FLYING OFFICER RATNAYAKE v. COMMANDER OF THE AIR FORCE AND OTHERS

015-SLLR-SLLR-2008-V-2-FLYING-OFFICER-RATNAYAKE-v.-COMMANDER-OF-THE-AIR-FORCE-AND-OTHERS.pdf


162Sri Lanka Law Reports[2008] 2 Sri L.R
FLYING OFFICER RATNAYAKEv
COMMANDER OF THE AIR FORCE AND OTHERSCOURT OF APPEALSRIPAVAN, J.
SISIRA DE ABREW, J.
CA 104/2005JANUARY 11,2007
Air Force Act – Section 133(1)e – Misappropriation of Funds – Court of Inquiry -Charge sheet – Summary trial – Dismissed from service – Can an officer bedismissed without being convicted by a Court Martial? Commission withdrawn -Futility of the application? Error on the face of the record – Natural Justice.
The petitioner a flying officer attached to the Air Force sought writs ofcertiorari/mandamus to quash the decision of the 1st respondent recommendingthe withdrawal of the commission and to direct the respondents to hold a CourtMartial.
CAFlying Officer Ratnayake v163
Commander of the Air Force and others
The petitioner contended that, he was summoned before a Court of Inquiry torecord a statement regarding alleged malpractices in the Service Institute Fundand thereafter was served with a charge sheet and a summary trial was held andat the summary trial the petitioner requested a Court Martial. The petitionercontended that, he was informed by the respondents that Her Excellency thePresident had approved the withdrawal of his commission. The petitioner'scontention was that in terms of Section 133(1) 3 of the Air Force Act, an officer canbe dismissed from service only upon a conviction by a Court Martial and that hewas dismissed without being convicted by a Court Martial.
Held.
The petitioner is an officer of the Air Force. In terms of Section 133(1) of the Actthe dismissal of an officer from the Air Force can be' done only upon aconviction by a Court Martial. The decision of the 1st respondentrecommending the withdrawal of the commission has been made withoutfollowing the procedure laid down in the law. If the statute which confers thepower lays down how the power is to be exercised, the Court strikes down theaction if the procedural requirement is disregarded. The decision of the 1 strespondent regarding the withdrawal of the commission should be quashed.
Held further
The 1st respondent in his resolution to withdraw the commission had statedthat the Court of Inquiry had established that the petitioner hadmisappropriated funds, but according to the appeal of the 2nd respondent, theCourt of Inquiry had only recommended to take disciplinary action – thereforeit is safe to conclude that on the document recording withdrawal there is anerror on the face of the record which led to violate the rights of the petitioner tocontinue his services in the Air Force.
Per Sisira de Abrew, J.
"Since Her Excellency the President has approved the withdrawal of thecommission, it is futile to issue a writ of mandamus directing the respondents tohold a Court Martial afresh. This order does not prevent Her Excellency thePresident from reconsidering the withdrawal of the petitioner's commission, whichwas based on the reconsideration of the 1 st respondent.
APPLICATION for writs in the nature of certiorari and mandamus.
Cases referred to:-
1. Bardbury and others v Enfield London Borough Council 1967 1 WLR 1311 at1325.
2.. Associated Provincial Picture House Ltd. v Wednesbury Corporation 1948 1KB 233 at 225
Shantha Jayawardane for petitioner.
Anusha Navaratne DSG with Ganga Wakistaarachchi SC for respondents.
Cur.adv. vult.
164Sri Lanka Law Reports[2008] 2 Sri L.R
August 28, 2007SISIRA DE ABREW, J.
This is an application for writs of certiorari and mandamus toquash the decision of the 1st respondent recommending thewithdrawal of the Commission of the petitioner and to direct therespondents to hold a Court Martial in respect of the chargesagainst the petitioner respectively.
The petitioner joined the Sri Lanka Air Force on 1.8.97 as anofficer in the rank of cadet officer. On 12.6.2001 the petitioner waspromoted to the rank of "Flying Officer." On 25.4.2004, thepetitioner was informed by the Scott Officer that a Court of Inquiryhad been appointed to investigate into the malpractices in ServiceInstitute Fund of the Katunayake Air Base. The petitioner wassummoned before the said Court of Inquiry in order to record hisstatement. He appeared before the said Court of Inquiry on
and 28.4.2004 and made his statement. After recordingof the said statement, the petitioner was placed under 'close arrest*and thereafter under 'open arrest'. On 12.8.2004 the petitioner wasserved with a charge sheet containing nine charges. On 13.8.2004a summary trial was held against the petitioner and the petitionerpleaded not guilty to all nine charges. At the summary trial thepetitioner requested for a Court Martial.
