Disciplinary transfer disguised as educational transfer requires natural justice safeguards under Article 12 of the Constitution.

[*1438] 1968 December 13

(LOIZOU, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Simos Pilatsis,

Applicant,

The Republic of Cyprus, through

1. The Minister of Education,

2. The Committee of Educational Service

(Case No, 242/66).

Transfer - Disciplinary Transfer - Rule applicable in case of doubt whether transfer is based on disciplinary grounds or not.

Committee of Educational Service - Procedure followed by Committee of Educational Service in effecting transfer of the Applicant, contrary to Article

12 of the Constitution and the Rules of natural Justice,

Chr. Artemides for A, Triantafyllides, for the Applicant,

G. Tornaritis, for the Respondent,

JUDGMENT

The following Judgment was delivered by:

LOIZOU. J.: By this recourse the Applicant challenges the validity of the decision of the Committee [*1439] of Educational Service to have him transferred from Morphou to Famagusta and seeks a declaration that such decision and transfer are null and void and of no effect whatsoever.

The Applicant is an elementary school-teacher and until August, 1966, he was posted at Morphou. By the decision complained of he was transferred to Famagusta. The reasons for the transfer appear in the letter dated 2nd August, 1966, (exhibit 2). by means of which the Committee's decision was conveyed to him, which reads as follows:

"Κοινοποιείται υμίν η κάτωθι απόφασις της Επιτροπής Εκπαιδευτικής

Υπηρεσίας 26/7/1966 :

'Σίμος Πηλάτσης :

Η

Επιτροπή λαβούσα υπ' όψει έκθεσιν του Υπουργείου Παιδείας, καθ' ην ο εν λόγω διδάσκα­λος δια

της εν γένει συμπεριφοράς του συνετέλεσεν εις το να παρεξηγηθούν αι σχέσεις του

μεθ' ενός των γυναικείων μελών του Συνδέσμου Γονέων, αποφασίζει όπως, κατόπιν

της δημιουργηθείσης καταστάσεως, μετατεθή ούτος εκ Μόρφου.'"

The report of the Ministry of Education to which reference is made in the above decision is part of exhibit 4 (this exhibit comprises seven documents which, for the sake of convenience, I have marked 4A - 4G; the report in question is marked exhibit 4) and is a confidential letter dated the 14th July, 1966, addressed to the Head of Elementary Education by Mr. A. D. Christodoulides an Inspector of Elementary Education. This letter is in fact a report on an investigation carried out by this Inspector at the request of the Head of Elementary Education, in consequence of an accusation made against the [*1440] Applicant by the President of the School Committee of Morphou dated 6th July, 1966. This is exhibit UA and it reads as follows: -

"Έντιμε κ. Τμηματάρχα,

Αι κυρίαι Αγνή Βασιλειάδου και Λένια Φ. Χριστοφίδου, μέλη του

Συμβουλίου Γονέων του Αρρεναγωγείου, με παρεκάλεσαν να διαβιβάσω καταγγελίαν

εναντίον του διδασκάλου κ. Σίμου Πηλλάτσιη.

Συμφώνως προς τους ισχυρισμούς των ο κ. Πηλλάτσιης δια της συμπεριφοράς

του και των υπ' αυτού διαδιδομένων συνετέλεσεν εις το να σχηματισθή η εντύπωσις

ότι η κ. Χριστοφίδου συνδέεται μετ' αυτού ερωτικώς.

Η Σχολική Εφορεία, ως είναι φυσικόν, αποδίδει μεγάλην σημασίαν εις την

καταγγελίαν ταύτην και παρακαλεί Υμάς όπως δόσετε εντολήν να ερευνηθή το

ταχύτερον. Η κ. Χριστοφίδου σύζυγος του ιατρού της Κ.Μ.Ε. κ. Φοίβου Χριστοφίδη

τώρα διαμένει εις Γεντάγυιαν, είναι πρόθυμος όμως να έλθη εις Μόρφου δια τους

σκοπούς της εφεύνης."

It appears from the report itself that the way the Applicant is alleged to have contributed to the impression being formed in the village that he had love relations with the lady in question was by going round the village with her for the purpose of selling tickets for a cinematograph performance in aid of the poor students of the school, by taking her [*1441] in his car to and from the meetings of the parents' committee at the school and by speaking and referring to her by her Christian name and without using the word “Mrs.”.

It also appears that the Inspector who carried out the investigation interviewed eleven persons from whom he sought information and evidence regarding the case. The eleventh person on the list of the persons interviewed is "the accused Mr. S. Pilatsis”. It is clear that the Inspector interviewed the various persons in private and in the absence of the Applicant. In fact he quite clearly states (at para. 2 of the report) that some of his informers did not wish the information divulged by them to be connected with their names, the matter being a delicate one, as he puts it, and for this reason he does not disclose what information each of the persons interviewed has given him. In his report he gives a summary of the information collected by him and at para. 7 he says this: “From his whole behaviour Mrs. Christofidou is of the opinion that the object of Mr. Pilatsis was not in fact to have a love affair with her, but to create the impression among the public in the village that he had love relations with her, for the purpose of exalting, as he may have thought, his own personal prestige. I am in complete agreement - the Inspector goes on to say - with this view especially in view of the fact that I know the character of Mr. Pilatsis". At paragraph 9 of the report the Inspector says that the case probably cannot be examined by the disciplinary board, because at least three vital witnesses would not like to testify before the Committee or before a Court, [*1442] but he goes on to suggest that the case be examined on the basis of his report; and in the last paragraph of the report he suggests that apart from any other measures the Applicant should be transferred forthwith from Morphou, for educational reasons, because, irrespective of the degree of his guilt, his further stay at Morphou would injure the smooth functioning of the school in view of the rumours that had spread in the village.

