025-SLLR-SLLR-2009-V-1-CAPTAIL-NAWARATHNA-vs-MAJOR-GENERAL-SARATH-FONSEKA-AND-6-OTHERS.pdf
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CAPTAIN NAWARATHNA
vs
MAJOR GENERAL SARATH FONSEKA AND 6 OTHERS
SUPREME COURTSARATH N. SILVA, C.J.
SHI RANEE TILAKAWARDANE, J. ANDP. A. RATNAYAKA, J.
S.C. APPEAL NO. 43/07SC SPL L.A. NO. 91/2007C.A. WRIT NO. 2402/2004OCTOBER 8th, 2008
ArmyActNo. 17 of 1949 Section 40, – Section 107and 129(1) – Conductprejudicial to the good order and to military discipline whichare military offences – Bias – Test for bias – Real likelihood of bias orreasonable suspicion of bias – Writ of Certiorari – Availability – Invalidexercise of power and valid exercise of power containing an error of lawon the face of the record.
The petitioner who is a captain of the Sri Lanka Army, sought a grantand issue of a Mandate in the nature of Writ of Certiorari from the Courtof Appeal to quash the decisions to dismiss the petitioner from the Armyand to forfeit the petitioner’s seniority, and also sought a grant andissue of a Mandate in the nature of Writ of Prohibition prohibitingthe respondent from conducting further summary trial in respectof the same charge against the petitioner.
The Court of Appeal set aside the recommendation made by the 1strespondent to discharge the petitioner from the Army but it rejected thepetitioner’s application for a Writ of Certiorari quashing the decision toforfeit the petitioner’s seniority in 109 numbers among others.
The Supreme Court granted the petitioner special leave to appeal againstthe 2nd part of the order of the Court of Appeal, refusing to grant a Writof Certiorari to quash the decision to forfeit the petitioner’s seniority.
Held:
(1) Where the petitioners denies that rules of natural justice havenot been complied with and the respondents assert the contrary, a
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petitioner can do no more than deny the compliance with therules of natural justice and the burden is on the respondents toestablish that rules of natural justice have been complied byproducing an acceptable record of proceedings. In the absence ofproduction of such a record of proceedings the Court would nothave any option other than to accept the petitioner’s version thatthere has been procedural impropriety leading to a denial of therules of natural justice.
(2) When an allegation of bias is made the test is'whether the facts, asassessed by Court, give rise to a real likelihood of bias.
Cases referred to:-
Mohamed Mohideen Hassan Vs. N. S. Peiris – (1982) 1 S.L.R. 195.
W. D. Simon v. Commissioner of National Housing – 75 N.L.R. 471.
Metropolitan Properties Co. (F. G. C.) V. Lannon – (1969) 1 Q. B.577
Kumarasena V. Data Management Systems Ltd., – (1987)
2 S. L. R. 190
Dimes v. Grand Junction Canal (1852) 3 H.L.C. 759.
R. V. Sussex Justices ex. p. McCarthy – (1924) 1 K. B. 256
APPEAL from the judgment of the Court of Appeal.
J. C. WeUamuna for Petitioner.
Janak de Silva, S. S. C. for Respondents.
Cur.adv.vult.
May 28, 2009
P. A. RATNAYAKE, J.
This is an appeal from a judgment of the Court of Appeal.The Petitioner in this case who is a Captain of the Sri LankaArmy, filed an application in the Court of Appeal seekingthe grant and issue of a Mandate in the nature of a Writ ofCertiorari quashing the decisions to dismiss the petitionerfrom the Army and to forfeit the Petitioner’s seniority in
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109 numbers and the grant and issue of a Mandate in thenature of Writ of Prohibition prohibiting the Respondent fromconducting a further summary trial in respect of the samecharge for which the petitioner has been purportedly foundguilty.
