006-SLLR-SLLR-2010-V-2-LOKUHENNADIGE-vs.-LT.-GENERAL-SARATH-FONSEKA-AND-OTHERS.pdf
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Lokuheruiadige vs. Lt. General Sarath Fonseka and others
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LOKUHENNADIGE VS. LT. GENERAL SARATH FONSEKAAND OTHERSCOURT OF APPEALSRISKANDARAJAH, J.CA 1274/2006MARCH 12, 2009
Army Act-Section 27(d)-Court of Inquiry-Disqualification to bea member of the Court of Inquiry – Pouter to deduct sum orderedfrom pay or allowance – Validity – Judicial Review – appeals -Difference – Withdrawing of commission – Dismissed from Army -Can punishment be imposed without holding inquiry? Punishment- Surcharge is it a punishment?
On an investigation by Military Police into an “air ticket fraud” thepetitioner a Captain in the Army was taken into custody, a Courtof Inquiry inquired into the incident and recommended that therespondent should recover from the petitioner and two others, thesaid sum, to take disciplinary action against those who were foundresponsible, and to take steps to withdraw the commission and todismiss the 3 officers. It was contended that, the 3rd respondent wasdisqualified to sit as a member of the Court of Inquiry – as he was abeneficiary of a ticket obtained from the Directorate as he is witnessto the transactions and that the 6th respondent did not participate onall days of the inquiry, that there was no evidence to prove that thepetitioner misappropriated the alleged sum by issuing air tickets tothird parties.
Held
As there is no allegation against the 3rd respondent that he hadany interest or involvement in the said fraud or misappropriation- he is not disqualified.
Absence of the 6th respondent on some dates of the inquiry wouldnot have caused any impact on the outcome of the findings.
Function of the Court of Inquiry is to record evidence and finally torecord its findings.
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The 1“ respondent has the power to deduct the said sum fromthe pay or allowance due to the officer. When an authority isempowered by law to arrive at a decision after consideration of thematerial before it this Court cannot in those proceedings interferewith the decision. Judicial Review – Court is concerned with itslegality.
The recovery or deduction of the said sum from the salary of thepetitioner is not a punishment but to make good the loss incurredby the Army – it is only a surcharge.
The 1“ respondent has the authority to direct a disciplinaryinquiry, any punishment on the petitioner can only be imposedafter such disciplinary inquiry.
Held further
The decision to withdraw the commission and to dismiss thepetitioner tantamount to punitive action. Dismissal from the Armyis in the scale of punishment of the Court Marshal, thereforewithout holding a disciplinary inquiry no punishment can beimposed. Without finding the petitioner guilty to the chargesthe 1st respondent cannot direct to take steps to withdraw thecommission and to dismiss him from the Army on the basis thathe was found responsible for the fraud from military police inves-tigations and the Court of Inquiry.
APPLICATION from a Writ of Certiorari.
Case referred to:-
Best Footwear (Pvt.) Ltd and two others vs. Aboosally, former Minister of
Labour and Vocational Training and others – 1997 – 2 Sri LR 137
Ransiri Fernando with Senaka Amarajith for petitioner
Farzana Jameel DSG with Deepthi Tilakawardene SC for respondents
July 09th 2009SRISKANDARAJAH. J
The Petitioner submitted that he was enlisted to the SriLanka Army on 03.11.1990 and at all time material to this
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application he served as a Caption of the regular force ofthe Sri Lanka Army. He was attached to the Directorate ofMovement of the Sri Lanka Army with effect from 23.09.1998as an additional staff officer III. He submitted that duringthe time material to this application, his superior officerwas one Major Hettiarachchi and the clerk in charge of thesubject of overseas travel was one Corporal Dahanayake. TheRespondents submitted that Major Hettiarachchi had servedin the said Directorate from 26.02.1996 to 04.01.1999. From04.01.1999 to 07.07.2000 the Petitioner had served as astaff officer in charge of the station of overseas courses andoverseas travel of the said Directorate.
On an investigation initiated by the military police intoan air ticket fraud which had taken place in the Director-ate of Movement of the Sri Lanka Army the Petitioner andone Corporal Dahanayake DTG who was the subject clerk ofthat section were taken into military custody on 28.04.2000.It is common ground that after the conclusion of the mili-tary police investigation in relation to the said incident aCourt of Inquiry consisting of four commissioned officers wasappointed on 02.05.2001 to inquire into the said incident. TheCourt of Inquiry commenced its proceedings on 26.05.2001and continued until 28.12.2001 and during the course of theinquiry it was revealed that the value of the fraud committedin the said incident is in excess of Rs. 500,000/-. Thereforeaction was taken to cancel the said Court of Inquiry anda fresh Court of Inquiry was convened as provided underparagraph 4(a) of the special rules made under Note 2 ofthe Financial Regulation No 102 Relating to Losses of ThreeArmed Forces. The Court of Inquiry convened (The 2nd Courtof Inquiry) as provided by the said rule was comprised of threecommissioned officers and a civilian officer nominated by the
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secretary to the Ministry of defence. The 2nd Court of Inquirycommenced the inquiry on 16.08.2004 and concluded on08.12.2005. In this Court of Inquiry sixteen witnesses alongwith the Petitioner gave evidence.
