(1982) 3 CLR 1182
[*1182] 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 of fact—Or even probability of its existence justifies the annulment of the administrative decision reached under such misconception—Disciplinary conviction of educationalist for allegedly expressing himself publicly in an unbecoming manner—Probability that sub 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 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 particular occasion; also, this witness appeared to have conceded that what he stated in evidence was Ms 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 probability 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 [*1183] exists at least a probability that the sub judice decision of the respondent Commission was reached under a material misconception as regards what had actually been said by the applicant at the incident in question; accordingly the sub judice decision must be annulled.
Sub judice decision annulled.
Cases referred to:
Christodoulou v. Cyprus Telecommunications Authority (1978) 3 C.L.R. 61 at p. 69;
Kontos The Republic (1974) 3 C.L.R. 112 at p. 129;
HjiMichael v. The Republic (1972) 3 C.L.R. 246;
Mallouros v. The Electricity Authority of Cyprus (1974) 3 C.L.R. 220 at p. 224;
Thalassinos v. The Republic (1974) 3 C.L.R. 290 at p. 294;
Photiades & Co. v. The Republic, 1964 C.L.R. 102 at p. 115.
Recourse.
Recourse against the decision of the respondent whereby applicant was found guilty of conduct incompatible with his duties and obligations as an educationalist and was punished by a fine of £100.-
A. Markides, for the applicant.
G. Tornaritis with A.S. Angelides, for the respondent.
Cur. adv. vult.
Triantafyllides P. read the following judgment. By means 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 incompatible with his duties and obligations as an educationalist and was punished by a fine of C£100. The said decision was communicated to the applicant by a letter dated 6th July 1979.
The applicant was, at all material times, a school-teacher in elementary education.
By a letter dated 23rd January 1978, which was addressed to the applicant by the Chairman of the respondent Commission, there were preferred against him disciplinary charges for conduct incompatible with his duties and obligations as an educationalist and for involvement in political activities. [*1184]
On 22nd June 1979 the applicant was found guilty in respect of one of the charges and was acquitted in respect of the other.
According 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 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 his evidence shows that this witness could not 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 applicant was that in view of the nature of the evidence against the applicant the Commission has most probably acted under a misconception as to material facts, namely as to what had actually been said by the applicant at the incident in question.
It has been repeatedly stated by this Court, in a number of 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 Christodoulou v. The Cyprus Telecommunications Authority, (1978) 3 C.L.R. 61, the following were stated (at p. 69):
"…….and that a material misconception of fact, or even the probability of its existence, justifies the annulment of an administrative act of 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 HjiMichael 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, Hadjianastassiou J., in annulling the sub judice decision in that case, said (at p. 129):
"……I am of the opinion that the applicant has succeeded [*1185] in 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, I 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 is reached 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 probability that a misconception has led to the taking 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):
"In view of the foregoing 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 Director-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. [*1186]
For this reason this appeal is allowed because there exists, to put it at its lowest, substantial doubt about the validity of the factual basis of the sub judice decision of the Commission; and this being so the proper course for us, as, an administrative Court, is not to allow this decision to stand, but to set it aside, so as to give an opportunity to the Commission to re-examine the whole matter free from any misconception;"
Lastly, in Photos Photiades & Co. v. The Republic, 1964 C.L.R. 102, there were stated the following (at p. 115):
"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 without 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 that the applicant has succeeded in persuading me that there exists at least a probability that the sub judice decision of the respondent Commission was reached under a material misconception as regards what had actually been said by the applicant at the incident in question.
In the present case I 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 the sub judice decision and leave it to the respondent Commission to re-examine the matter afresh if it so deems fit.
In the light of all relevant circumstances I have decided to make no order as to the costs of this case.
Sub judice decision annulled. No
order as to costs.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο