ABEYNAYAKE v. LT. GEN. ROHAN DALUWATTE AND OTHERS

008-SLLR-SLLR-1998-V-2-ABEYNAYAKE-v.-LT.-GEN.-ROHAN-DALUWATTE-AND-OTHERS.pdf


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Abeynayake v. Lt. Gen. Rohan Daluwatte and Others
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ABEYNAYAKE
v.LT. GEN. ROHAN DALUWATTE AND OTHERS
SUPREME COURTFERNANDO. J..
ANANDACOOMARASWAMY, J. ANDGUNAWARDENA, J.
SC APPLICATION NO. 412/97JANUARY 15TH, 1998
Fundamental rights – Termination of active service in the Sri Lanka Army RegularReserve – Removal of an officer from active service for want of physical fitness- Duty to give reasonable notice of termination – Reserve Regulation 13 – Article12 (1) of the Constitution.
The petitioner was an officer on active service in the Sri Lanka Army RegularReserve. He was subject to heart disease from 1990, and was once classifiedfor light duties. Such duties have to be performed anywhere. He was later classifiedas being fit for normal duties but continued to be subject to heart disease onaccount of which the cardiologist treating him certified that as emergency treatmentwhich he may require is available only at the cardiology unit, he should be stationedin Colombo; whereupon he was permitted to serve in Colombo. Presumably asa matter of discretion for Army order No. 55, section 36 (C) which prescribeddifferent categories of fitness for service did not provide for a category of officersentitled to serve only in Colombo. The petitioner continued to be ill even in 1997when by an order dated 25.4.1997 he was transferred to Vavuniya. The petitionerappealed to the Army Commander against the transfer. In response, the ArmyCommander decided that the petitioner be released from active service with effectfrom 31.5.1997 and placed on the Regular (General) Reserve.
Held:
The petitioner did not have the level of fitness required by section 36 (c); andthat the Army Commander had the power under Reserve Regulation 13 to removehim from active service on that ground. But his summary release from active servicewithout reasonable notice was arbitrary and unreasonable. Such notice is one ofthe legal protections implied in Article 12 (1).
APPLICATION for relief for infringement of fundamental rights.
Mohan Peiris with Miss Nuwanthi Dias, Miss Nirosha Jayamaha and Miss SajaniRanathunga for the petitioner.
Shavindra Fernando, SSC for the respondents.
Cur. adv. vult.
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February 12, 1998FERNANDO, J.
The petitioner alleges that his fundamental right under Article 12 (1)has been infringed by the 1st respondent, the Commander of the Army,by "the termination of [his] services in the active service of the SriLanka Army Regular Reserve".
Having joined the Sri Lanka Army Regular Force in 1960 as aprivate, the petitioner retired in 1981 with the rank of Lieutenant.Thereafter he was commissioned into the Volunteer Force and postedto the Sri Lanka Army General Service Corps (Volunteer) with effectfrom 11.3.85. By the Sri Lanka Army Regular (General) ReserveRegulations, 1987 ("the Reserve Regulations"), the "Regular Reserve"of the Sri Lanka Army was set up, consisting of the "General Reserve"and the "Unit Reserve". It is common ground that by virtue of a newRegulation 16, introduced in 1989, the petitioner was deemed to havebeen transferred to the "Regular (General) Reserve": it is not clearwhether that was the "General Reserve" or the "Unit Reserve", butnothing turns on that. The old Regulation 16 (now 17) makes thoseprovisions of the Army Act and the Regulations made thereunder,which are applicable to the members of the Regular Force, applicablealso to every officer in the General Reserve during the period of hisservice.