The Petitioner challenged the constitution of the 2nd Courtof Inquiry on the basis that the 3rd Respondent is disqualifiedto be a member of the said Court of Inquiry. The Petitionercontended that the inquiry is in relation to the misappropria-tion of funds in relation to the issue of tickets for overseascourses and overseas travel at the Directorate of Movementof the Sri Lanka Army and whereas the 3rd Respondent was abeneficiary of a ticket obtained from the said Directorate. The3rd Respondent is a witness to the said transaction and hencehe is disqualified to be a member of the Court of Inquiry. Thefact that every person who has obtained a ticket from theDirectorate is not disqualified to sit as a member of an inquirypanel that is constituted to inquire into a fraud or misap-propriation of funds of the Directorate unless it is shown thathe has an interest or involvement in the said fraud or misap-propriation. As there is no allegation levelled against the 3rdRespondent that he had any interest or involvement in thesaid fraud or misappropriation the Petitioners objection thatthe constitution of the said Court of Inquiry is invalid has nobasis.
The second objection raised by the Petitioner is that oneof the inquirers; the 6th Respondent (the civilian officer) whowas particularly included in view of the high value of the lossunder the above mentioned rules was not present on all thedays of the inquiry. Hence the petitioner submitted that thefindings of the Court of Inquiry are invalid. The Respondentscontended that the 6th Respondent was present at the inquiryat all relevant time and his absence on few occasions will
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not have any adverse impact on the findings of the Court ofInquiry as the findings of the Court of Inquiry was by allmembers after considering all the evidence led in the saidCourt of Inquiry.
The Court of Inquiry is a fact finding inquiry, the Courtof Inquiry is defined in Regulation 2 of The Army Courts ofInquiry Regulations 1952 it states:
Court of Inquiry means an assembly of officers, or, ofone or more officers together with one or more warrant ornon-commissioned officers, directed to collect and recordevidence and, if so required, to report or make a decisionwith regard to any matter or think which may be referredto them for inquiry under this regulation.
Regulation 162 of The Army Courts of Inquiry Regula-tions provides that “Every Court of Inquiry shall record theevidence given before it, and at the end of the proceedings itshall record its findings in respect of the matter of mattersinto which it was assembled to inquire as required by theconvening authority. The function of the Court of Inquiry isto record evidence and finally to record its findings. At thestage of recording evidence the absence of an inquirer on fewsittings would not vitiate the proceedings of recoding evidenceas no prejudice is caused to any one. But at the time ofrecording its finding all the members must give their mind tothe evidence led and arrive at their finding. In the aforesaidinquiry the 6th Respondent was absent only on few occasionsat the stage of recording evidence due to the pressure of workas he was a civil officer but he has participated in the processof recording the findings of the inquiry. In these circumstancesthe absence of the 6th Respondent on some dates of theinquiry would not have caused any impact on the outcome of
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the findings of the Court of Inquiry and hence the Petitioner’ssubmission that the findings of the inquiry are invalid has nomerit. The Petitioner in the above circumstances cannot seeka writ of certiorari to quash the proceedings or the opinion orthe observation of the Court of Inquiry marked X5.
The Petitioner in this application has also sought to quashthe decision of the 1st Respondent marked X6. The Petitionersubmitted that based on the opinion and the observation ofthe Court of Inquiry the 1st Respondent has decided that:
The total amount that is alleged to have been misap-propriated should be recovered on the following basis:Petitioner – Rs. 413,140.00, Maj L P T I Hettiarachchi -Rs. 874,823.40 and Corporal Dahanayake – Rs.1,036,858.00
To take disciplinary action against those who were foundresponsible for the said fraud and
To take steps to withdraw the commission and to dismissthe two army officers and the other officer.
The Petitioner challenged the aforesaid decision on thebasis that the evidence led before the Court of inquiry didnot prove that the Petitioner has misappropriated a sum ofRs. 413,140/- as alleged by issuing Air Tickets of theSri Lanka Army to third parties.
The Special Rules made under Note 2 of FinancialRegulation No. 102 Relating to Losses of Three Armed Forces,in Rule 3 provides:
Responsibility for loss:
(a) Members of the Service shall be held personallyresponsible for any loss caused to the service/
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Government by their own delay, negligence,fault or fraud and shall make good such loss.A member of the service will similarly beresponsible if he/she allows or directs any action tobe performed:-
Without proper authority or
Without complying with the relevant serviceregulations, orders or other appropriate instruc-tions or
Without exercising reasonable care, or
Fraudulently
(b) Every member shall at all times be responsible forthe safe custody, proper use and due disposal ofany property issued to him/her or placed in his/hertemporary or permanent custody. In case of loss ordamage to them, or in case of failure to account forthem, whenever called upon to do so such membershall be surcharged.
