008-SLLR-SLLR-2010-V-2-COLONEL-FERNANDO-vs.-LT.-GENERAL-FONSEKA.pdf
Colonel Fernando vs. Lt. General Fonseka
101
CA
COLONEL FERNANDO VS. LT. GENERAL FONSEKACOURT OF APPEALSRISKANDARAJAH, J.
LECAMWASAM, J.
CA 611/2007
Army Act Section 42, Section 133 – Court of Inquiry – Warnedand recommended for retirement – disciplinary action by way ofsummary trial – No Court Marshal – scale of punishment – Hasthe Commander of the Army Authority to direct retirement? Whendoes Mandamus lie?
At a Court of Inquiry it was revealed that the petitioner a temporaryColonel had committed certain military offences. The 1** respondentCommander of the Army directed that, the petitioner should be warnedand recommended retirement from service.
It was contended that, the witnesses before the Court of Inquiry didnot sign their statements at the time, they were made but had signedsubsequently in the absence of the petitioner. It was further contendedthat the discretion to warn the petitioner and the recommendation ofretirement are both ultra vires the powers of the 1st respondent.
Held
Per Sriskandarajah. J.
“A Court of Inquiry is different from a disciplinary inquiry, in adisciplinary inquiry a charge sheet will be served, and the personaccused will have an opportunity to answer the charges and de-fend himself. In a Court of Inquiry there is no accused and nocharge sheet, all those who appear before the Court of Inquiry arewitnesses as it is a fact finding inquiry”.
(1) The impugned decision of the Commander of the Army cannot beconsidered as punishment, and as they are not punishments thepetitioner cannot complain of a fair hearing. The 1“ respondent
102
Sri Lanka Law Reports
[2010] 2 SRIL.R.
has the power to warn the petitioner, in exercising his powers inmaintaining discipline.
Held further
(2) The 1st respondent has no authority to direct to retire the petitionerfrom service – this direction is ultra vires the power of the 1“respondent.
Per Sriskandarajah, J.
“The petitioner is seeking a mandamus to confirm him in the rankof Colonel. The petitioner has not established that he has a legalright to claim that he should be confirmed in the said rank. Theconfirmation of an officer depends on his performance and otherrelevant facts and is granted only after the evaluation of his servicerecord. Therefore there is no public duty”.
Per Sriskandarajah, J.
“Petitioner has no right to request that he be retained in serviceunder Clause 3(2) b of the Army Pension and Gratuities Code of1981. The Court will not grant Mandamus to enforce a right not ofa legal but of purely equitable nature however extreme the incon-venience.”
APPLICATION for Writ of Certiorari/Mandamus.
Cases referred to:-
Ratnayake and others vs. C. D. Perera and others – 1982 2 Sri LR 451
Credit Information Bureau of Sri Lanka vs. M/s Jaffergee & Jaffergee(Pvt.) Ltd – 2005 – 1 Sri LR 89
Faiz Musthapha PC for petitioner.
Janak de Silva SSC for respondents.
August 27 2009SRISKANDARAJAH, J
The Petitioner is an officer in the Rank of TemporaiyColonel of the Regular Force of the Sri Lanka Army. ThePetitioner submitted that on 05.01.2006 as the Commandant
CA
Colonel Fernando vs. Lt. General Fonseka
(Sriskandarajah, J.)
103
of the Central Arms and Ammunition Depot, he conductedtwo summary trials against two soldiers (Drivers) attached tothe Central Arms and Ammunition Depot, A.S.R. Bandara and
J.A. Asanka who had absent themselves from service withoutleave. Consequent to the summary trial the said two soldierswere found guilty and the Petitioner imposed the punishmentof “7 days confinement to barracks” to both the soldiers. Ona complaint made by A.S.R. Bandara to the Commanderof the Army over the telephone on 05.01.2006, instructionswere given to the Central Arms and Ammunition Depot,Kosgama to send three soldiers namely Private BandaraA.S.R., Private Asanka JA and Private Karunaratna HRS toArmy Head Quarters and instructions were also given to theMilitary Police to initiate an investigation into the allegationsmade by the said three soldiers against the Petitioner. In theMilitary Police investigation the following allegations againstthe Petitioner was revealed;
Employment of Army personal as drivers and escortsas his personal staff exceeding the authorized numberdetailed for an officer in the rank of Colonel servingoutside operational areas as set out in the ArmyHeadquarters letter No. GSBR/A/26/P3(38) dated23.02.2004.
Employment of Army personal for domestic work(washing clothes cooking etc) by the wife of the Petitionerresulting in misusing Army resources for personal use.
