LOKUHENNADIGE VS. LT. GENERAL SARATH FONSEKA AND OTHERS

LOKUHENNADIGE VS. LT. GENERAL SARATH FONSEKA
AND OTHERS

COURT OF APPEAL
SRISKANDARAJAH, J.
CA 1274/2006
MARCH 12, 2009

Army Act - Section 27 (d) - Court of Inquiry - Disqualification to be a member of the Court of Inquiry - Power to deduct sum ordered from pay or allowance - Validity - Judicial Review - appeals - Difference - Withdrawing of commission -Dismissed from Army - Can punishment be imposed without holding inquiry? Punishment - Surcharge is it a punishment?

On an investigation by Military Police into an "air ticket fraudn the petitioner a Captain in the Army was taken into custody, a Court of Inquiry inquired into the incident and recommended that the respondent should recover from the petitioner and two others, the said sum, to take disciplinary action against those who were found responsible, and to take steps to withdraw the commission and to dismiss the 3 officers. It was contended that, the 3'd respondent was disqualified to sit as a member of the Court of Inquiry - as he was a beneficiary of a ticket obtained from the Directorate as he is witness to the transactions and that the 6th respondent did not participate on all days of the inquiry, that there was no evidence to prove that the petitioner misappropriated the alleged sum by issuing air tickets to third parties.

Held

(1) As there is no allegation against the 3rd respondent that he had any interest or involvement in the said fraud or misappropriation - he is not disqualified.

(2) Absence of the 6th respondent on some dates of the inquiry would not have caused any impact on the outcome of the findings.

(3) Function of the Court of Inquiry is to record evidence and finally to record its findings.

(4) The 1st respondent has the power to deduct the said sum from the pay or allowance due to the officer. When an authority is empowered by law to arrive at a decision after consideration of the material before it this Court cannot in those proceedings interfere with the decision. Judicial Review - Court is concerned with its legality.

(5) The recovery or deduction of the said sum from the salary of the petitioner is not a punishment but to make good the loss incurred by the Army - it is only a surcharge.

(6) The 1st respondent has the authority to direct a disciplinary inquiry, any punishment on the petitioner can only be imposed after such disciplinary inquiry.

Held further

(7) The decision to withdraw the commission and to dismiss the petitioner tantamount to punitive action. Dismissal from the Army is in the scale of punishment of the Court Marshal, therefore without holding a disciplinary inquiry no punishment can be imposed. Without finding the petitioner guilty to the charges the 1st respondent cannot direct to take steps to withdraw the commission and to dismiss him from the Army on the basis that he was found responsible for the fraud from military police investigations and the Court of Inquiry.

APPLICATION from a Writ of Certiorari.

Case referred to:-

Best Footwear (Pvt.) Ltd and two others us. Aboosally, former Minister of Labour and Vocational Training and others - 1997 - 2 Sri LR 137

Ransiri Fernando with Senaka Amarajith for petitioner

Farzana Jameel DSG with Deepthi Tilakawardene SC for respondents

July 09th 2009
SRISKANDARAJAH. J

The Petitioner submitted that he was enlisted to the Sri Lanka Army on 03.11.1990 and at all time material to this

application he served as a Caption of the regular force of the Sri Lanka Army. He was attached to the Directorate of Movement of the Sri Lanka Army with effect from 23.09.1998 as an additional'staff officer III. He submitted that during the time material to this application, his superior officer was one Major Hettiarachchi and the clerk in charge of the subject of overseas travel was one Corporal Dahanayake. The Respondents submitted that Major Hettiarachchi had served in the said Directorate from 26.02.1996 t

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