The petitioner was in charge of the Special Investigation Branchof the Military Police, Southern Province, from 1988 to 1991, duringwhich period he detected and / or investigated a number of offencescommitted by Army officers; and he also arrested several officers foroffences. While some were convicted, others are yet awaiting trial.In his petition, he did not even suggest that the impugned order wasmade because of the influence of those affected by his work. However,in his counter-affidavit he claimed that he had "incurred the displeasureof several senior army officers as a result of [his] investigating intothe misconduct of some officers of high rank". Inexplicably, he failedto identify the officers, to specify their misconduct, and to explain howsuch displeasure was manifested. The 1st respondent could notreasonably have been expected to answer such vague allegations,which I therefore disregard.
The pleadings do not give particulars of the petitioner's work before1988, and from 1992 to 1994. He was appointed Officer Commanding
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Abeynayake v. Lt. Gen. Rohan Daluwatte and Others
(Fernando, J.)
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the Training Branch. Military Police, Colombo, in December, 1994, andChief Instructor, Military Police, Colombo, in November, 1996. Therespondents accept that his work was quite satisfactory.
It is quite clear that impugned order was not made because ofany shortcomings in his work or conduct, but because of questionsabout his physical fitness arising from his medical history.
Army Order No. 55 deals with "medical procedure". Section 36 (C)provides for assessment and certification of physical fitness after amedical examination every two years. There are three categories offitness:
“ (1) FE (FORWARD EVERYWHERE) – Employable on fullcombatant duties in any area in any part of the world.
LD (LIGHT DUTIES) – Employable in any area in any partof the world but will not be employed in a primarily fighting role.They may be permitted to carry arms.
SD (SEDENTARY DUTIES) – Employable in any part of
Sri Lanka only . . . will not be employed in a primarily fightingrole. They may be used for duties not involving strain but notpermitted to carry arms.
Restrictions special to ailments may be specified after thetwo letter code, e.g. SD X Field Duties, etc.
Persons categorized LD or SD for two years or more willrequire approval of Dte of PA for retention in service".
Section 36 neither recognises nor authorises the recognition of anyother category of fitness.
It is not disputed that the petitioner’s classification or "categoriza-tion", when he was recalled to active service in 1985 was FE, andthat this was reduced to SD in November, 1993 (or perhaps evenearlier, in January, 1992). That reduction was on account of illness,to which I will refer in a moment. Despite deterioration in his conditionhe was again categorized as FE in February, 1994. There was noformal re-categorization thereafter.
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The petitioner developed a chest pain in August, 1990, and wasreferred by the Army Medical Officer to Dr D. P. Atukorale, SeniorConsultant Cardiologist, General Hospital, Colombo, who diagnosed"hypertrophic cardiomyopathy", and treated him. However, bySeptember, 1992, his condition had deteriorated, and Dr. Atukoraleadvised treatment abroad; and in March, 1994, he underwent heartsurgery at the Apollo Hospital in Madras. His condition needed tobe reviewed periodically, and by February, 1997, he had made sixvisits to the Apollo Hospital.
There is no doubt that the petitioner's medical condition affectedthe nature of the duties he could perform, and – more important -the places to which he could be posted. The recommendation whichthe Cardiologist of the Apollo Hospital made in August, 1994, wasthat "he should not be transferred to any station outside Colombowhere adequate cardiac care is not available because he is a highrisk candidate who may need emergency treatment". Accordingly,when he was transferred to Ampara by an order made on 28.10.94(effective 1.11.94), he immediately asked the Director, Army MedicalServices (AMS), to advise the authorities whether he was fit toproceed. He was referred to Dr. Atukorale, who advised that "in viewof his cardiac complications he should be stationed in Colombo as[the necessary facilities are only available at] the Institute ofCardiology, Colombo, and he is also a high risk candidate who mayneed emergency treatment", and that "he is fit to be employed onhis normal Military Police duties while under medication for his cardiaclesion". The Director, AMS, recommended accordingly. The transferwas cancelled, and as already stated he received another postingin December 1994 in Colombo.
A subsequent transfer to Welikanda in December, 1996, wassimilarly cancelled.