On 9.9.2004 the petitioner was served with a letter (P19) dated
signed by the 2nd respondent. The said letter inter aliastated the following things:
The Court of Inquiry convened to investigate into themisappropriation of Service Institute Funds has establishedthat the petitioner had misappropriated the said funds to thetotal of Rs. 428,841/-;
As the petitioner opted to be tried by a Court Martial, actionis taken to proceed with the same on meeting the legalrequirements of recording summary of evidence;
That the petitioner was required to show cause on or before
as to why disciplinary action even culminatingwith termination should not be initiated against thepetitioner;
CAFlying Officer Ratnayake v-j65
Commander of the Air Force and others (Sisira De Abrew, J.)
The petitioner submitted his reply to the letter marked P19denying the allegation of misappropriation. On 22.12.2004 thepetitioner received a letter from the 2nd respondent stating that hisreply had been disregarded by the Headquarters. The 2ndrespondent, by his letter dated 23.12.2004 (P25), informed thepetitioner that Her Excellency the President had approved thewithdrawal of the commission of the petitioner with effect from
The petitioner states that the withdrawal of the saidcommission of the petitioner was based on the recommendation ofthe 1st respondent. He therefore seeks a writ of certiorari to quashthe decision of the 1 st respondent recommending the withdrawal ofthe said commission. This decision of the 1st respondent has beenproduced by the respondents along with their objections marked2R8(a).
The main contention of learned Counsel for the petitioner wasthat in terms of Section 133(1)(e) of the Air Force Act (hereinafterreferred to as the Act), an officer can be dismissed from serviceonly upon a conviction by a Court Martial and the petitioner hadbeen dismissed from service without being convicted by a CourtMartial. Learned Counsel contended that the respondents hadfailed to appoint a Court Martial. The learned DSG for therespondents on the other hand argued that the application filed bythe petitioner was futile as the petitioner's commission had alreadybeen withdrawn. Learned Counsel for the petitioner in reply to thesaid contention submitted that he would abandon paragraph (b) ofthe prayer to the petition and that he would confine himself to thereliefs sought in paragraphs (c) and (d) of the prayer to the petition.In view of this submission by the learned Counsel for the petitioner,the contention with regard to futility need not be considered.
It is an undisputed fact that a Court Martial was not held in thiscase against the petitioner in respect of the nine charges leveledagainst him. The 2nd respondent, in paragraph 21 of his affidavit,admits that the petitioner at the conclusion of the Summary Trialrequested that he be tried by a Court Martial. Further the 2ndrespondent, in his letter P19, too admitted that action would betaken to appoint a Court Martial. But no evidence was placedbefore this Court to establish that a Court Martial was appointed.
166Sri Lanka Law Reports[2008] 2 Sri L.R
Section 133(1) of the Act reads as follows:
Subject to the provisions of Section 134, the following shall bethe scale of punishments, in descending order of severity, whichmay be inflicted on officers convicted of offences by Courts Martial:
death;
rigorous imprisonment;
simple imprisonment;
cashiering;
dismissal from the Air Force;
forfeiture, in the prescribed manner of seniority of rank, eitherin the Air Force or in the corps to which the offender belongs,or in both; or in the case of an officer whose promotiondepends upon length of service, forfeiture of all or any part ofhis service for the purpose of promotion;
severe reprimand or reprimand;
such penal deductions from pay as are authorized by the Act;
The petitioner is an officer of the Air Force. No Court Martial wasappointed even though the petitioner made such a request. Thepetitioner has not been convicted by a Court Martial. Under Section133(1) of the Act, dismissal of an officer from the Air Force can bedone only upon a conviction by a Court Martial. The petitioner inthis case has been dismissed without the said requirement beingcomplied with. The decision of the 1st respondent recommendingthe withdrawal of the commission of the petitioner contained in2R8a has been made without following the procedure laid down inlaw. If the statute which confers the power lays down how thepower is to be exercised, the Court would strike down the action ifthe procedural requirement is disregarded. In this connection, Iwould like to cite the following passage from the judgment ofDanckwerts LJ reported in Bradbury and Others v Enfield LondonBorough Council) at 1325. "It is imperative that the procedure laiddown in the relevant statute should be properly observed. Theprovisions of the statute in this respect are supposed to providesafeguards for Her Majesty's subjects. Public Bodies and Ministersmust be compelled to observe the law; and it is essential that
QAFlying Officer Ratnayake v-j67
Commander of the Air Force and others (Sisira De Abrew, J.)
