013-SLLR-SLLR-2003-1-KUMARA-v.-MAJOR-GENERAL-LIONEL-BALAGALLA-AND-OTHERS.pdf
CA
Kumara v. Major General Lionel Balagalla and others
(Sripavan, J.)
113
KUMARA
v
MAJOR GENERAL LIONEL BALAGALLA AND OTHERS
COURT OF APPEALAMARATUNGA, J..ANDSRIPAVAN, J.
C.A. 1841/2000JUNE 7, 2002
Army Act – Section 20 of the Act – Commander of the Army recommendingthat the services of soldiers who have completed the original period of 12years be retained in service – Approval by Her Excellency given not on caseby case basis – Period of extension not stipulated validly.
The Commander of the Army has sought an order from H.E the President toextend the services of soldiers who have not expressed their willingness toserve for a further period after the expiry of the initial period of twelve years fora period of three months commencing 1.5.1995. However, the Minute of theSecretary of Defence addressed to H.E. the President did not refer to the threemonth period. It says that the Commander had recommended that the servicein terms of section 20 of the Army Act. The petitioner also fell into the category.
Held:
The President had not specified the period for which services may beextended. This is contrary to section 20 of the Army Act which saysthat the President must decide the period to which such prolongationcan be made.
For a proper or lawful exercise of statutory powers, there should notonly be compliance with the substantive formal and proceduralrequirements laid down but also the fair and reasonable exercise ofdiscretion by the Authority vested with such power.
Per Sripavan, J.
“Where an act or thing required by a section of a statute is a conditionprecedent, it would not be competent to a court to dispense with what the leg-islature has made the indispensble foundation of its jurisdiction. The duty of
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court is to interpret the words in accordance, with the language used by thelegislature and not to travel outside on a voyage of discovery.”
When a power is exceeded or abused without authority the purportedexercise is a nullity and cannot be allowed to stand. The power is ineffect regarded as not having been exercised by the proper authority.
APPLICATION for a mandate in the nature of a writ of certiorari / writ ofmandamus
J.C. Weliamuna with Lavangie Weerapana for petitioner.
A. Gnanathasan. Deputy Solicitor General for respondents in CA 1841/01 &1842/01
Rajiv Gunatilake, State Counsel for respondents in CA 1843/01
Cur.ad. vult.
July 24, 2002K. SRIPAVAN, J.
At the commencement of the hearing all Counsel agreed thatC.A.Applications 1824/2001 and 1843/2001 are identical to C.A.Application 1841/2001 and that the judgment in C.A. Application1841/2001 would bind the parties in C.A. Applications 1842/2001and 1843/2001 as well.
The petitioner having joined the Sri Lanka Army on 24th May1988 as a soldier served as a Nursing Assistant till 1992. Thereafterhe followed a Nursing Course for a period of 3 years at the NursingTraining School Anuradhapura offered by the Department ofHealth and promoted to the rank of Temporary Sergeant with effectfrom February 1997. Prior to following the Nursing Course the peti-tioner was required to sign a bond with the Sri Lanka Army agree-ing to serve the Army for a period of five years on successful com-pletion of the said course. The petitioner signed the said bond andcompleted the said bond and completed the said nursing course on15th October 1995.
CA
Kumara v. Major General Lionel Balagalla and others
(Sripavan. J.)
115
In terms of clause 2 of the Soldiers Service Regulations No 1of 1994 (P3) the period of original enlistment of a soldier is 12 yearsof which he shall serve the first five years in the Regular Force andthe remaining seven years in the Reserve unless otherwiseordered by the Commander of the Army. However clause 3 of thesaid Regulation provides for a re-engagement of a soldier for a fur-ther period of military service in the Regular Force, not exceeding12 years subject to the proviso referred to in the said clause.
The petitioner’s original enlistment period as referred to inclause 2 of P3 lapsed on 23rd May 2000 and he was informed byletter dated 8th September 2000 that the orginal period of enlist-ment has been extended by one year till 9th September 2001.Since the petitioner was legally bound to serve the Sri LankaArmy for a period of 5 years on successful completion of theNursing Course, the petitioner appealed for a resignation inNovember 2000 as evidenced by P5 after the completion of thesaid five years. However the petitioner was informed by the 2ndrespondent that the period of original enlistment has been furtherextended till 1st December 2001 (P6). The petitioner alleges thatby P7 dated 12th December 2000 his lawyer informed the firstrespondent of his grievance. Subsequently on 5th March 2001 areminder was sent to the first respondent as evidenced by P8.The petitioner alleges that he did not receive any replies to P7and P8 and as such forwarded another letter dated 21stSeptember 2001 (P9) to the first respondent through his lawyerrequesting for his release from the service of the Sri Lanka Army.No reply was received to P9 as well. On 24th December 2001 afurther letter was sent to the first respondent, by the petitioner’slawyer. To the petitioner’s surprise, he received a letter dated 30thOctober 2001 (P11) extending the period of original enlistmentreferred to in P6 till 1st January 2003.