On 24.4.97, Dr. Atukorale issued another certificate, addressed tothe Director, AMS, to the effect that the petitioner "is not fit to servein outstations as facilities for treatment are available only in ColomboCardiology Unit", but that he was fit for normal duties while undermedication for his cardiac condition. The next day the petitionerreceived a third transfer order posting him to Vavuniya. By letter date2.5.97 to the 1st respondent, he referred to his medical history andmedical certificates. He pleaded that he was still a high risk heart
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Abeynayake v. U. Gen. Rohan Daluwatte and Others
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patient having to visit the Cardiology Unit regularly, and that it wouldbe a risk to his life if he had to serve away from Colombo, and hetherefore asked that the transfer be cancelled. He averred in hispleadings that his Regimental Commander wrote to the 1st respondentthat he was gainfully and usefully employed in the Training Wing ofthe Military Police and that his knowledge and experience could notbe matched by that of any other Military Police Officer, including someof the Commanding Officers of the Unit: none of that was denied bythe 1st respondent.
The 1st respondent's reply of 7.5.97 is the decision now impugned:that the petitioner "be released from active service with effect from31 May, 1997 and placed on the Regular (General) Reserve".
Learned counsel for the petitioner contended that by virtue ofsection 3 of the Army Act and Reserve Regulation 17, the petitionerwas entitled to the same rights and privileges as officers in the RegularForce: that the impugned order resulted in the petitioner being placedon the Reserve without any remuneration; that before the 1st respond-ent made an order having such drastic consequences, the findingsof a medical board, set up under and in terms of section 74 of theArmy Order No. 55, should have been obtained; that the petitioner'scategorization remained as FE, and that his superiors had failed tohave him medically examined and assessed even though two yearshad elapsed after his last categorization in February, 1994; that thepetitioner had an exemplary and impeccable record of service; andthat the impugned decision was arbitrary, capricious and unreasonable.
In his counter-affidavit, the 1st respondent sought to justify his orderon the following basis. A person in the Regular Reserve must bemedically fit to continue in that Reserve; since the petitioner wasabsorbed into active service from the Regular Reserve, he had tobe medically fit to continue on active service; since the petitionerhimself claimed to be medically unfit to serve in any area outsideColombo, and therefore failed to report for duty in Vavuniya, the 1strespondent was satisfied that he was not physically fit for the dutiesof an Army officer on active service, and therefore released him fromactive service; and, furthermore, although the 1st respondent had eventhe power to remove him from the Regular Reserve itself on accountof Ill-health and/or failure to report and carry out the duties assignedto him, yet he had refrained from taking that extreme step.
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In reply, the petitioner made a new allegation. He named twelveofficers who, he claimed, were similarly situated: they had beenrecalled for active service after retirement, and had been classifiedas FE, but had been continued in service in Colombo. The 1strespondent countered that in fact one of those officers had servedin operational areas for three years, that another was serving in anoperational area, and that none of the others had “been recommendedor confined to Colombo due to medical reasons". I hold that thematerial available does not support that plea of unequal treatment.In any event, for the reasons I set out below, the petitioner cannotbe treated as if he had been categorized as FE at the material time.
I have first to consider several issues connected with the petitioner'shealth, his fitness for duty, his physical fitness classification, and theneed for further medical examination.
Section 36 (c) deals with two aspects of fitness; what duties anofficer is capable of performing (combatant duties, primarily non-fighting duties, or sedentary duties not involving strain), and wherehe is capable of performing those duties (in any part of the world,or only in any part of Sri Lanka, or only in one part of Sri Lanka).There is no doubt that an officer able to serve only in Sri Lanka (andnot elsewhere in the world) cannot be categorized as FE or LD, andthat an officer able to serve only in one part of Sri Lanka cannotbe categorized even as SD. Section 36 (c) (5) imposes a limitationon the fitness for service of those categorized LD or SD: they mayserve for two years, but their retention in service thereafter requiresspecific approval. The necessary implication appears to be that anofficer who fails to obtain an SD categorization is not entitled evento that limited right.
