Major MaHikarachchi vs. Lt. General Balagalla and Others
MAJOR MALLIKARACHCHIVS.LT. GENERAL BALAGALLAAND OTHERSCOURT OF APPEAL,
CA WRIT 537/2003,
JULY 30, 2003,
FEBRUARY 16, 2005,
Army Act – Section 40 – Court of Inquiry – Misappropriation of Unit rationing andunit funds – Constitution of the Court of Inquiry – opportunity not given to crossexamine -Natural Justice – Summary Trial ■ Found guilty Principle of Doublejeopardy.
A Court of Inquiry inquired into the allegation against the petitioner formisappropriation of Unit rationing and unit funds, misappropriation and misuseof military property.
On the findings of the Court of Inquiry, the 1 st respondent had directed thatthe petitioner to be disciplinary dealt with for the offences committed by him, Inaccordance with this direction he was summarily dealt with by the 6threspondent. The 1st respondent had thereafter decided to withdraw thecommissions of the petitioner and to recover the total amount misappropriated.
The petitioner sought to quash the said orders on the grounds that—
the Court of Inquiry was not property constituted, in that, as the allegedsum misappropriated was in excess of Rs.500,000 a civil officer wasnot nominated to the Court of Inquir/.
that the inquiry was concluded in his absence, on some days.
that, he has been punished twice by the Court of Inquiry and the 6threspondent on the same charges – contrary to the accepted legalprinciples of double jeopardy.
(1) The petitioner was charged for loss amounting to Rs. 593,813.26, outof the total losses in relation to welfare account, simple canteen accountand officers mess account are not money belonging to service or stateor they are not kept in the custody of the service/state therefore theseamounts cannot be considered as losses, defined in the Regulation –
Sri Lanka Law Reports
(2005) 2 Sri L. R.
a civilian officer thus need not be appointed to the court of inquiry', as theloss misappropriation not in excess of Rs,500,000.
The petitioner’s absence on the day of re-examining will not in any wayprejudice him, as he was provided an opportunity to cross-examine thewitness.
The Court of Inquiry is only a fact finding inquiry', and no punitive actionis taken by the Court of Inquiry against anyone, the Petitioner wassummarily dealt with by the 6th respondent in the summary' trial and inthe summary trial the petitioner was found guilty –
The petitioner is not tried or punished twice in the summaryproceedings and there was violation of the Principles of DoubleJeopardy
Application for a writ of Certiorari,
Kalinga Indatissa with Ranil Samarasooriya for petitioner.
A. Gnanathasan D. S. G. for 1st respondent.
cur. ad. vult.
April 27, 2005.
Sri Skandarajah. J.The 2nd Respondent is a Brigadier of the Sri Lanka Army and hefunctioned as the President of the Court of Inquiry and the 3rd, 4th and 5thRespondents, who are Colonel, Lt. Colonel and Major of the Sri LankaArmy respectively, functioned as members of the Court of Inquiry. Thesaid Court of Inquiry inquired into the allegation against the Petitioner formisappropriation of unit rationing and unit funds, misappropriation andmisuse of military property, employment of Army and Civil personnel atthe quarters and for possessing unauthorised weapons and ammunitions.
The 6th Respondent is the Colonel of the Regiment of the GemunuWatch who conducted a Summary Trial into the charges on which theCourt of Inquiry referred to above inquired.
The Petitioner submitted that an alleged problem has arisen between12th March 1997 to 15 th February, 2000 in respect of the misappropriationof unit rationing and unit funds, misappropriation and misuse of militaryproperty, employment of Army and Civil personnel at the quarters and forpossessing unauthorized weapons and ammunitions of the 7th GemunuWatch for which he functioned as the commanding officer. The Sri LankaArmy Military Police investigated these allegations and the petitioner wasarrested on 18th July, 2000 and he was kept in close arrest for 43 days
CAMajor Mallikarachchi vs. Lt. General Balagalla and Others315
and thereafter he was in open arrest for 210 days. After the conclusion ofthe Military Police investigation Court of inquiry was convened on the 15thNovember, 2001 P3 to inquire into the said allegations against the Petitioner.The inquiry commenced on the 11th January, 2002 and continued untilthe 6th May, 2002.