By his letter dated the 21st July, 1966, (exhibit 4F), addressed to the President and Members of the Committee of Educational Service the Head of Elementary Education informs them that the Applicant has by his conduct contributed to his relations with one of the women members of the Parents Committee to be misunderstood and goes on to suggest that in the circumstances Applicant's transfer from Morphou is necessary and that this view is also shared by the School Committee.

On the 26th July, 1966, the Committee of Educational Service decided, on the basis of the report, to transfer the Applicant from Morphou; and this is the decision challenged by this recourse.

The case was fought mainly on the issue of whether Applicant's transfer was based on disciplinary grounds. It was contended, on the part of the Applicant that the transfer was clearly a disciplinary one and that in any case on the authority of Kalisperas and The Republic, 3 R.S.C.C. p. 146 in case of doubt as to the nature of the transfer such doubt ought to be resolved by treating the transfer as being disciplinary. [*1443]

On the part of the Respondent' it was argued that the decision of the Committee to transfer the Applicant was not of a disciplinary nature hut was based on educational grounds. If the matter was of a disciplinary nature, learned counsel argued, the Applicant would have been charged under the 1962 Discipline Regulations (decision of the Greek Communal Chamber No.13/62) but the Committee did not do so because it did not consider this a disciplinary transfer.

There seems to be some confusion about these Discipline Regulations. They were made under Law 7/60 (which was published in the Gazette of the 11th January, 1961). When Law 8/63 of the Greek Communal Chamber was enacted, it repealed section 10 of Law 7/60 (as set out in section 2 of Law 6/62) which is the section by virtue of which, inter alia, the Disciplinary Board was set up, but the Discipline Regulations were saved. Finally Law 12/65 repealed altogether Law 7/60 (see item 5 of the first Schedule to Law 12/65) and by virtue of section 7(2) thereof the Committee of Educational Service was constituted; the functions of this Committee are set out in sub-section (3) of the same section and they include the appointment, classification, establishment, promotion, transfer secondment, posting and retirement of Inspectors of Education, schoolmasters and teachers and the exercise of disciplinary control over them including power to dismiss. Quite clearly then after the enactment of Law 12/65 the Committee of Educational Service was vested with the exercise of disciplinary control ever teachers. But the question of whether the Discipline Regulations were or were not applicable in the present case, at the [*1444] time, is only of academic interest really because, in any case, the procedure laid down thereunder was not followed.

As stated earlier on the first issue that falls for consideration in the present case is whether Applicant’s transfer was made on disciplinary grounds.

It is interesting to quote a passage from Kalisperas and The Republic (supra) on this issue; the passage occurs at p.151 letter and runs as follows:

“It is, of course, possible for transfers to be made, in varying degrees both for reasons of misconduct and other reasons at the same time. In such cases it may not always he easy to draw the line between disciplinary and other transfers. The test to he applied in such cases is to ascertain the essential nature and predominant purpose of the particular transfer. In case of doubt whether a transfer is disciplinary or not then such doubt ought to be resolved by treating the transfer in question as being disciplinary in order to afford the public officer concerned the safeguards ensured to him through the appropriate procedure applicable to disciplinary matters".

Turning now to the present case; here we have a school-teacher who, it is alleged, has deliberately brought about a situation which has exposed a married woman and brought into disgrace both himself and the school where he was posted to such an extent that it was thought necessary to have him transferred, as otherwise the smooth functioning of the school p would be seriously injured. [*1445]

It seems to me that in the light of all the circumstances this is clearly a disciplinary transfer disguised as a transfer on educational grounds mainly because, due to the unwillingness of vital witnesses to testify, there was no evidence to support disciplinary measures against the Applicant. But in any case, whichever way one looks at the case, it cannot in my view be said that the question whether the transfer was disciplinary or not can in any way be considered to be free from doubt and that, therefore, it should be treated as disciplinary.

Having reached this conclusion it now remains to consider whether the procedure followed by the Committee in arriving at the decision challenged by this recourse was in conformity with well established principles of natural justice.

It is quite clear from the minutes of the meeting of the Committee (exhibit 4G) that it relied merely on the confidential report (exhibit 4E) and acted on the recommendations made therein. Although a question of credibility was in issue, in view of the fact that the Applicant denies in his report exhibit 3 that he had deliberately or intentionally caused the "misunderstanding" as a result of which he was transferred, the Committee, which only had competence, under the law, to deal with the matter, never saw any of the persons who gave information to the Inspector who prepared the report, or the Applicant; and in fact it does appear that they were not even aware what information each of those persons gave. Furthermore, it is quite clear that the Applicant was never given an adequate opportunity to defend himself and. far from [*1446] being allowed to examine the persons who gave information against him he, quite obviously, was not informed and was not aware what each of those persons had stated against him and he never had a chance to explain his case to the Committee in person.

In view of the foregoing, it is, to my mind, quite clear that the decision to transfer the Applicant was arrived at through a procedure which denied the Applicant the minimum rights safeguarded by Article 12 of the Constitution, the provisions of which have been held to be applicable to offences in general (see Haros and The Republic, 4 R.S.C.C. p. 39 at p. 44) and which was contrary to the rules of natural justice and has to be declared to be null and void and of no effect whatsoever.

In all the circumstances I have decided to make no order as to costs.

Order in terms.

No order as to costs.