COMMANDER OF THE ARMY
COURT OF APPEALDE SILVA, J. (P/CA)
C.A. 1/2000JUNE 28, 2000JANUARY 11,2001FEBRUARY 08. 2001
Army Act – S. 40. S. 40( 1). S. 42 of Amending Act 33 of 1990 – Reversionas punishment – Discharge – Non Warrant Officer – necessity to holdformal Inquiry or Court Martial?
The Petitioner Sergeant was arrested in connection with certain offencescommitted under the Army Act. Prior to the inquiry the Regimental SergeantMajor removed one of the tapes of the petitioner resulting in the Petitionerbeing reverted to the rank of Corporal. After summary trial, with thePetitioner pleading guilty he was reverted to the rank of private as apunishment. Thereafter he was discharged from the Army;
It was contended that (i) the Petitioner has been subjected to doublepunishment i. e. demoting the Sergeant to Corporal rank and then fromCorporal rank to rank of a private.
(ii) The Petitioner's discharge is contrary to the Army Act and as thePetitioner has been punished summarily a further punishment of dischargecannot be imposed subsequently.
In terms of Clause 114 of Special Army order 1 of 1985 the CommandingOfficer could revert a non commissioned and temporary ranker tohis previous substantive post if he deems the ranker to be unfit tohold the temporary rank.
According to S. 40(1) of the Army Act in the case of a non warrantofficer it is not necessary to hold a formal inquiry or to hold a CourtMartial.
(ill) The Petitioner has been discharged from the Army in terms of Clause(XIII) (a) of Table A of Soldier Service Regulation 1 of 1994, on hisservices being no longer required for the Army. In terms of theRegulations, it was a Major General who had authorised the dischargeof the Petitioner.
Mendis u. Commander of the Army(J. A. N. De Silva. J. PICA)
APPLICATION for a Writ of Certiorari.
J. C. Weltamuna with Varuna Mallawarachchl for Petitioner.Ms M. Fernando, S. S. C for 1-5 Respondents.
Cur. adv. vult.
March 21. 2001.
J. A. N. DE SILVA. J. (P/CA)
The petitioner by this application seeks a mandate in thenature of a writ of certiorari to quash the decision made by theSri Lanka Army to discharge the petitioner from the Army andto quash the disciplinary procedure adopted against him.
The facts relating to this application briefly are as follows.The petitioner who was a sergeant and few other soldiers werearrested by the Military Police on 04. 11. 1997 in connectionwith certain offences committed under the Army Act namelymisappropriation of public property (an ECG machine and InfraRed Lamp and selling food items to outsiders) in the VictoryHospital Anuradhapura. They were detained till 12. 12. 1997and a statement of the petitioner was obtained. According todocument marked PI the then Commander of the Army hasapproved the recommendation of a Court of inquiry thatdisciplinary action should be taken against the said soldiersincluding the petitioner.
On 08. 03. 1999 the petitioner was summoned for aninquiry. Prior to the said inquiry the Regimental Sergeant Majorremoved one of the tapes of the petitioner resulting in thepetitioner being reverted on the rank of Corporal. Thereafter onthe same day he was marched before the 2nd respondent as acorporal. On or about 10.03.1999 the petitioner was summarilytried on a charge sheet under Section 40 of the Army Act. Uponthe petitioner pleading guilty to the said charges he was revertedto the rank of private as a punishment. The Commanding Officerof the Sri Lanka Medical Corp recommended the discharge ofthe petitioner from the service and the Major General authorizedthe discharge from Sri Lanka Army with effect from 20.01.2000.
Sri Lanka Law Reports
t200lj 3 Srt L.R.
When this application was taken up for hearing thepetitioner relied on the following grounds in support of theapplication namely,
That the petitioner has been subjected to double punishmenti. e. demoting from sergeant rank to corporal rank and thenfrom corporal rank to the rank of a private.
The petitioner's discharge has not been properly done inthat the decision to discharge the petitioner from the Armywithout a Court Martial is contrary to the Army Act andRegulations made thereunder and in any event as thepetitioner had been punished summarily a furtherpunishment of discharge cannot be imposed subsequently.
