Lt. HARISCHANDRA VS. COMMANDER OF THE ARMY AND OTHERS

Lt. HARISCHANDRA
VS.
COMMANDER OF THE ARMY AND OTHERS

COURT OF APPEAL
SRI SKANDARAJAH.J
LECAMWASAM.J
CA, 895/2007
APRIL 27, 2009

Army Act - Sexual relationship with a woman whilst on duty - Court of Inquiry -Discharged on the findings of the Court of Inquiry - Legality - Can an officer be discharged consequent to a Military police investigation and or on a Court of inquiry -When can an officer be discharged? Discharge only by a Court Martial

The petitioner was discharged from the army on the findings of the Court of Inquiry-allegation being that, the officer had engaged in an act of sexual relationship with a woman whilst on duty.

Held:

(1) No disciplinary action was taken against the petitioner by way of summary trial or Court Martial consequent to the Court of Inquiry.

(2) The order that the petitioner should be discharged from the Army on account of a disciplinary violation committed by him amounts to a punishment. This punishment is included in the scale of punishment given under the Court Martial.

(3) The law provides that discharge from the army is a serious punishment which is listed in the scale of punishment that can be imposed by a Court Martial, the officer can be discharged from service only upon conviction after due trial in compliance with rules of natural justice and any attempt to discharge an officer consequent to a military police investigation or on a Court of Inquiry is illegal and ultra vires the provisions of the Army Act.

APPLICATION for a Writ of Certiorari.

Mervin Samarakoon for petitioner

Priyantha Nawana SSC for respondents

July 28, 2009
SRI SKANDARAJAH. J

The Petitioner joined the Sri Lanka Army (Volunteer) Force as an Officer Cadet on 31.12.1993. He was commissioned on 18.06.1994 and was thereafter attached to the 2nd Battalion of the Vijayaba Infantry Regiment. He was transferred to the General Reserve of the Sri Lanka Army Volunteer Force with effect from 02.08.2003. As he has failed to qualify for promotion to the rank of captain within the stipulated period of 08 years from commissioning, he had been recalled from General Reserve of the Sri Lanka Army Volunteer Force for active service with effect from 02.08.2003.

Military Police investigation was conducted into an allegation that the Petitioner had engaged in an act of sexual relationship with a woman of loose morals at a lodge called 'Reno Guest' in Maradana on 09.12.2006 whilst on duty. A Court of Inquiry was appointed to inquire into the said allegation against the Petitioner on 12.12.2006. According to the evidence

recorded in the said Court of Inquiry, the Petitioner was found to have visited a place of ill-fame, that he had engaged in an act of sexual relationship with a woman whilst on duty. A copy of the Court of Inquiry proceedings and the findings are annexed to the objection as R6.

The Respondents contended that based on the findings of the said Court of Inquiry, the Commander of the Army contemplated to take action to discharge the petitioner from the Sri Lanka Army Volunteer Force since he had brought disrepute to the Army. A copy of the said decision is marked as R7.

The Petitioner submitted that he totally denies the said allegation and that no evidence transpired in his presence before the Court of Inquiry that such an incident ever took place. The Petitioner further submitted that the proceedings of the Court of Inquiry was not issued to him and he was not aware of the findings or the recommendations of the Court of Inquiry. The Petitioner submitted that he received on 18.10.2007 the order made by the 1st Respondent dated 02.10.2007 that the Petitioner should be discharged from the SLA(V)F on account of a disciplinary violation committed by him and the recommendation to discharge him should be forwarded to the SLA(V)F headquarters before 01.11.2007.

The Petitioner contended that the aforesaid order is ultra vires, arbitrar

Click Here to Read the rest of this document