According to the pleadings before Court, the Petitioner hasjoined the Sri Lanka Army on 15.07.1996 as a Cadet Officer.After 2 years training he has passed out as a SecondLieutenant and was promoted to the rank of Lieutenanton 23.04.2000 and thereafter to the rank of Captain on01.01.2004. He was attached to the ‘Singha Regiment’ ofthe Sri Lanka Army from the time he passed out as a 2ndLieutenant.
It was submitted on behalf of the Petitioner that the 2ndRespondent informed him on 10.05.2004, to appear beforethe 1st Respondent on the next day at 9.00 a. m. When heappeared before the 1st Respondent, accompanied by the2nd Respondent at his office as directed, his then fianceeMs. Rosika Chandrasena and her mother were presentat the 1st Respondent’s office. The 1st Respondent hassubmitted that the Petitioner has been summoned to inquireinto the complaint made by the said Ms. Chandrasena andher mother. The petitioner had stated that he met Ms.Chandrasena in 1994 prior to joining the Sri Lanka Armyand had been associating her as his fiancee since then. Wheninquired by the Is' Respondent, the Petitioner has admittedthat he had an intimate affair with Ms. Chandrasena forover 10 years and that he had sexual intercourse withher on several occasions during the said period havingpromised to marry her, but he had informed her thathe is not prepared to marry her. The 1st Respondent-submits that as the principle Staff Officer of the Sri
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Lanka ‘Singha Regiment’ who is vested with generalresponsibility of maintaining good order and disciplineamong the officers and soldiers of his Regiment and also as aresponsible senior Officer of the Sri Lanka Army, he explainedto the petitioner the gravity of such an act. He had alsoexpressed his view to the effect that when an Officer of the Armyconducts himself in such a manner the confidence placed bythe General Public on the Army will be lost and as a resultof such conduct the reputation of the Army would suffer. Atthis stage, the Petitioner having discussed the issue with Ms.Chandrasena has voluntarily informed the 1st Respondentthat he would take steps to marry Ms. Chandrasena withina period of 6 months. In addition he had voluntarily givenin writing to the 2nd Respondent an undertaking to marryMs. Chandrasena within 6 months from 11.05.2004. A copyof this undertaking has been produced to the Court of Appealby the 1st Respondent marked as ‘1R1’.
The petitioner’s position is that the letter containing theundertaking to marry Ms. Chandrasena was given based onthe direction of the 1st Respondent to hand over such a letterand that he had no option but to hand over a letter to thateffect. The Petitioner further states that thereafter hisrelationship with Ms. Chandrasena was not amiable andaccordingly he had informed her on 23.08.2004 that he wouldnot many her under any circumstances.
When this matter was brought to the notice of the lslRespondent, he had convened a Court of Inquiry to inquireinto the said incident in terms of Army Court of InquiiyRegulation 1952 on the basis that the Petitioner has acted ina manner prejudicial to the good order and military disciplinewhich are military offences punishable under Sections 107and 129 (1) of the Army Act No. 17 of 1949.
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The Court of Inquiry was held and the proceedings ofthe Court of Inquiry were submitted to the Army Commanderwho is the 3rd Respondent who directed that disciplinaryaction be taken against the Petitioner. Thereafter a summarytrial was held under Section 40 of the Army Act No. 17 of1949. The petitioner and the 1st Respondent appear to differon many aspects of this summary trial. The petitioner statesthat he was never served a charge sheet but, Respondentshave taken up the position that he had been served a chargesheet. Discretion is given to the petitioner as to whether heelects to be tried by a Court Martial. The Petitioner statesthat he elected to be tried by a Court Martial, but the 1stRespondent states that the petitioner did not do so. The Is*Respondent states that evidence of 4 witnesses were led at thesummary trial and the Petitioner was given an opportunityto cross examine the witnesses, but the petitioner hasdenied these facts. In a case such as this, where the Petitionerdenies that the rules of natural justice have not been compliedand the Respondents assert the contrary, a Petitioner can dono more than deny the compliance with the rules of naturaljustice and the burden is on the Respondents to establishthat the rules of natural justice have been complied byproducing an acceptable record of the proceedings. In theabsence of production of such a record of proceedings theCourt would not have procedural impropriety leading to adenial of the rules of natural justice by the denial of affordingthe Petitioner the option to elect a trial by court martial andthe opportunity to cross-examine the witnesses.