On the 1st ground the petitioner's contention is that prior tothe Court of inquiry he held the rank of sergeant of the Sri LankaArmy Medical Corp. The petitioner was reverted from sergeantrank to corporal rank on 08. 03. 1999 prior to him beingmarched before the 2nd respondent in connection with the Courtof Inquiry. The learned Counsel for the petitioner contendedthat this was a punishment. As stated earlier consequent to theCourt of Inquiry the petitioner was reverted to the rank of private.Learned Counsel contended that this was a second punishment.It was his submission that a person cannot be subjected tomultiple punishments for the same offence.
Senior State Counsel Ms. Fernando who appeared for therespondents submitted that the petitioner was not punishedtwice. She pointed out that at the relevant time the petitionerwas holding a "temporary" rank of sergeant. This position hasnot been denied by the petitioner in his counter affidavit eventhough in his original affidavit he affirms as a "sergeant". It washer submission that the Commanding officer could revert a non- commissioned and temporary ranker to his previous substantivepost, if he deems the ranker to be unfit to hold the temporaryrank. Attention of Court was drawn to clause 114 of SpecialArmy Order 1 of 1985 which reads thus,
Mendis v. Commander of the Army(J. A. N. De Silva■ J. PICA)
"If an other ranker, promoted under provisions of the SpecialArmy Order is found unfit to hold the appointment to which heis promoted the Commanding Officer will revert the other rankerto his previous appointment which he held prior to suchtemporary promotion".
In these circumstances I hold that the action of theRegimental Sergeant Major on behalf of the Commanding Officerof removing one of the three tapes of the- petitioner is inaccordance with the law specially because the petitioner washolding a temporary rank of sergeant and as the conduct of thepetitioner was "disgraceful”.
Therefore the only punishment meted out to the petitionerwas reverting him to the rank of "private" from his substantivepost of "corporal" which was done consequent to the petitionerbeen summarily tried and charged under Section 40 and 42 ofthe Army Act as amended by Act No 33 of 1990.
The petitioner's second complaint was that as therespondents failed to hold a Court Martial the decision todischarge him from the Army was bad in law. According toSection 40( 1) and 42 of the Army Act it is clear that in the caseof a non warrant officer it is not necessary to hold a formalinquiry under the Army Act or to hold a Court Martial, sincethere is a clear discretion granted by Statute to hold summarytrial and punish a soldier by reverting him to the lower rank.Therefore this objection too has to fail.
The petitioner further contended that according to ArmyRegulations the authority to discharge a soldier from service isvested with the Commander of the Army or an officer authorizedthereto not below the rank of Major General. Learned Counselfor the petitioner submitted that in the instant case the decisionto discharge had been taken either by Lieutenant Gunaratne orby Brigadier Jayasundera who are officers below the rank ofMajor General and therefore the discharge is contrary to theSoldiers Service Regulations.
Sri Lanka Law Reports
120011 3 Sri L.R.
On a close examination of document marked 1R11 it isclear that the decision to discharge the petitioner from theArmy has taken place in the following manner. By letter dated17. 12. 1999 the Center Commandant recommended thedischarge of the petitioner in view of the many fraudulent actscommitted by him and this recommendation was communicatedto the Colonel Commandant of the Sri Lanka Medical Corp. Byletter dated 20. 12. 1999 the Commander of the Medical Corprecommended the discharge and communicated the same tothe log commander who in turn recommended to Major GeneralKularatne. By his minute dated 04.01.2000 (vide page 3 of 1R11)Major General Kularatne authorized the discharge of thepetitioner from Sri Lanka Army and instructed BrigadierJayasundera who was the Director Personal Administration toactivate the discharge which Jayasundera did on 05. 01.2000.Thus the petitioner has been discharged from the Sri LankaArmy in terms off clause (XIII) (a) pf Table A of Soldier ServiceRegulations No 1 of 1994 (RIO) as his services being no longerrequired for the Army by proper authority. It is observed thatwhen some patriotic soldiers sacrifice their lives for the countrythere are some who make money from this miserable warsituation.
This application is dismissed with costs.