IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Captain M.B.A. Dissanayake, No. 126/5A, Old Puttalam Road, Tisa Wewa, Anuradhapura.

Petitioner SC APPEAL NO: SC/APPEAL/15/2021 SC LA NO: SC/SPL/LA/147/2019 CA APPLICATION NO: CA/WRIT/299/2013 Vs.

1. General Jagath Jayasooriya, Chief of Defence Staff, Block 05, BMICH, Colombo 07.

2. Lieutenant General R.M.D. Ratnayake, Army Headquarters, Colombo 03.

3. Brigadier D.D.U.K. Hettiarachchi, Army Headquarters, Colombo 03.

4. Colonel S.S. Waduge, Army Headquarters, Colombo 03.

5. Colonel H.G.P.M. Kariyawasam, Office of Chief of Defence Staff, Block 05, BMICH, Colombo 07. Respondents AND NOW BETWEEN Captain M.B.A. Dissanayake, No. 126/5A, Old Puttalam Road, Tisa Wewa, Anuradhapura.

Petitioner-Appellant Vs.

1. General Jagath Jayasooriya, Chief of Defence Staff, Block 05, BMICH, Colombo 07.

2. Lieutenant General R.M.D. Ratnayake, Army Headquarters, Colombo 03.

3. Brigadier D.D.U.K. Hettiarachchi, Army Headquarters, Colombo 03.

4. Colonel S.S. Waduge, Army Headquarters, Colombo 03.

5. Colonel H.G.P.M. Kariyawasam, Office of Chief of Defence Staff, Block 05, BMICH, Colombo 07.

Respondent-Respondents Before: Buwaneka Aluwihare, P.C., J.

A.H.M.D. Nawaz, J.

Mahinda Samayawardhena, J.

Counsel: Faisz Musthapha, P.C., with Ranil Samarasooriya, Thushani Machado, Didula Rajapaksha and Madhava de Alwis for the Petitioner-Appellant.

Chaya Sri Nammuni, D.S.G., for the Respondent-

Respondents.

Argued on: 20.06.2022 Written submissions:

by the Petitioner-Appellant on 09.08.2022.

by the Respondent-Respondents on 15.06.2022.

Decided on: 05.09.2023 Samayawardhena, J.

Factual matrix The Appellant was a captain in the Sri Lanka Army attached to the 5th Sri Lanka National Guard at the time material to this appeal. Some members of the 12th Gajaba Regiment of the Sri Lanka Army were reportedly involved in the illegal activity of removing a large quantity of gold from a safe in the Puthukudirppu area in the Northern Province during humanitarian operations in March 2009. The Appellant was indirectly implicated in this act. He is alleged to have been given some gold in recognition of his knowledge of the illegal transportation of the said gold on a subsequent occasion. The Appellant totally denies this.

A Court of Inquiry comprising the 3rd-5th Respondents as members had been appointed to inquire into this matter and report. They found eight Army personnel including the Appellant involved in this illegal activity.

At last, the Court of Inquiry recommended that a complaint be made to the Special Investigation Bureau of the Criminal Investigation Department of the Sri Lanka Police to conduct a formal investigation into this matter and to produce suspects in Court to deal with them under the normal law.

Thereafter, the 2^nd Respondent, the Commander of the Army, upon the evidence led before the Court of Inquiry, made the order dated 13.08.2012 that the Appellant (along with others involved in the act) be decommissioned and disciplinary action be taken.

The Appellant filed an application in the Court of Appeal dated 01.10.2013 naming the Chief of Defence Staff, the Commander of the Army, and the three members of the Court of Inquiry as the 1^st to 5^th Respondents respectively, seeking to quash the aforesaid determination of the Commander of the Army dated 13.08.2012 marked P3 by a writ of certiorari.

The Respondents filed a statement of objections dated 20.07.2015 stating inter alia that the Commander of the Army sent his opinion and recommendation dated 18.10.2013 for the withdrawal of the commission to the secretary of the Ministry of Defence to be communicated to the President (R14); the commission of the Appellant was withdrawn by the President by letter dated 28.11.2013 (R15); in terms of section 9(1) of the Army Act, No. 17 of 1949, as amended, the officers shall be appointed by commissions under the hand of the President; in terms of section 10 of the Army Act, every officer shall hold his appointment during the Presid