039-SLLR-SLLR-1987-1-UDAYAKUMAR-v.-MAJOR-GENERAL-NALIN-SENEVIRATNE.pdf
UDAYAKUMAR
v.MAJOR GENERAL NALIN SENEVIRATNE
COURT OF APPEAL.
SIVA SELLIAH, J. AND ABEYWIRA, J.
C.A. 477/85.
NOVEMBER 25 AND 28, 1986.
Certiorari and Mandamus-Misappropriation of Army property-Army Court ofInquiry-Army Act-Ss. 24, 29,120-Regulations under Army Act
(Article 18)-Confession-Admissibility in proceedings before Army Courtof Inquiry-Entitlement to pension-Minutes on Pensions.
The petitioner was a sergeant in the Sri Lanka Army recruited in July 1952 and due forretirement on 21.7.74 by which date he would have qualified to receive a pension Buton 17.6.74 he was arrested on a charge of misappropriation of army goods andprosecuted in the Magistrate's Court of Homagama where however he was acquitted.In the meantime there were two Army Courts of Inquiry where the petitioner was tried,found guilty and discharged in 1977 without a pension. The second Court of Inquirywas held without notice to the petitioner and no reliance was being placed on itsfindings. But at the first Court of Inquiry the petitioner was duly tried but theseproceedings were attacked on the ground that a confession was improperly admitted.
Held-
An Army Court of Inquiry is not debarred by Article 18 of the Regulations madeunder the Act from receiving a confession (provided adequate safeguards and cautionsenjoined by the law have been observed). Article 18 only debars the use of theconfession made before the Army Court of Inquiry in other proceedings against him.
There is no legally enforceable right to a pension. Awarding a pension remains amatter of discretion.
Cases referred to:
Attorney-General v. Abeysinghe – 78 NLR 361, 364.
Gunawardena v. Attorney-General – 49 NLR 359
Nixon v. Attorney-General – [1930] Chancery 387.
APPLICATION for writs of Certiorari and Mandamus.
C. L. Wickramanayake for petitioner.
ShibtyA2iz, D.S.G. with P. Ratnayake, S.C. for respondent.
Cur. adv. vult.
January 30, 1987.
SIVA SELLIAH, J.
The petitioner in this case was a sergeant in the Sri Lanka Army havingbeen recruited in July 1952. He was due for retirement on 21.7.74on which date he would have completed 22 years of service andwould reasonably have had the expectation of receiving a pensionfrom the Government. Before that date however he was arrested on13.6.74 by the Military Police for misappropriation of army goods andon 17.6.74 a case was instituted on that charge against him in theMagistrate's Court, Homagama, Case No. 23236. He was howeveracquitted after trial in that case in 1978 for want of evidence.Although the petitioner has stated in paras 8 and 9 of his petition thatthere were two Courts of Inquiry held by the Army in respect of thesame charge and other charges and that the first Court of Inquiry wasconcluded without any blame being attached to the petitioner whilethe second Court of Inquiry was ended abruptly it is manifest thatthese assertions are incorrect in fact and that he was found guilty byboth Courts of Inquiry for misappropriation of Army property (vide para7 of the statement of objection and PI A filed by the petitioner wherethe Deputy Minister of Defence has stated in Parliament that an ArmyCourt of Inquiry has found the petitioner responsible for the lossesarising from fraud and that as his conduct had deteriorated it is notintended to take him back to the service). A petitioner who seeks a•remedy by way of Certiorari owes it to this court that statements ofprimary facts are correctly made and that the assistance of this courtis not sought on flippant and irresponsible material. The learnedDeputy Solicitor-General had rightly conceded that the second Courtof Inquiry has been held without notice to the petitioner andaccordingly he was not relying on its conclusions; but the DeputySolicitor-General contended that as far as this application by thepetitioner is concerned, the conclusions arrived at by the first Court ofInquiry referred to of misappropriation of army goods by the petitionerare sufficient to disentitle the petitioner from the remedy sought.Although learned counsel for petitioner first contended that Courts ofInquiry could not be held under the Army Act but only Courts Martialas provided therein, he later conceded that Courts of Inquiry could bevalidly held under Regulations framed under the Army Act; he howeverstated that the counter affidavit filed on behalf of the 1 st respondentshows that a confession had been made use of (A) and that this wasobnoxious to Article 18 of the Regulations framed (vide Gazette No.10,468 of 7.11.52) which states as follows:
"Except upon the trial of any officer or soldier under section 120of the Act for wilfully giving false evidence before the court, or forcommitting the civil offence of making a false statement on oath orgiving false evidence in the court, the proceedings of a Court ofInquiry, or any confession, statement or answer to a question madeor given at such Court shall not be admissible in evidence against anofficer or soldier nor shall any evidence concerning the proceedingsof the court be given against any officer or soldier."