bureaucracy should be kept in its place." Lord Denning MR in theabove case observed thus; "If a local authority does not fulfill therequirements of the law this court will see that it does fulfill them. Itwill not listen readily to suggestions of 'chaos.' " Applying theprinciples laid down in the above judicial decision, I hold the viewthat the said decision of the 1st respondent recommending thewithdrawal of the commission of the petitioner should be quashed.
Learned Counsel for the petitioner urged that the petitioner wasnot afforded an opportunity to state his defence before the 1strespondent proceeded to recommend the withdrawal of thecommission of the petitioner. Having considered the pleadings ofboth parties I have to conclude that no Court Martial was heldagainst the petitioner. The petitioner was not given an opportunityto state his case. In my view, the 1st respondent has made therecommendation to withdraw the commission of the petitionerwithout following the procedure laid down in law and the rules ofNatural Justice. When a Public Officer takes decisions affecting therights of an individual without following the procedure laid down inlaw and/or rules of Natural Justice such decisions could be termedas unreasonable decisions.
Lord Greene M R in the case of Associated Provincial PictureHouse Ltd. v Wednesbury Corporation(2) at 229 stated thus: "It istrue that discretion must be exercised reasonably. Now what doesthat mean? Lawyers familiar with the phraseology used in relationto exercise of statutory discretions often use the word'unreasonable' in a rather comprehensive sense. It has frequentlybeen used and is frequently used as a general description of thethings that must not be done. Foe instance, a person entrusted withdiscretion must, so to speak, direct himself properly in law. He mustcall his own attention to the matters which he is bound to consider.He must exclude from his consideration matters which areirrelevant to what he has to consider. If he does not obey thoserules, he may truly be said, and often is said, to be actingunreasonably."
In the present case the 1st respondent proceeded torecommend the withdrawal of the Commission of the petitionerwithout following the procedure so laid down in law and the rules ofNatural Justice. I therefore hold that the decision of the 1st
168Sri Lanka Law Reports[2008] 2 Sri L.R
respondent contained in 2R8(a) is unreasonable. The decision ofthe 1st respondent should be quashed on the ground ofunreasonableness too.
The 1st respondent, in his recommendation to withdraw theCommission of the petitioner [2R8(a)] stated that the Court ofInquiry, appointed to investigate into the allegation levelled againstthe petitioner, had established that the petitioner had mis-appropriated service Institute Funds to the total of Rs. 428,841/-.But according to the affidavit of the 2nd respondent filed before us,the Court of Inquiry had only recommended to take disciplinaryaction against the petitioner since there was a prima facie caseagainst him. (Vide paragraph 19 j of affidavit of the 2ndrespondent). Then the above recommendation of the 1strespondent does not appear to be correct. Thus it is safe toconclude that on the document marked 2R8(a) there is an error onthe face of the record which led to violate the rights of the petitionerto continue his services in the Air Force. A writ of Certiorariquashing the recommendation of the 1st respondent should beissued on this ground as well.
For the reasons set out in my judgment, I issuing a writ ofcertiorari, quash the decision of the 1st respondent contained in2R8(a) recommending the withdrawal of the Commission of thepetitioner. Since Her Excellency the President has approved thewithdrawal of the petitioner's Commission, it is a futile exercise toissue a writ of mandamus directing the respondents to hold a CourtMartial afresh. The writ of mandamus sought in terms ofparagraph (c) of the prayer to the petition is therefore refused. Thisorder does not prevent His Excellency the President fromreconsidering the withdrawal of the petitioner's Commission, whichwas based on the recommendation of the 1 st respondent.
SRIPAVAN, J. -I agree.
Application for writ of certiorari allowed.