026-SLLR-SLLR-2010-V-2-PUSHPAKUMARA-vs.-LIEUTENANT-COMMANDER-WJIESURIYA-AND-OTHERS.pdf
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Pushpakumara vs. Lieutenant Commander Wyesuriya and others
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PUSHPAKUMARA VS.LIEUTENANT COMMANDER WIJESURIYA AND OTHERSCOURT OF APPEALSRI SKANDARAJAH, J.CA 1280/2005MAY 17, 2007JUNE 14, 2007
Writ of Certiorari • Navy Act Section 107 – Board of Inquiry -Dismissal with dishonor • Confirmed by HE the President ■ Doeswrit lie? Constitution Art 35.
After summary trial, the petitioner was informed that he would bedismissed from service with dishonor – for a sexual offence committed.
The appeal made to HE the President was rejected, and was informedthat he was dismissed from the Navy with dishonour.
The petitioner sought to challenge the dismissal.
Held
The dismissal of the petitioner from the Navy with dishonourwas confirmed by HE The President. Court in exercising its writjurisdiction cannot question the decision of the President inview of the immunity of the President from suit as prescribed byArt 35.
It was open to the President to terminate the services of thepetitioner on the basis that the petitioner holds office at thepleasure of the President.
Court cannot quash the recommendation of the 6th respondent asit is not a decision as determination that affects the petitioner’sright and interest but it is only a step leading to a final decision byHer Excellency the President.
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[2010] 2 SRI LR.
APPLICATION for a writ of certiorari.
Cases referred to:
MalUkarachchi vs. Shiva Pasupathi – Attorney General – 1985 1 SriLR 74.
Vice Marshal Elmore Perera vs. Liyanage and others – 2003 1 Sri LR331.
Fernando vs. Nelum Gamage, Bribery Commissioner- 1994 3 Sri LR194.
M. Samarakoon for Petitioner.
M. K. Arulanandan DSG for Respondent.
Cur.adv.vult
December 03rd 2007SRISKANDARAJAH, J.
The Petitioner joined the Sri Lanka Navy on 23rd December1991 as a Naval Recruit and was subsequently promotedto other higher ranks and at the relevant time he was inthe rank of Leading Seaman. The Petitioner submitted thatwhilst he was serving at Boosa Naval Recruitment TrainingCentre on or about 26th July 2004 the Petitioner participatedin a party organised at the said centre. The said partycommenced at about 9 pm on 26.07.2004 and that thePetitioner was continuously present at the party until about2.15 a.m. in the early hours of the next day. The Petitionerfurther submitted that on 27.07.2004 he was placed underopen arrest. On 29.07.2004 a board of inquiry was convenedand statements from him as well as from B. P. S. Dissanayake,a naval recruit were obtained for an alleged sexual offencecommitted by the Petitioner. A statement from one Pahampitiyaa friend of the said recruit was also recorded on the sameday. The Respondents contended that a board of inquirywas held on 12.08.2004 and not on 29.07.2004 and the
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said Board consisted of Lieutenant Commander W. S. K. K.Ratnayake, Lieutenant M. M. B. A Mapa, Sub LieutenantW. Premachandra and Fleet Chief Petty officer H. P. B.Tisaruwan. The Petitioner had not made any complaint in themanner in which the board of inquiry recorded statements.The Respondents further contended that the summary trialcommenced on 17.08.2004 and the charge had been readover to the Petitioner at the Summary Trials The trial wasthereafter postponed to the 23rd of August 2004. Hence theRespondents submitted that the Petitioners allegation thathe was not given adequate time to prepare for trial hasno basis. The Respondents further contended that thePetitioner on his own selected to defend himself and as thecharge against the Petitioner was under Section 104 of theNavy Act as amended an election of Court Martial cannot bemade in respect of this offence.
The Petitioner admitted that he was given an opportunityto cross examine the prosecution witness including thevictim the 1st Respondent the Petitioner had also led evidenceof eight witnesses on his behalf in the summary trial. ThePetitioner submitted that at the conclusion of the summarytrial that he was informed by the 3rd Respondent that he hadarrived at a finding and he would only give a minor pun-ishment by warrant to which he objected and pleaded hisinnocence since the charges against him was not proved.On 10.12.2004 the 6th Respondent read out the punishmentof the Petitioner to the effect that the Petitioner was to bedismissed from service with dishonour.
The Petitioner appealed to her Excellency the Presidentthrough the 6th and the 7th Respondents. On or about
when he was serving at Mannar the Petitioner
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was informed that his appeal had been rejected and that hewas dismissed from the Navy with dishonour.
The Petitioner in this application is seeking a writ ofcertiorari to quash the order of the Summary Trial and toissue a writ of mandamus to compel the Respondents toreinstate the Petitioner in service with all back wages onthe ground that the summary trial as well as the decision todismiss the Petitioner from the navy is null and void and hasno force or avail in law.
The Petitioner’s position is that there was no evidenceto indicate that the Petitioner had sexually abused aperson. All witnesses whose evidence was led by thePetitioner maintained the position that the Petitioner waspresent at the party until about 2.30 a.m. of the 27th July2005 and that therefore the Petitioner was clearly unable tocommit the offence he was charged of which was allegedlycommitted at about 12.15 a.m.
The dismissal of the Petitioner from the Navy withdishonour is confirmed by the Excellency the President of theDemocratic Socialist Republic of Sri Lanka and it is statedin the letter of the Secretary Defence dated 16.05.2005addressed to the Commander of the Sri Lanka Navy. ThisCourt in exercising its writ jurisdiction cannot questionthe decision of the President in view of the immunity of thePresident from suit as provided by Article 35 of theConstitution of the Democratic Socialist Republic of Sri Lanka,Mallikarachchi v. Shiva Pasupathi, Attorney – GenenaP1
In Air Vice Marshall Elmo Perera v. Liyanage And Others21the Court held:
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Pushpakumara vs. lieutenant Commander Wijesuriya and others
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“It was open to the President to terminate the services ofthe petitioner on the basis that the petitioner holds officeat the pleasure of the President.”
The 1st respondent was merely carrying out a fact findinginquiry and the findings or recommendations of therespondent would not be binding on the President. Theessential requirement for the grant of certiorari is thatrights of subject should be affected.”
This Court cannot quash the recommendation of the6th Respondent as is not a decision or determination thataffects the Petitioner’s right or interest but it is only a stepleading to a final decision by His Excellency the President. InFernando v. Nelum Gamage, Bribery Commissioned it was heldby the Supreme Court that the decision of the investigatingpolice officer to make an application to the Magistrate to makean order to assist the conduct of a criminal investigation isnot amenable to certiorari.
In the above circumstances the application of thePetitioner is dismissed without costs.
application dismissed.