It is quite clear that – whatever the nature of the duties he wasable to perform – the petitioner was fit to serve only in Colombo,and not in any other part of Sri Lanka. That was due to the lackof medical facilities outside Colombo, but it would have made nodifference if it was because of any other reason (e.g. climate). Thereforehe could not possibly have been classified even as SD. Section 36
(4) does not help him, because that applies only where an officerfalls within one of the three prescribed categories, in which event somerestriction might have been placed on the duties which he could havebeen required to perform.
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However, there was no formal assessment and recategorizationafter February, 1994. But the petitioner himself says that he had beenexamined by Dr. Atukorale, upon reference by the Director, AMS, inOctober, 1994, December, 1996 and April, 1997; and that the DirectorAMS, agreed with Dr. Atukorale. The irresistible conclusion fromDr. Atukorale's certificates is that the petitioner could only serve inone part of Sri Lanka, namely Colombo, and at no stage did thepetitioner contest that. He could not possibly have been categorizedeven as SD. The purpose of assessment under section 36 is to enablethe Army to ascertain an officer's level of physical fitness, and athoughthe prescribed procedure was not followed, what was done achievedthe very same purpose in an equally satisfactory manner.
. Learned Counsel for the petitioner strenuously submitted that the1st respondent should have complied with section 74 of Army orderNo. 55:
"INVALIDING AN OFFICER ON MEDICAL GROUNDS
74. When an officer sustains any injury or develops illness ofa severe nature and is unable to perform military duties, he willbe categorized for the injury or the illness for a stipulated periodof time and thereafter periodically reviewed by a medical board.After a considerable period of treatment if the officer does not showsigns of improvement of his condition, the CO of the Unit shouldrequest DAMS … for a medical board to ascertain his/her fitnessto continue in service or otherwise if he feels that such officercannot be gainfully employed in [the] Unit in whichever capacity. .. DAMS will then appoint a medical board in order to determinewhether the officer concerned is fit to continue in service orotherwise. If the medical board recommends that the officer beinvalided from service, medical board proceedings will then besubmitted to DAMS for his approval, [and] the quantity of disabilitywill be considered depending on his/her progress of recovery andrehabilitation. On receipt of the medical board proceedings fromDAMS the Unit will take appropriate action to discharge the officeras per regulations."
Section 70 (a) provides that a medical board may be held for the"recategorization of officers", and in such cases section 71 requiresthe board to consist of three persons, with the possibility of co-optinga civilian specialist through the Director, AMS. The power of a medical
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board to ascertain an officer’s fitness is not unfettered: it must beconsidered in the light of section 36. Section 36 (c) recognises onlythree acceptable levels of fitness: FE, LD and SD; and if an officeris categorized LD or SD for two years or more, he can be retainedin service thereafter only with the approval of some designated body(the "Dte of PA”). The board's power to “recategorize" means to placean officer in another of the three recognized categories (FE, LD orSD) if in the board's opinion that is justified; that is only a power"to ascertain fitness", and not to create new categories of fitness -which, indeed, would amount to amending section 36 (c). Hence theboard cannot authorize the retention in service of an officer who failedto be categorized even as SD. The only exception would seem tobe where the board is of the view that an officer's condition mayimprove with treatment: in that event, retention in service for areasonable period for that purpose would be proper. Section 36 (5)suggests that two years is a reasonable period, and the petitionerhad more than that for recovery.
Here it was clear at least from August, 1994 that the petitionercould not have been classified even as SD. Two years and eightmonths later not only had the position not changed but there wasno prospect of a change for the better. Further, the petitioner neverdisputed that position; throughout, his position was that he could notserve outside Colombo, thus accepting that he could not be classifiedeven as SD. Where there was no dispute as to his condition, andwhere the medical board could not have formed any different opinionas to his standard of fitness, not convening a medical board was atmost an irregularity.