Permitting his wife to use insulting language on the Armypersonal detailed as his personal staff.
A Court of Inquiry was convened consisting of 2nd to 4thRespondents. The Court of Inquiry recorded statements ofapproximately 10 witnesses including the said three soldiers,members of the Petitioner’s personal staff and the Petitioner.The Court of Inquiry concluded recording evidence in May2006.
104
Sri Lanka Law Reports
12010] 2 SRI LR.
The 1st Respondent submitted that on the perusal of theevidence led in the Court of Inquiry and the report of theCourt of Inquiry revealed that the Petitioner whilst hewas serving as the Commandant of the Central Arms andAmmunition Depot of the Sri Lanka Army stationed atKosgama committed the following military offences;
Employment of Army personnel as drivers and escortsas his personal staff exceeding the authorised numberdetailed for an officer in the Rank of Colonel outsideoperational areas as set out in the Army Headquarters’letter No. GSBR/A/26/PS(38) dated 23.02.2004.
111 treating soldiers.
Employment of Army personal for domestic work (washingclothes Cooking etc) by the wife of the Petitioner resultingin misusing Army resources for personal use.
Permitting his wife to use insulting language on the Armypersonal detailed as his personal staff.
Parking his staff vehicle and official vehicle at hisresidence in the night contravening the relevant Armyorders.
Using his official vehicle and another, vehicle hired bythe Army in civil number plates contravening the relevantArmy Orders.
The 1st Respondent submitted that after considering theabove he directed that:
The Petitioner should be warned by the Chief of Staffof the Army having marched before him for the offencecommitted by him abusing his powers as a seniorcommissioned officer in the Army.
The Petitioner should be recommended for retirementfrom the service on the 1st occasion and steps should be
CA
Colonel Fernando vs. lit. General Fonseka
(Sriskandarajah, J.)
105
taken accordingly since his further retention in the Army
is not in the best interest of the Army.
The above opinion and direction of the Commander of theArmy is in the document marked PI7.
The Petitioner challenged the said Court of Inquiryproceedings and its finding on the basis that the witness-es did not sign their statements at the time they were madeand they were signed at a later stage in the absence of thePetitioner. This position was denied by the 2nd to the 4thRespondents; the President and the members of the Court ofInquiry and they submitted that all the witnesses includingthe Petitioner signed their statements at the time they weremade. They further said that in the said Court of Inquiry,the Petitioner was afforded the opportunity of being presentthroughout the inquiry. Further he was allowed to crossexamine the witnesses whose evidence was likely to affecthis character and military reputation, to make statementsand to adduce evidence on his own behalf. In the abovecircumstances the procedure adopted in the Court of Inquiryis in accordance with law hence a writ of certiorari will not lieto quash the proceedings, conclusions and recommendationsof the Court of Inquiry.
The Petitioner submitted that consequent to the Courtof Inquiry no disciplinary action was taken against thePetitioner by way of Summary Trial or Court Martial. ThePetitioner in this application has also sought a writ ofcertiorari to quash the decisions or directions of the 1stRespondent contained in PI7.
The Court of Inquiry is a fact finding inquiry, it is definedin Regulation 2 of The Army Courts of Inquiry Regulations1952, it states:
106
Sri Lanka Law Reports
[2010] 2 SR1L.R.
Court of Inquiry means as assembly of officers, or, of oneor 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 thing 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 recordthe evidence given before it, and at the end of theproceedings it shall record its findings in respect of the matterof matters into which it was assembled to inquire as requiredby the convening authority. The function of the Court ofInquiry is to record evidence and finally to record its findings.
A Court of Inquiry is different from a disciplinary inquiry.In a disciplinary inquiry a charge sheet will be served andthe person accused will have an opportunity to answer thecharges and defend himself. In a Court of Inquiry 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 characteror military reputation of an officer or a soldier the officer orsoldier was afforded an opportunity of being present through-out the inquiry and allowed to cross-examine any witness,make statements and adduce evidence on his own behalf.But this opportunity given to an officer or soldier will not. change the character of the Court of Inquiry into a disciplinaryinquiry.
The Petitioner challenged the decision contain in PI7namely:
To warn the Petitioner,
The Petitioner abused the powers of his rank,
To retire the Petitioner from service on the 1st occasion.
CA
Colonel Fernanda vs. Lt General Fonseka
(Sriskandarajah, J.)