The Petitioner submitted that there was a vital deficiency in theconstitution of the said Court of Inquiry. In terms of paragraph 4 (a) of theSpecial Rules made under No. 2 of Financial Regulation No.102 Relatingto Losses of Three Armed Forces issued by the Ministry of Defence P1,a responsible civil officer has to be nominated as a member to a court ofinquiry by the Secretary to the Ministry of Defence if the alleged loss ormisappropriation is in excess of Rs.500, 000. However, this requirementwas not followed in the said inquiry. The Petitioner further submitted thatnon – observance of the aforesaid rules pertaining to the constitution of theCourt of Inquiry makes the inquiry illegal and unlawful from its very inception.
The Respondents submitted that even though the total value of themisappropriation and fraud committed by the Petitioner was in excess ofRs.500,000 such fraud had been committed in relation to individual andseparate accounts of the 7th Battalion, Gemunu Watch as such the valueof the separate and individual accounts did not exceed Rs.500,000.
The individual and separate accounts and the amount of moneymisappropriated by the Petitioner are :
The Respondents submitted that the above accounts include accountsof commercial nature and they are not public or army funds. Some ofthese accounts are maintained in order to provide welfare facilities suchas canteen facilities for soldiers, Officers’ Mess and Welfare Shop. Thereforea civilian officer is not required to be nominated in these circumstances bythe Secretary to the Ministry of Defence to serve on the said Court ofInquiry.
The requirement under Regulation 4 (a) to nominate a civilian officer bythe Secretary to the Ministry of Defence as a member of the Court of
Account of the President of
Regimental InstituteRs. 285,833.84
Welfare accountRs. 44,986.91
Unit canteen accountRs. 67,315.75
Officers mess accountRs. 93,926.76
Unit savings accountRs.101,750.00
Sri Lanka Law Reports
(2005) 2 Sri L. R.
Inquiry is only in the case where the loss exceeds Rs.500.000. The saidRegulation P1 in Regulation 1 defines losses as :
Physical loss of or damage to Service/ Government Property,including money, stamps, stores, livestock’s crops, plants, tickets,etc.
Loss or damage to property of monetary value which though notthe property of the Service/Government is held in its custody.
The Petitioner was charged for loss amounting to Rs. 593,813.26. Outof this total sum the losses in relation to welfare account, canteen accountand officers’ mess account are not moneys belonging to Service Governmentor they are not kept in the custody of the Service/Government thereforethese amounts cannot be considered as losses defined in the saidRegulation. Therefore the Petitioner's submission that a civilian officershould have been nominated by the Secretary to the Ministry of Defenceto serve as a member of the Court of Inquiry has no merit in thesecircumstances. Therefore, this court cannot accept the submissions ofthe Petitioner that the Court of Inquiry has not been properly constituted.
The Petitioner also submitted that in the Court of Inquiry 28 witnessesand the Petitioner gave evidence. All the witnesses gave evidence affectingthe character and military reputation of the Petitioner. In terms of regulation15(1) of the Army Courts of Inquiry Regulation 1952, an officer should beafforded an opportunity to be present at the Court of inquiry and cross -examine, the witness whenever an inquiry affects the character and militaryreputation of an officer. The Petitioner submitted that the aforesaid regulationwas violated by the Court of Inquiry by not providing the Petitioner anopportunity to cross examine some of the 28 witnesses though their evidenceaffected the character and the military reputation of the Petitioner. ThePetitioner further submitted that he was not even summoned to the Courtof Inquiry at the time certain witnesses were called to give evidence.Therefore the Petitioner submitted that the conduct of the 2nd to the 5thRespondent is irregular arbitrary and is a gross violation of the legitimaterights that was afforded to the Petitioner.
