COMMANDER OF THE AIR FORCE AND OTHERS VS. BANDARA

COMMANDER OF THE AIR FORCE AND OTHERS
VS.
BANDARA

COURT OF APPEAL
SUPREME COURT
CHANDRA EKANAYAKE, J
PRIYASATH DEP, PC. J
EVA WANASUNDARA, PC, J
SC 104/2008
CA 414/2005
MAY 22, 2014
MAY 30, 2014

Writ of Certiorari - Air Force Act, Section 40, 42, 43, 102(1), 133 - Officer Cadet - Provisions of the Air Force Act - Do they apply to a Cadet Officer - Discharge from service consequent to a Summary Trial - Charges under Section 102(1) and Section 129 of the Air Force Act - Should the suspect be tried by a Court Martial? - Can a person be discharged from service consequent to a Summary Trial - No person could be punished twice over?

A complaint was made against the Cadet officer - Respondent - that he and another entered into the Residential Quarters of another officer -under Section 104, Section 129 of the Air Force Act - And for violating base standing orders and committing Criminal Trespass. At a Summary Inquiry held he was found guilty of the two charges and was imposed 30 days detention on Charge 1 and 14 days detention on Charge 2. Later he was exonerated on Charge 1 and the sentence of the 2nd Charge was carried out.

However when he reported to work he was informed orally that, he was discharged from the Air Force. The Court of Appeal quashed the said decision of the Appellant.

Special Leave to Appeal was granted by the Supreme Court, it was contended that, the Air Force Act does not apply to Cadet officers and the Air Force, had authority to hold an inquiry and discharge the Respondent on the basis of SNLR (Service No Longer Required)

Held:

(1) It is amply evident that the Respondent was token subject to the Air Force Act. It cannot be heard as correct when the state submits the Respondent is not subject to the provisions of the Air Force Act.

(2) The Respondent was charged under Section 102(1), 129 of the Air Force Act - Under there two sections the suspect has to be tried by a Court Martial.

(3) No person could be discharged from service consequent to a Summary Trial in terms of Section -42 and Section 43 of the Air Force Act. It has to be after a conviction by Court Martial - Charge under Section 102(1), 129 should be tried by a Court Martial.

(4) Ordering a discharge from service is one of the punishments that could be made under Section 133 by a Court Martial.

Per Eva Wanasundara, PC. J.

"The Appellants have not explained as to what caused the Respondent to be punished and discharged from service. He was punished at the end of the Inquiry, after he completed tin-detention period, he was ordered to be discharged. This is equal to a second sentencing which is not allowed in Law. No person could be punished twice over."

APPEAL from the Judgment of the Court of Appeal.

Rajitha Perera, SC. for the Respondent- Appellants.

Rohan Sahabandu, PC for the Petitioner Respondent.

Cur.adv.vult.

September 29, 2014

EVA WANASUNDARA, PC. J.

Leave was granted in this matter on 23.07.2008 on the grounds pleaded in paragraph 6 of the petition dated 05.05.2008. At the commencement of the hearing on 08.05.2014 the questions

of law was confined to only paragraph 6(c), (d), (e) and (f) of the Petition They are as follows:-

6(c) Did the Court of Appeal err in not considering the violation of the base standing orders by the Respondent?

(d) Did the Court of Appeal misconstrue the facts in this case by holding that up to date no formal discharge of the Respondent from the Air Force has been made?

(c) Did the Court of Appeal err in holding that the inquiry and the discharge appear to be arbitrary and outside the provisions of the law when a disciplinary inquiry following principles of natural justice was held against the Respondent?

(f) Did the Court of Appeal err in applying the concept of proportionality to this case when the Respondent was not covered by any statutory provisions?

The Court of Appeal judgment

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