107
The scale of punishment by Summary Trial underSection 42 or the scale of punishment under the CourtMartial under Section 133 of the Army Act does not con-tain any one of the acts mentioned above. Therefore theabove cannot be considered as punishment. As they are notpunishments the Petitioner cannot complain of a fair hearing.In relation to (1) and (2) above the 1st respondent is entitledto come to a conclusion from the evidence recorded in theCourt of Inquiry that the Petitioner has abused the powerof his rank and therefore he should be warned. In terms ofRegulation 2 of the Army Discipline Regulations, 1950 thegeneral responsibility for discipline had been vested in theCommander of the Army. The 1st Respondent exercising hispowers in maintaining discipline directed that the Petitionerbe warned by the Chief of Staff of the Army having marchedbefore him. This order has already been executed and thePetitioner has been warned. In these circumstances a writof certiorari will not be available to quash the decision of the1st Respondent that the Petitioner should be warned by theChief of Staff of the Army for two reasons one is that the 1stRespondent has authority to discipline his officers and hehas acted in the evidence available in the Court of InquiryProceedings. Secondly quashing this decision is futile as ithas been already executed.
The second direction of the 1st Respondent containedin PI7 namely: The Petitioner should be recommended forretirement from the service on the ls< occasion and stepsshould be taken accordingly since his further retention in theArmy is not in the best interest of the Army. The Respondentssubmissions that in terms of regulation 2(l)(a) of the ArmyOfficers Services Regulations (Regular Force) 1992, theauthority has been vested in the Commander of the Armyto submit recommendations interalia for removals andresignations of officers in the rank of Major and above to the
108
Sri Lanka Law Reports
[2010] 2 SRIL.R.
Secretary to the Ministry of Defence for the approval of HisExcellency the President.
But the above regulation does not apply to retirements.The said regulation in regulation 37 states:
No authority other than the President shall require,persuade or induce an officer to retire or resign his commission,and
Regulations 39 states:
An officer may be called upon to retire or resign his commissionfor misconduct or in any circumstance which in the opinionof the President, require such action. An officer so called uponto retire or to resign his commission may request an interviewwith the secretary in order that he may be given an opportunityof stating his case.
From the Regulation 37 and 39 above it is evident thatthe 1st Respondent has no authority to direct to retire thePetitioner from service on the 1st occasion. Therefore thedecision of the 1st Respondent to direct to retire the Petitionerfrom service on the 1st occasion is ultra vires the powers ofthe 1st Respondent. Therefore this court quashes that part ofthe direction contained in document marked PI7.
The contention of the Respondents is that the recom-mendation in P20 is to retire the Petitioner with effect fromlBt September 2007 as he has completed the maximum periodof service in the rank of Lieutenant Colonel in terms of Clause3(1) (b) of the Army Pensions and Gratuities Code 1981 whichis framed under Regulation made under Section 29 and 155of the Army Act. This is an administrative action taken inaccordance with the said Code and it has no bearing in theout come of the Court of Inquiiy proceedings or the finding ofthe 1st Respondent contained in PI7.
CA
Colonel Fernando vs. Lt. General Fonseka
(Sriskandarajah, J.)
109
The Said Code in Clause 3 states:
3(l)(a) Subject as hereinafter provided, all officers shallretire on reaching the age of fifty-five years.
An officer, other than a Quarter master or a shortService Field Commissioned officer, shall retire onthe expiry of such period in the substantive rank heholds as is specified below unless he is promoted tothe next higher rank, within that period.
Substantive rankPeriod-years
Lieutenant06
Captain11
Major10
Lieutenant Colonel08
Colonel05
Brigadier04
….
.-
2 (a) for the purpose of computations of service in theranks referred to in paragraph (1) (b), the service of an officerin a temporary or acting rank shall be reckoned as servicein the substantive rank of such officer during the period heholds such temporary or acting rank.
Notwithstanding anything in this regulation, theSecretary in consultation with the commander of the Army,may retain the services of an officer, other than a short serviceField Commissioned officer, in any rank beyond the periodspecified for that rank in paragraph (l)(b) or beyond the agespecified in paragraph (1) (c), if in the opinion of the President,it is essential in the interest of the Army to do so.