The petitioner and the 1st and 2nd Respondents agree thatthe summary trial was held by the 1st Respondent and thePetitioner was found guilty by the 1st Respondent whoimposed two punishments i.e. seniority forfeited by 109number and recommended discharge from the Army.
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After the matter was argued before the Court of Appeal,the Court of Appeal has set aside the recommendation madeby the 1st Respondent to discharge the Petitioner from theArmy. The Petitioner has appealed from the said judgmentof the Court of Appeal, in so far as it rejected the Petitioner’sapplication for a Mandate in the Nature of a Writ of Certiorariquashing the decision to forfeit the Petitioner’s seniorityin 109 numbers among others. This court has granted thePetitioner Special Leave to appeal on the following questionsset out in paragraph 11(a), (b), (c), (d) and (e) of the Petition ofAppeal and a further question of law raised by the Counselfor the Respondent.
Paragraph 11(a), (b), (c), (d) and (e) of the Petition ofAppeal states as follows:
“Did the Court of Appeal err in law, by declining to decide
on the procedural impropriety of the Court of Inquiry andthe Summary Trial on the basis that no prejudice beingcaused to the Petitioner?
Did the Court of Appeal err in law when it failed to considerand/or examine the material before Court and/or ruleon the question whether the intimate relationship of thePetitioner with Rosika Chandrasena was against themilitary discipline and Section 129 of the Army Act?
Did the Court of Appeal err in law when it failed toconsider the mala fide conduct of the 1st Respondent inthe purported disciplinary procedure adopted against thePetitioner?
Has the Court of Appeal erred in law in not setting asidethe proceedings and findings of the Court of Inquiry andthe Summary Trial?
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Did the Court of Appeal err in law when it failed to grant
the reliefs sought for by the Petitioner?”
In paragraph 21(iv) of the affidavit, the 1st Respondentstates as follows:-
“On the said direction, a charge sheet containing twocharges under Section 129(1) of the Army Act, No. 17 of 1949was framed against the Petitioner. On 15.11.2004 morninghe was marched before the 2nd Respondent at the RegimentalHeadquarters, Ambepussa and served with a copy of the saidcharge sheet. He had been further informed to be ready togo to Colombo on the following day for the hearing of thesaid charges. On the following day, he was accompaniedto Colombo and marched before me at about 2.00 p.m. onthe said date for the purpose of hearing the said chargessummarily under Section 40 of the Army Act No. 17 of 1949.There I read the charges to the Petitioner and he confirmedthat he understood the charges when it was so clarified.Thereafter when the opportunity was granted to the Petitionerto plead, he pleaded not guilty to the said charge, but didnot elect to be trial by a Court-Martial as claimed by thePetitioner in the said averments. Thereafter the four witnessesincluding Ms. Rosika Chandrasena and her mother werecalled upon to give oral evidence and the Petitioner wasafforded the opportunity to cross-examine them. After followingall the formalities required to be adopted at a Summary Trialin accordance with law, the Petitioner was found guilty on theevidence, and a punishment of forfeiture of seniority by 109numbers on the Officer's Seniority List, 2004 was inflicted onhim. Further it was recommended that his commission bewithdrawn and he be discharged from the Army according tothe direction of the Commander of the Army as mentioned inhis opinion on the Court of Inquiry."
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In paragraph 30 of his affidavit, the 1st Respondent statesas follows:-
"Answering the averments contained in paragraphs 28(f)and 28(g) of the said affidavit, it is stated that the Petitionerwas found guilty at the said summary trial held on
at the Army Headquarters in terms of Section40 of the Army Act No. 17 of 1949 on the evidencerevealed at the said summary trial’, and not on theevidence revealed at the above mentioned Court ofInquiry as claimed by the Petitioner.