Disciplinary action shall in addition be taken againsthim/her for any carelessness, negligence or non-com-pliance with any regulations, rules or instructions.
Rule 4 provides for Inquiry and fixing Responsibility:
4(a) provides that as soon as a loss occurs, Inquiriesshould be instituted as laid down by the Board/Court ofInquiry regulations by the appropriate service authority toascertain the extent and the cause of loss and to fix respon-sibility where necessary.
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Rule 6; empowers the Service Commanders to determinethe degree of responsibility for the loss, from any servicemenconcerned and the amount to be recovered from each of themand to authorise the recovery of such amount.
In the instant case the Court of Inquiry was held toascertain the cause of loss and to fix responsibility. The 1stRespondent after the receipt of the findings of the Courtof Inquiry has decided that a total sum of Rs. 2,324,821.40which was misappropriated should be recovered from thePetitioner, Maj L.P.T.I. Hettiarachchi and CorporalDahanayake. This amount is apportioned to Petitioner -Rs. 413,140.00, Maj. L.P.T.I. Hettiarachchi – Rs. 874,823.40and Corporal Dahanayake – Rs. 1,036,858.00 in accordancewith the degree of responsibility.
The 1st Respondent under Section 27(d) of the Army Actread with Rule 6 mentioned above has the power to deductthe said sum from the pay or allowance due to the officer. Theburden of proof as to the recovery of this sum is stipulated inthe said Section. It provides that after due investigation if itappears to the Commander of the Army that it had occurredby any wrongful act or negligence of the officer he coulddeduct the sum lost from the pay or allowance due to the officer.The Commander of the army had arrived at the aforesaiddecision after considering the Court of Inquiry proceedingsand findings. When an authority empowered by law to arriveat a decision after consideration of the material before it thiscourt cannot in these proceedings interfere in that decision.It is settled law that the remedy by way of certiorari cannot bemade use of to correct errors or to substitute a correct orderfor a wrong order. Judicial review is radically different fromappeals. When hearing an appeal the Court is concerned with
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the merits of the decision under appeal. Injudicial review thecourt is concerned with its legality. On appeal the question isright or wrong, on review, the question is lawful or unlawful.Instead of substituting its own decision for that of some otherbody as it happens when an appeal is allowed, a court onreview is concerned only with the question whether the actor order under attack should be allowed to stand or not;Best Footwear (pvt) Ltd, and Two Others v. Aboosally, formerMinister of Labour & Vocational Training and Others(1)
In view of the above the decision to recover the said sumfrom the salary of the Petitioner cannot be challenged by a writof certiorari. The said recovery or deduction of the said sumfrom the salary of the Petitioner is not a punishment imposedon the Petitioner but it is to make good the loss incurred bythe Army; in other words it is only a surcharge. As providedby Rule 8 of Note 2 of Financial Regulation No. 102 Relatingto Losses of Three Armed Forces the maximum recoverablevalue will be the actual loss involved. This indicates that thesum recovered under these rules is not a punishment.
In addition to the said deduction the 1st Respondent hasdirected to hold a disciplinary inquiry. The 1st Respondenthas the authority to direct a disciplinary inquiry as it isprovided by rule 07(j) of the said Note 2 of the FinancialRegulation. Any punishment on the Petitioner can only beimposed after such disciplinary inquiry. In a disciplinaryinquiry a charge sheet will be served and the person accusedwill have an opportunity to answer the charges and defendhimself in contrast to a Court of Inquiry where there is noaccused and no charge sheet all those who appear before theCourt of Inquiry are witnesses as it is a fact finding inquiry.Only in instances where the inquiry affects the character
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or military reputation of an officer or a soldier the officer ora soldier was afforded an opportunity of being presentthroughout the inquiry and allowed to cross-examine anywitness, make statements and adduce evidence on his ownbehalf. But this opportunity given to an officer or soldierwill not change the character of the Court of Inquiry into adisciplinary inquiry.
The decision contained in X6 to take steps to withdrawthe Commission and to dismiss the Petitioner from the SriLanka Army tantamount to a punitive action. Dismissal fromArmy is in the scale of punishment of the Court Martial.Therefore without holding a disciplinary inquiry contemplatedin the Army Act and the regulations framed thereunder nopunishment can be imposed. Without finding the Petitionerguilty to the charges the 1st Respondent cannot direct to takesteps to withdraw the Commission of the Petitioner and todismiss him from the Army on the basis that he was foundresponsible for the said fraud from the military police investi-gation and the Court of Inquiry. Therefore this court issues awrit of certiorari to quash that part of the decision containedin the decision of the 1st Respondent in document marked X6dated 14.01.2006 namely:
The application for a writ of certiorari is allowed to the extentstated above in the judgement. The Court makes no order asto costs.
application allowed – partly.