The petitioner seeks, inter alia,
a Writ of Certiorari to quash the decisions contained in theletters marked P4, P6 and P 11; and
a Writ of Mandamus compelling the 1st to 3rd respondentsto release the petitioner and/or accept the resignation of thepetitioner.
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Learned Deputy Solicitor General appearing for the respon-dents strenuously contended that Her Excellency the President act-ing under section 20 of the Army Act granted the approval for pro-longation of the service of the petitioner on completion of the 12years period of his original enlistment and relied on the lettermarked 1R1 dated 26th May 1995. The learned Deputy SolicitorGeneral re-iterated the position taken up by the first respondent inparagraphs 7, 10 and 11 of his affidavit dated 26th May 2002 andsubmitted that the petitioner’s service after the lapse of the originalenlistment was not a re-engagement in terms of clause 3 of P3 buta prolongation of service.
I am unable to agree with the submissions made by thelearned Deputy Solicitor General. Section 20 of the Army reads asfollows:
“Where the time at which a soldier is entitled to be dis-charged from the army occurs during the period when thewhole or any part of the army is on active service, thePresident may by order prolong the service of that soldier inthe army for such period.”
The question to be asked is whether the aforesaid provisionprovides a blanket prolongation of the services of the soldiers in thearmy by the letter marked 1R1 as submitted by the learned DeputySolicitor General? There is much significance in the use of the
words"prolong the service of that soldier in the army for such
period” in Section 20.
In order to exercise the power given in Section 20 of the ArmyAct, it is my view that the following pre conditions must be satisfied:
the whole or any part of the army must be on active service:
A decision has to be taken by her Excellency the Presidentwhether the prolongation of the service of that soldier isrequired; and
If so, Her Excellency the President must decide the durationof the period to which such prolongation can be made.
Where an act or thing required by a section of a statute is acondition precedent, it would not be competent to a court to dis-
CA
Kumara v. Major General Lionel Balagalla and others
(Sripavan, J.)
117
pense with what the legislature has made the indispensable foun-dation of it’s jurisdiction. The duty of the Court is to interpret thewords in accordance with the language used by the legislature andnot to travel outside on a voyage of discovery. Thus, it appears thatHer Excellency the President has to consider the prolongation ofservice of each and every soldier on a case by case basis.
At the hearing on 17.06.2002, the Court directed the learnedDeputy Solicitor General to produce for the perusal of Court the fol-lowing documents:
the Army Commander’s letter of 25.04.95 referred to in thedocument marked 1R1: and
the orders made by Her Excellency the President in termsof section 20 of the Army Act in respect of the petitioners inthis application and in application Nos 1842/2001 and1843/2001 as well.
The learned Deputy Solicitor General produced the ArmyCommander’s letter dated 25.04.95 and not the orders made byHer Excellency the President in terms of Section 20 of the Army Actin respect of each of the petitioners. All that the Court can do is tosee whether the power which the learned Deputy Solicitor Generalclaimed under Section 20 of the Army Act has in fact been exer-cised by Her Excellency the President.
By letter dated 25.4.1995 the Commander of the Army hassought an order from Her Excellency the President to extend theservices of soldiers who have not expressed their willingness toserve for a further period after the expiry of the initial period of 12years, for a period of 3 months from 01.05.1995. However theminute of Secretary Defence addressed to Her Excellency thePresident does not refer to the period of 3 months set out in theCommander's letter of 25.4.95. It says that the Commander hasrecommended that the services of soldiers who have completedtheir original enlistment period of 12 years be retained in service interms of Section 20 of the Army Act.
Her Excellency the President has approved this. This is anapproval given without considering the case of each solidier on acase by case basis. The President has not specified the period forwhich services may be extended and according to the letter of
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Additional Secretary, Defence dated 21.6.1995 addressed to theCommander of the Army, services may be extended up to any peri-od. This is contrary to Section 20 of the Army Act which says thatthe President must decide the period to which such prolongationcan be made.
For the proper or lawful exercise of a statutory power, thereshould not only be compliance with the substantive formal and pro-cedural requirements laid down, but also the fair and reasonableexercise of discretion by the Authority vested with such power. Inthe absence of any order made by Her Excellency the President interms of Section 20 of the Army Act, prolonging the petitioner's ser-vice after the lapse of the period of original enlistment, this Courtcannot arrive at a finding that the documents P4,P6 and P11 werein fact communications made after an order made by HerExcellency the President.
When a power is exceeded or abused without authority, thepurported exercise is a nullity and cannot be allowed to stand. Thepower is in effect regarded as not having been exercised by theproper Authority.
In view of the foregoing, a Writ of Certiorari is issued to quashthe decisions contained in the documents marked P4, P6 and P11in so far as it relates to the petitioner. Since the petitioner's periodof original enlistment has expired, he cannot be re-engaged for afurther period of military service in,the Regular Force. Hence, a Writof Mandamus is issued directing the first and second respondentsto release the petitioner from the service of the Sri Lanka Army.
As agreed by all courisel, this order would bind the respec-tive parties in CA Applications 1842/2001 and 1843/2001. I makeno order as to costs.
AMARATUNGA , J. – I agree.Application allowed.