I am of the view that this provision does not debar the Court of Inquiryfrom receiving a confession (provided the adequate safeguards andcautions enjoined by the law have been observed) as contended bycounsel for petitioner but only debars the use of such confessionmade before the Army Court of Inquiry in other proceedings againsthim.
On the petitioner's own averments in the petition he was arrestedon 13.6.74. He was never restored to duty and thus never completedhis services on the scheduled date of retirement on 21.7.74. Eventhough he stated he was never discharged from service X1 and X2establish that he was duly informed of his discharge from service.
The question then poses itself whether he is entitled to a pension inthe circumstances and whether he is entitled to a pension as of right.While no doubt he has been acquitted of the charge ofmisappropriation in the Magistrate's Court, Homagama on 26.7.78(vide proceedings marked A), the First Army Court of Inquiry hadalready heard evidence and found him guilty four years earlier in 1974
(vide para 7 (a) of the respondent's statement of objection) and hehad been informed of his discharge by X1 and X2 on 28.4.77 and2.5.77 (vide affidavit filed by Major General Seneviratne on 9.5.86).
The substantial question that has arisen in this case is whether thepetitioner has earned his right to a pension and whether the army isunder a duty to pay him a pension as urged in para 18 of the petitionand whether the petitioner has been denied his pension incontravention of the Army Act.
In this connection it is necessary to scrutinize sections 24 and 29 ofthe Army Act (Chapter 357 of the Legislative Enactments).
Section 24 stipulates:
"Every member of the Regular Force and every officer or soldiernot belonging to the Regular Force who is on active service shall beentitled to such pay and allowance, and to be quartered in suchmanner as may be prescribed."
Section 29 stipulates:
"Any officer or soldier, or the widow or any child or otherdependent of any officer or soldier, may be paid a pension orgratuity in such circumstances and at such rates as may be
prescribed.".
A scrutiny of these two sections shows that "while a soldier is entitledto his pay, he may be paid a pension", The distinction in the use oflanguage is significant and does not lend itself to the construction thata pension is a matter of right. It is not a right which is legallyenforceable but remains a matter of discretion. Indeed the first sectionof the Minutes on Pension reads as follows:
"Public Servants have no absolute right to any pension orallowance under that rule and the Crown retains the power todismiss a public servant without compensation."
Section 2 of the Minutes on Pension provides that "a public servantmay be awarded a pension and section 15 provides that the Secretaryto the Treasury may, in his discretion, grant a pension, gratuity orother allowance". Tennekoon, C.J. in Attorney-General v. Abeysinghe(1) stated:
"The expression 'no absolute right' to my mind means 'no legalright'."
It is a signal hoisted by the draftsman to indicate both to thebeneficiaries under the Minutes on Pension and to the court that theMinutes are not to be taken as creating rights enforceable in thecourts. The "no legal right" concept contained in section 1 of theMinutes is then reinforced by the text of rules 2 and 15 which containthe expression "may be awarded" and "may in his discretion grant".Tennekoon, C.J. quoted with approval the decision by Gratiaen, J. inGunawardane v. Attorney General (2) that the Minutes on Pensionmerely regulates the administration of pension by those in whosehands that duty is placed and does not confer upon retiredGovernment Servants any legal right in respect thereof. Vide alsoNixon v. Attorney-General (3) where the House of Lords held that:
"The word is so used so that an eject in any form may benegative. The action destroys the possibility of a claim of legalright."
Towards the conclusion of his submission and reply the counsel for'the petitioner conceded in view of the above decisions quoted by thelearned Deputy Solicitor-General that pension is not a matter of rightbut contended that it should not be arbitrarily denied. In the instantcase, the petitioner was charged before the First Army Court of Inquiryheld in 1974 and found guilty of misappropriation; rigid rules ofdiscipline, conduct and integrity must necessarily be enforcedamongst army personnel; his pension has in the circumstances beenrefused to him. This court sees no reason to quash the decision not topay him a pension nor can it enforce payment by way of Mandamus.As stated by Tennekoon, C.J. in Attorney General v. Abeysinghe(supra) (1) quoted earlier:
"To do so would be a mere brutum fulmen as the payment ofpension is entirely discretionary and the decision of the Secretary tothe Treasury in the context of section 1 of Minutes on Pension istaken in the exercise of a purely administrative discretion which thecourts have no jurisdiction to control."
The application of the petitioner for Writs of Certiorari andMandamus is accordingly dismissed with costs fixed at Rs. 210.
ABEYWIRA, J. – I agree.
Application for writs refused.