Major MaHikarachchi ks. Lt, General Balagalla and Others
In terms of Regulation 15(1) of the Army Court of Inquiry Regulation1952, an officer or soldiers shall be given an opportunity to cross – examinethe witnesses whose evidence is likely to effect the character and militaryreputation of the said officer or soldier. Out of the 28 witnesses who gaveevidence the Petitioner cross – examined 14 witnesses. The proceedingsdo not indicate at any stage that the Petitioner’s request for crossexamination was refused. Even though'the Petitioner-in this applicationmakes a general allegation that1 he was not provided an opportunity tocross – examine witnesses who gave evidence against him, does notspecifically mention the names of witness whose evidence affect hisreputation and that he was not given an opportunity to cross – examinethose witnesses. The counsel for the Petitioner in his submission broughtto the notice of this court that the proceedings of the court of Inquirydated 14.03.2002 appearing at page 73 shows that the Court of Inquiryconducted it’s proceedings in the absence of the Petitioner, which is inviolation of the said regulations. The said proceeding dated 14.03.2002indicates that witness No. 2 Corporal Weerabahu AWIS was recalled andhis evidence was recorded. In fact, Corporal Weerabahu AWIS has givenhis evidence on 11.01.2002 and he was cross – examined by the Petitioner.After the conclusion of the cross examination, the Court of Inquiryquestioned this witness and the recording of the evidence of this witnesswas concluded. Thereafter several other witnesses were called to giveevidence on subsequent dates and witness No. 2 Corporal Weerabahuwas called on 14.03.2002 for re examination and he was re-examined onthat day Petitioners absence on the day of re-examination will not in anyway prejudice the Petitioner as he was provided an opportunity to cross -examine that witness after the examination in chief and he is entitled toget the copy of the proceedings to know what that witness has said in re-examination. Under these circumstances, this court is of the view that theCourt of Inquiry did not violate the said Regulations.
The Petitioner submitted that the 6th Respondent conducted a SummaryTrial in respect of twelve charges based on the allegations ofmisappropriation of unit rationing and unit funds, misappropriation andmisuse of military property, employment of Army and Civil personnel atthe quarters and for possessing unauthorised weapons and ammunitions.At the conclusion of the aforesaid Summary Trial the 6th Respondent hadalso ordered certain punishments to the Petitioner. The Petitioner submittedthat these punishments are in addition to the punishments imposed bythe Court of inquiry and therefore he has been punished twice for the samecharges and it is totally contrary to the accepted legal principles of doublejeopardy.
Sri Lanka Law Repons
(2005) 2 Sri L R.
The Court of Inquiry is only a fact-finding body and no punitive action istaken by the Court of Inquiry against anyone. On the findings of the Courtof Inquiry, the Commander of the Army had directed that the Petitioner tobe disciplinary dealt with for the offence committed by him. In accordancewith this direction, he was summarily dealt with by the 6th Respondentunder section 40 of the said Act in the Summary Trial. In the SummaryTrial, the Petitioner was found guilty and severaly reprimanded for all thecharges. Therefore, the Petitioner is not tried or punished twice in theseproceedings and this court holds that there is no violation of the principlesof double jeopardy.
The observation of the court of Inquiry had been conveyed to the 1stRespondent and the 1st Respondent by his decision dated 15th August,2002 P4 has decided to withdraw the commission of the petitioner and torecover the total amount that the Petitioner is alleged to havemisappropriated. As the Petitioner's contention to set aside the proceedingsof the Court of inquiry and the Summary Trial are not accepted by thiscourt for the reasons stated above, there is no ground on which the decisionsof the 1 st Respondent based on these proceedings could be challenged.Therefore this application is dismissed without costs.
MAJOR MALLIKARACHCHI vs LT. GENERAL BALAGALLA AND OTHERS