdiction, to endeavour to reason duly their relevant decisions. The absence of such reasoning, though not always necessarily, in itself, a ground for invalidating the particular decision, may prove to be a grave handicap towards effectively and convincingly supporting its validity in proceedings before this Court.

For the Reasons set out above the Court declares as stated in The Order.