Four witness including Ms. Rosika Chandrasena and hermother gave evidence at the summary trial held on thesaid date."
Accordingly, the 1“ Respondent states that he heldthe summary inquiry of the Petitioner. In accordance with'1R6', overleaf the punishment has also been given by the 1strespondent in respect of losing seniority by 109 numbers.Further, it is he who has recommended in the remarkscolumn to discharge the Petitioner from the Army and made areference to the opinion expressed by the Army Commander.
The charge sheet of the summary inquiry was annexedby the 1 st Respondent marked as '1R6'. The 2nd offence onwhich the Petitioner was charged in the charge sheet statesas follows
"Being an Officer of the Regular Force whilst on active ser-vice, you are charged with Conduct Prejudicial to Mili-tary Discipline. In that whilst you were sewing as anOfficer of Sri Lanka Sinha Regiment on a complaint madeby Miss Rosika Chandrasena regarding your failure tohonour your promise to marry her, on being advised by
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the Colonel of the Regiment Sri Lanka Sinha Regimenton 11th day of May 2004 to honour your promise as agentleman officer undertook to marry the said Miss RosikaChandraserta within a period of six months but subse-quently failed to comply with the undertaking given to theColonel Commandant and did thereby act in a mannerunbecoming of an officer and a gentlemen and did therebycommit an offence punishable under Section 129(1) of theArmy Act."
‘Colonel of the Regiment Sri Lanka Sinha Regiment’ and'the Colonel Commandant' Referred to in the above chargesheet is the 1st Respondent.
Therefore, the charge framed against the Petitionerrelated to a breach of an undertaking given by thePetitioner to the l5t Respondent. It is the 1st Respondenthimself who conducted the summary trial, found thePetitioner guilty of the charge after the summary trial andimposed the punishment. In these circumstances, thePetitioner contends that the decision of the 1st respondent isvitiated by the rule against bias.
The test for bias is "real likehood of bias" or "reasonablesuspicion of bias"; vide Mohamed Mohideen Hassen vs.N.S.Peiris^l) and W.D. Simon v the Commissioner of NationalHousing. Senevirathne, J. in Mohamed Mohideen Hassen vs.N.S.Peiris (supra) illustrated these terms at 197 to 198 in thefollowing manner:
‘According to English authorities “Bias” is a ground onwhich the proceeding of a judicial or quasi judicial body canbe quashed. The nature of the bias which the petitioner inan instance like this should prove on grounds of probabilityis a “Real likelihood of bias or reasonable suspicion of bias.”
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A "real likelihood of bias’* means at least a substantialpossibility of bias. The Court, it has been said, will judge ofthe matter as a reasonable man would judge of any matter inthe conduct of his own business.” The test of real likelihood
of bias,is based on the reasonable apprehensions of a
reasonable man fully apprised of the factsHowever, the
pendulum has now swung towards a test of reasonable suspi-cion, founded on the apprehensions of a reasonable man whohad taken reasonable steps to inform himself of the materialfacts. “Reasonable suspicion” tests look mainly to outwardappearances “Real likelihood” tests focus on the court’s ownevaluation of the probabilities; but in practice the tests havemuch in common with one another, and in the vast majorityof cases they will lead to the same result.”