I must now turn to the 1st respondent's power to make theimpugned order. He relies on the Reserve Regulations 13 and 15,which provide:
"13. No officer shall be called out on active service unlessthe Commander of the Army is satisfied as to the physical fitnessof such officer.
15. Any officer of the General Reserve may be removed therefromby the Commander of the Army on the ground of proved miscon-duct, ill-health rendering him unfit to continue to serve in theGeneral Reserve, or failure to report for active service when calledout so to do.”
SCAbeynayake v. Lt. Gen. Rohan Daluwatte and Others
(Fernando, J.)55
Under Regulation 13, if the Commander of the Army is not satisfiedas to the physical fitness of an officer, he may – or rather, he must- refrain from calling him out on active service. The reason is obvious;active service is for those fit for active service. While Regulation 13does not expressly deal with situations in which an officer, thoughinitially fit for active service, subsequently becomes physically unfitfor active service, yet it can hardly be argued that such an officershould continue in active service – for that would be in the interestsof neither the Army nor the officer himself. Physical fitness is thereforea continuing precondition for active service, and it is reasonable tointerpret Regulation 13 as conferring an implied power on theCommander to determine an officer's fitness at any time after the initialcall to active service – of course, after appropriate medical exami-nations, assessments and reports.
That conclusion makes it unnecessary to consider the 1st respond-ent's contention that the petitioner's "ill-health'1 was such that he couldhave been removed from the Reserve: and that, a fortiori, he wasentitled to make the less drastic order of removing him from activeservice while allowing him to remain in the Reserve, because thegreater power necessarily includes the lesser. While that is superficiallyattractive, I doubt whether "ill-health" can always be equated to failureto obtain an SD categorization, and it is arguable that removal fromthe Reserve may require a much greater lack of physical fitness thanthe mere failure to obtain an SD categorization, and that compliancewith the audi alteram partem rule is necessary. Further, the petitionercould not have been regarded as having failed to report for activeservice, because the circumstances known to the Army revealed thathe was not fit for active service.
I hold that the petitioner did not have the level of fitness requiredby section 36 (c) and that this was never disputed; that despite hisretention in service for well over two years his condition did notimprove; and that the 1st respondent had the power under ReserveRegulation 13 to remove him from active service on that ground. Itmay be that the 1st respondent had some residual discretion -particularly because of the acute need for competent and experiencedofficers, and the petitioner's indisputably long, unblemished andexemplary service – to retain the petitioner in service, giving himsedentary duties in Colombo, similar to those which he had performedsince December, 1994. Assuming that there was such a discretion,
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if might well have been exercised in favour of the petitioner: yet thereis nothing which supports the petitioner’s allegation that when the 1 strespondent decided otherwise, he acted unreasonably, or arbitrarily,or through any improper motive. The petitioner has therefore failedto establish that the decision to remove him from active service wascontrary to Article 12. However, although the decision itself cannotbe impugned, the 1st respondent was not free to act arbitrarily,capriciously or unreasonably even in implementing it. Having regardto the length and quality of the petitioner's service, I am of the viewthat his summary release from active service was arbitrary andunreasonable. Reasonable notice of termination is one of the legalprotections implied in Article 12 (1): it is in the interests of the individualand the public; and removal from active service without reasonablenotice would seriously undermine morale in the Army. ReserveRegulation 13 confers an implied power to release an officer fromactive service; there is no justification to treat as an arbitrary andunfettered power, and in the absence of compelling reasons or expressprovision to the contrary, reasonable notice must be implied. In myview, in this instance at least three months' notice should have beengiven. I
I therefore order the State to pay the petitioner three months' salary(including all allowances), and costs in a sum of Rs. 3,000 and dismisshis other claims.
ANANDACOOMARASWAMY, J. – I agree.
GUNAWARDANA, J. – I agree.
Relief granted.