no
Sri Lanka Law Reports
1201012 SRILR.
The Petitioner submitted that he was due to be con-firmed in the rank of Colonel with effect from 31.08.2004 andpromoted to the rank of Brigadier with effect from 01.05.2006.He was not confirmed in the rank of Colonel as the PromotionBoard which sat in June 2006, did not recommend same inview of the Court of Inquiry proceedings. He was promoted tothe rank of Lieutenant Colonel on 31.08.1999. Thereafter on
he was promoted to the rank Temporary Colonel(substantive rank being Lieutenant Colonel). Thus he wouldbe completing the maximum service 8 years in the rank ofLieutenant Colonel on 31.08.2007. This fact was brought tothe notice of the Petitioner by the Director Pay and Recordson 26th February 2007 and invited the Petitioner to make anapplication to continue in service if he so wish. The Petitionermade an application that he be permitted to continue inservice under Clause 3(2)(b) of the Army Pensions andGratuities Code 1981 (which Code is referred to above). As hehas not got a favourable reply he has submitted a Redress ofGrievance to the 1st Respondent through the proper channelson 22nd May 2007. The findings of the 1st Respondentcontained in document marked P17 is dated 30th of May 2007.Therefore it is clear that the findings of the Court of inquiryor the recommendation of the 1st Respondent based on theCourt of Inquiry proceedings has no bearing on the retirementnotice issued on the Petitioner or on the consequent directionto take action to retire the Petitioner contained in lettermarked P20. Hence the decision or direction contained inP20 is in accordance with Clause 3(l)(b) of the Army Pensionsand Gratuities Code 1981 and hence it cannot be quashed bya writ of certiorari.
In view of the above the Petitioner is not entitled to a writof prohibition, prohibiting the l3t, 5th and 6th from retiringand/or recommending the Petitioner to be retired.
CA
Colonel Fernando vs. Lt. General Fonseka
(Sriskandarajah, J.)
Ill
The Petitioner in this application has sought a writof mandamus to take all necessary steps to confirm thePetitioner in the rank of Colonel with effect from 31.08.2004and a writ of mandamus directing the 1st and 6th Respondentsto take all necessary action to continue in service under Clause3(2)(b) of the Army Pensions and Gratuities Code 1981.
The Petitioner is seeking a mandamus to confirm him inthe rank of Colonel. The Petitioner in this application has notestablished that he has a legal right to claim that he shouldbe confirmed in the rank of Colonel. The confirmation of anofficer depends on his performance and other relevant factorsand it is granted only after an evaluation of his servicerecord. Therefore there is no public duty on the part of the 1stRespondent to confirm the Petitioner in the rank of Colonel.
The general rule of Mandamus is that its functionis to compel a public authority to its duty. The essence ofMandamus is that it is a command issued by the SuperiorCourt for the performance of public legal duty. Where officialshave a public duty to perform and have refused to perform,Mandamus will lie to secure the performance of the publicduty, in the performance of which the applicant has suffi-cient legal interest. It is only granted to compel the perfor-mance of duties of a public nature, and not merely of privatecharacter that is to say for the enforcement of a mere privateright, stemming from a contract of the parties Ratnayake andothers v. C.D. Perera and othersJ1*.
The duty to be performed must be of a public nature. AMandamus will not lie to order admission or restoration toan office essentially of a private character, nor in general, willit lie to secure the due performance of the obligations owedby a company towards its members, or to resolve any, otherprivate dispute, such as a claim to reinstatement to member-ship of a trade union, nor will it issue to a private arbitraltribunal” de Smith Judical Review 4th Ed. page 540.
112
Sri Lanka Law Reports
[2010] 2 SRI L.k.
The Petitioner is also seeking a writ of mandamus directingthe 1st and 6th Respondents to take all necessary action toallow the Petitioner to continue in service under Clause 3(2)(b)of the Army Pensions and Gratuities Code 1981. The saidclause vests discretion on the Excellency the President toretain an army officer beyond the stipulated period ofretirement if it is essential in the interest of the Army to do so.The said Clause reads as follows:
The Secretary in consultation with the commander of theArmy, may retain the services of an officer, other thema short service Field Commissioned officer, in any rankbeyond the period specified for that rank in paragraph (1)(b) or beyond the age specified in paragraph (1) (c), if inthe opinion of the President, it is essential in the interestof the Army to do so.
Therefore the Petitioner has no right to request thathe be retained in service under Clause 3(2)(b) of the ArmyPensions and Gratuities Code 1981. The court will not grant aMandamus to enforce a right not of a legal but of a purelyequitable nature however extreme the inconvenience to whichthe applicant might be put; Credit Information Bureau ofSri Lanka v. Messrs Jafferjee & Jafferjee (pvt) Ltdi2K
This court issue a writ of certiorari to quash the decisionof the 1st Respondent namely: “to direct to retire the Petitionerfrom service on the 1st occasion” which is contained in PI7without prejudice to the authority of the 1st Respondent totake action against the Petitioner under Clause 3 (1) (a) or3 (1) (b) of the Army Pensions and Gratuties Code 1981.
The Application for a writ of certiorari is allowed to the extentstated above. The Court makes no order with regard to costs.
LACAMWASAM, J. – I agree.application allowed – Partly.