In Mohamed Mohideen Hassen vs. N. S. Peiris(supra)Seneviratne, J. also cites with approval the following dictumof Lord Denning in the case of Metropolitan Properties Co.(F.G.C) Ltd. v. Lannon131 with regard to the test for bias:
“In considering whether there was a real likelihood of bias,the Court does not look at the mind of the Justice himselfor at the mind of the chairman or the tribunal, orwhoever it may be, who sits in a judicial capacity. It doesnot look to see if there was a likelihood that he would, ordid, in fact favour one side at the expense of the other.The Court looks at the impression which would be givento other people. Even if he was as impartial as could be,nevertheless, if right-minded persons would think, that,in the circumstances, there was a real likelihood of biason his part, then he should not sit. And if he does sit,
his decision cannot stand Nevertheless there must
appear to be a real likelihood of bias. Surmise or conjecture
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is not enough. There must be circumstances from whichreasonable men would think it likely or probable that thejustice, or chairman, as the case may be, would or did fa-vour one side unfairly at the expense of the other. The Courtwill not inquire whether he did, in fact, favour one sideunfairly. Suffice, is that reasonable people might think hedid. The reason is plain enough. Justice must be rooted inconfidence: and confidence is destroyed when right -mind-ed people go away thinking: “The Judge was biased. ”
The above dictum of Lord Denning in MetropolitanProperties Co. (F. G. C.) Ltd. vs. Lannon (supra) was cited withapproval more recently in Kumarasena v. Data ManagementSystems LtdA) at 201.
W. R. Wade on Administrative Law (9th Edition, Page450 to 452) cites with approval the two famous cases ofDimes v Grand Junction CanaP] and R v Sussex Justices ex. p.McCarthy161
• In Dimes (supra) Lord Chancellor Cottenham had affirmedseveral decrees made by the Vice Chancellor in favour of acanal company in which Lord Cottenham was a shareholderto the extent of several thousand pounds. Lord Cottenham’sdecrees were set aside by the House of Lords on account ofhis pecuniary interest. Lord Cambell said:
“No one can suppose that Lord Cottenham could be,in the remotest degree, influenced by the interest thathe had in this concern; but, my Lords, it is of the lastimportance that the maxim, that no man shall be a judgein his own cause, should be held sacred. And that isnot to be confined to a cause in which he is a party, butapplies to a cause in which he has an interest*
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McCarthy(supra) a solicitor was acting for a client whowas suing a motorist for damage caused in a road accident.The solicitor was also an acting clerk to the justices beforewhom the same motorist was convicted of dangerous drivingand he retired with them when they were considering then-decision. The fact that the clerk’s firm was acting against themotorist was held to invalidate the conviction even thoughit was proved that the justices had in fact not consulted theclerk and the clerk had scrupulously refrained from sayinganything prejudicial. This case resulted in the celebrated dic-tum of Lord Hewart, C. J. who said:
“It is of fundamental importance that justice should not
only be done but should manifestly and undoubtedly be
seen to be done”.
In the instant case the undertaking referred to in thecharge was given by the petitioner to the 1st Respondent.An important issue that required determination by the 1stRespondent in relation to the charge was whether or notthe failure to honour the undertaking to marry concernedmilitary discipline. If it did concern military discipline,another important decision would have been the appropriatepunishment that should have been imposed on the petitionerhaving regard to the principles of proportionality. Since theundertaking to many was given to the 1st Respondent and thebreach of that undertaking was the gravamen of the charge,reasonable men having regard to all the circumstances wouldthink that the 1'* Respondent would have had an interest todecide against the petitioner and impose a rigid punishment.In all the circumstances of the case I hold that the test of biasset down in the above judicial precedents has been satisfiedin relation to the decision of the 1st Respondent.
Therefore, I allow the appeal and issue a Writ of Certiorariquashing the decision of the 1st Respondent to forfeit the
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Petitioner’s seniority in 109 numbers as prayed for inparagraph (c) in the prayer to the Petition filed in Court ofAppeal together with costs. I note that the Court of Appealhad decided to grant partial relief by issuing writ of certiorarito set aside the recommendation made by the 1st Respondentto withdraw the commission and discharge the Petitionerfrom the army and a writ of certiorari to quash therecommendation to dismiss the Petitioner, which decisionswill stand.
S. N. SILVA, CJ – I agreeTILAKAWARDANE, J. – 1 agree.
Appeal allowed.