JAYAWEERA

VS.

COMMANDER, SRI LANKA AIR FORCE AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA,J.
OBEYESEKERE, J.
CA/WRIT/88/2015
AUGUST 25, 2020

Writ of certiorari-Air Force Act, sections 155, 161-ltem (xiii) (a) of Table B in the Fifth Schedule to the Regulations reed with Regulation 126(1) made in terms of section 155-Discharge of Warrant Officer under "services no longer required"-Doctrine of Double Jeopardy- Administrative decision-Punishment-Article 15(8) of the Constitution- Error in previous judgments acknowledged

The petitioner was a warrant officer of the Sri Lanka Air Force. In 1994, he was convicted and punished with 28 days' detention and forfeiture of pay for the offence of being absent from work without official leave. He was also issued a letter warning him that he would be subjected to one of four punishments including dismissal from service if he committed another offence. In 2014, the petitioner committed theft of Air Force property. Upon being charged with two offences he pleaded guilty and was punished with reprimand and severe reprimand. Thereafter, he was discharged from service by the Commander of the Air Force under the clause "His services being no longer required" in terms of item (xiii) (a) of Table Bin the Fifth Schedule read with regulation 126(1) made in terms of section 155 of the Air Force Act and published in Gazette No.10,665 dated 23.04.1954. The petitioner flied this application seeking a writ of certiorari to quash the decision of the Commander to discharge

him from service, contending that the said decision was in violation of the doctrine of double jeopardy since he had already been punished for the offence of theft.

Held :

1. Discharge under the clause "services no longer required" is not a punishment per se but largely an administrative decision taken by the Commander of the Air Force in the exercise of his discretion for the greater benefit of the institution, which can only be challenged on the grounds that any other administrative decision can be challenged under judicial review.

2. There is no unfettered, untrammeled or un review able administrative discretion in modern administrative law. The discretion of the Commander is subject to judicial review.

3. It is clear from item (xiii) (a) of Table Bin the Fifth Schedule to the Regulations framed under the Air Force Act that an airman who has already been convicted and sentenced for an offence can be discharged under "services no longer required", as it says such discharge shall be given effect to after "the airman has completed the greater part of his sentence", which means punishment followed by discharge is recognised therein.

4. The decision of the Commander to discharge the petitioner under the clause "services no longer required" is not patently unreasonable or perverse.

Cases referred to :

1. Air Marshal G.D.Perera v. K.H.M.S. Bandara (SC/APPEAL/104/2008, SC Minutes of 29.09.2014)
2. Mangala Pushpakurnara v. Air Chief Marshal Roshan Gunathilake (CA/WRIT/448/2009, CA Minutes of 28.03.2012)
3. Dissanayake v. D.C.J. Weerakoon, Air Commodore (CA/WRIT/124/2015, 125/2015 and 126/2015, CA Minutes of 11.09.'2017)
4. Madushanka v. D.C.J. Weerakoon (SC/SPULA/234/2017,SC Minutes of 05.09.2019)
5. Roberts v. Hopwood [1925] AC 578 at 613
6. Weerathilake v. Commander, Sri Lanka Air Force (CA/WRIT/107/2016, CA Minutes of 05.03.2019)

7. Wasantha Kumara v. Commander, Sri Lanka Air Force (CA/WRIT/171/2015, CA Minutes of 01.07.2020)
8. Peiris v. Chairman, Village Committee of Medasiya Pattu Matale (1960) 62 NLR 546 at 547
9. Palitha v. Monetary Board of the Central Bank of Sri Lanka [2012] 1 Sri LR 199
10. Bank of Ceylon v. Warnakulasuriya (2007} 1 Sri LR 33
11. Dachchaini v. Attorney General [2005] 2 Sri LR 152 at 161
12. State Distilleries Corporation v. Rupasinghe [1994] 2 Sri LR 394

APPLICATION for Writ of Certiorari.

Jagath Abeynayake with Sarangi Sandamali for the Pet