042-SLLR-SLLR-2006-V-3-ASANGA-vs.-COMMANDER-OF-THE-NAVY-AND-OTHERS.pdf
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ASANGA
VS.
COMMANDER OF THE NAVY AND OTHERS
COURT OF APPEAL,
SRISKANDARAJAH, J.
CA 2405/2004.
Writ of Certiorari-Navy Act- Charge Sheet- Section 89, Section 104, Section120-Guilty-imprisonment-Could it be imposed?-No opportunity given todiscuss case with defending officer-Fair hearing?
The Petitioner was charge sheeted under Section 89, and 104 of theNavy Act. Petitioner pleaded guilty to the 1st charge and not guilty to the2nd charge. Petitioner was found guilty of both charges and sentenced toone month's imprisonment.
It was contended that, Section 89 and 104 of the Navy Act do notentail prison sentences, and that he did not get an opportunity to meet hisdefending officer to discuss the case.
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HELD:
The punishment imposed on the petitioner is lawful as providedunder Section 89-104 with section 120 Navy Act as simpleimprisonment is a lesser severe punishment in the scale ofpunishment than that of dismissal with disgrace.
If the petitioner was not satisfied with the defending officer hewould have made a request to provide another officer or movedfor a postponement at the beginning of-the trial that he needstime to change the defending officer or to discuss with thedefending officer but without any objection the petitioner hadparticipated in the trial defended by his defending officer.
After participating in the trial the petitioner now cannot complainabout the ability of the defending officer or the defence taken bythe defending officer.
APPLICATION for a Writ of Certiorari.
Case referred to:
Issadeen i/s. Director General of Civil Aviation 19962 Sri LR 348
M. Samarakoon with U. Malalasekera for petitioner.
Yresha de Silva SC for respondents.
Cur. adv. vult.
November, 27 2006.
SRISKANDARAJAH, J.The Petitioner was a Petty Officer of the Sri Lanka Navy. He has servedin Trincomalee, Mannar, Kilali, Elavativu, Annalativu, NainativuKurikattuwan and Delft during his career in the Sri Lanka Navy. Hewas awarded with the Poornaboomi, North and East Service and theRiviresa Medals. It is common ground that whilst the Petitioner wasserving at Punkudutivu a summary trial was held against him on
on a charge sheet preferred in terms of Section 89 and104 of the Navy Act as amended. The Petitioner in the trial pleaded
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not guilty to the 1st charge but pleaded guilty to the 2nd charge. ThePetitioner contended that on the day previous to the trial he wasinformed by the Administrative officer, the 3rd Respondent that hisdefending officer at the trial that would be held the following day will beLt. R. G. G. Wickramasinghe the 4th Respondent. But he did not getan opportunity to meet the 4th Respondent to discuss the case withhim.
At the end of the trial the 2nd Respondent found the Petitionerguilty of the 1st charge as well and imposed on him a sentence of onemonth's imprisonment.
The Petitioner contended that the 2nd Respondent has erred inlaw in imposing a prison sentence on the Petitioner, since Section 89and 104 of the Navy Act do not entail prison sentences and thesentence, that could be imposed under the said Section is dismissalwith disgrace from the Navy, or any less severe punishment set out inthe schedule of punishments as appearing in the Navy Act. TheRespondent submitted that the Petitioner was given a fair hearing andthe punishment imposed including the 30 days simple imprisonmentis in accordance with the relevant provisions of the Navy Act (asamended) and as per the scale of punishments stipulated in Section120 of the Navy Act (as amended).
Instructions given under the Sri Lanka Navy Instructions Section5 (Discipline) specifically provides that all officers exercising Judicialpowers are required to follow the rules of natural justice and thecommanding officer is required to provide the services of a defendingofficer at the will of the Accused. The learned Counsel for the petitionersubmitted that the defending officer has not defended the accusedefficiently and he has not got proper instructions from the Petitioner.The duty of the Commanding officer is to make available a defendingofficer subject to service exigencies. According to the Petitioner hewas informed on the previous day of the trial the name of officer who isgoing to defend him in the trial. If the Petitioner was not satisfied withthat officer he would have made a request to provide another officer ormoved for a postponement at the begining of the trial that he needstime to change the defending officer or to discuss with the defendingofficer but without any objection the Petitioner had participated in the
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trial defended by the 4th Respondent. After participating in the trial thePetitioner cannot complain about the ability of the defending officer orthe defence taken by the defending officer.
The Supreme Court held in Issadeen VS Director General of CivilAviation1'':
"Once the petitioner denied the charges, justice plainly requireda proper inquiry at which he could have given 'evidence and calledwitnesses to support his position. It was essential that a fair opportunityshould have been afforded to the Petitioner to be heard in his defence.There has been a failure of a fundamental principal of justice, namely,that a man's defence must always be fairly heard. Procedural fairnessand regularity are of the indispensable essence of liberty."
In this case Kulathunga J. observed: An irreducible minimum ofthe requirements of natural justice are:
the right to be heard by an unbiassed tribunal.
the right to have notice of charges of misconduct, and
the right to be heard in answer to those charges.
In this instant case the two charges which were framed againstthe Petitioner were read to the Petitioner and he pleaded guilty to onecharge and the inquiry proceeded against the other charge. ThePetitioner's defending officer was given an opportunity to cross-examinethe prosecution witnesses and the Petitioner was given an opportunityto call witnesses and to give evidence on his behalf but the accuseddid not call any witness or give evidence. At the conclusion of the Trialthe Petitioner was found guilty. After perusing the previous record ofthe Petitioner and after the submission of the defending officer inmitigation the sentence was imposed on the Petitioner. Th$ punishmentimposed on the Petitioner is lawful as provided under Section 89 and104 read with Section 120 of the Navy Act as the simple imprisonmentis a lesser severe punishment in the scale of punishment than that ofdismissal with disgrace. For these reasons the Court dismisses thisapplication without costs.
Application dimissed.