VITHANE

Vs.

COMMANDER, SRI LANKAN ARMY AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
CA/WRIT/354/2015

Writ of certiorari-Recommendation for withdrawal of commission Army Discipline Regulations 1950, Regulation No. 2-Commander's responsibility to maintain discipline-Reluctance of the court to interfere with disciplinary decisions of tri forces

The petitioner filed this application seeking to quash by way of certiorari the recommendation made to the President by the Commander of the Sri Lanka Army to withdraw the commission of the petitioner from the Sri Lanka Army and the finding of guilt and the lowering of the petitioner's seniority in the Sri Lanka Army.

Held:

1. In general, recommendations are not amenable to writ jurisdiction. Even assuming recommendations are amenable to writ jurisdiction, the petitioner is challenging a conviction and sentence entered and passed about seven years ago. The petitioner is guilty of laches which disentitles him to discretionary relief such as writ.

2. The recommendation for withdrawal of the commission was not solely dependent upon the recent conviction. The charges were serious and involved inhumane conduct on the part of the petitioner and warranted adequate deterrent punishment.

3. The Army Advisory Board comprising five senior officers has recommended that a direction be sought from the President for the withdrawal of the commission of the petitioner "in the best interest of the Army".

4. The Commander makes the request in the best interest of the Army in terms of Regulation No. 2 of the Army Discipline Regulations 1950, which states that "The Commander of the Army shall be vested with general responsibility for discipline in the army."

5. The discipline of the tri forces and the police force is of paramount importance and is best left to the relevant disciplinary authorities

and not to the court to deal with. If there is no discipline, there is no Army, Navy, Air Force or Police Force. The Court in the exercise of writ jurisdiction will not interfere with the internal administration of those establishments which includes taking disciplinary decisions, unless there are compelling cogent reasons to do so.

Faisz Musthapha, P.C., with Arindra Jayasinghe for the Petitioner.

Anusha Fernando, D.S.G., for the Respondents.

cur. adv. vult.

March 25, 2019

SAMAYAWARDHENA, J.

The petitioner filed this application seeking to quash by way of certiorari:

a) the recommendation made by the Commander of the Sri Lanka Army to His Excellency the President to withdraw the commission of the petitioner from the Sri Lanka Army as evidenced by R14, and

b) the finding of guilt and the lowering of the petitioner's seniority in the Sri Lanka Army by 150 slots as evidenced by the documents compendiously marked P5.

The learned President's Counsel for the petitioner seeks to quash the recommendation made by the Commander of the Army as reflected in R14 on three grounds.

a) The recommendation is based on the conviction and sentence imposed by the Court of Inquiry, which had no jurisdiction to do so.

b) The conviction was in violation of the rules of natural justice as it was inter alia made without giving a proper hearing and without adducing reasons.

c) The recommendation constitutes the. imposition of double punishment.

In general, recommendations are not amenable to writ jurisdiction. Even assuming recommendations are amenable to writ jurisdiction (as the said recommendation was the sole basis for HE the President to withdraw the commission), the petitioner is challenging in these proceedings the

conviction and sentence entered and passed about seven years ago. He is clearly guilty of laches, which disentitles him to successfully pursue discretionary relief such as writ. As seen from P6, the petitioner has appealed against that conviction and sentence to the Director of the Legal Branch of the Army and kept silent. No action has been taken by the Director of the L