DINGA THANTHIRIGE JAYALATH PERERE VS VICE ADMIRAL W.K.J. KARANNAGODA

• Case Number: 2023SCLR11C2017Y
• Citation: 2023SCLR11C2017Y
• Date: 11 January 2023
• Court: Supreme Court (Sri Lanka)
• Type of Document: Unreported judgment

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DINGA THANTHIRIGE JAYALATH PERERE

VS

VICE ADMIRAL W.K.J. KARANNAGODA

SC Appeal 11/2017
SC SPL LA No. 177/2015
CA Writ No.404/2009

In the matter of an application for Special Leave to Appeal to the Supreme Court in terms of the article 128(2) of the Constitution of the Democratic Socialist Republic of Sri Lanka, from the judgement dated 30.07.2015 of the Court of Appeal in CA Writ Application No. 404/2009.

Dinga Thanthirige Jayalath Perere,
No. 1/64, Kalalgoda Road,
Pannipitiya.

Petitioner-Appellant

Vs.

1. Vice Admiral W.K.J. Karannagoda
Commander of the Sri Lanka Navy
Sri Lanka Navy Headquarters,
Colombo 01.

1A. T.S.G. Samarasinghe
Vice Admiral
Commander of the Sri Lanka Navy
Sri Lanka Navy Headquarters,
Colombo 01.

1B. S.A.M.J. Perera
Vice Admiral
Commander of the Sri Lanka Navy
Sri Lanka Navy Headquarters,
Colombo 01.

1C. Vice Admiral Ravindra C.
Wijegunaratne
Commander of the Sri Lanka Navy
Sri Lanka Navy Headquarters,
Colombo 01.
(Added)

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2. M.R.U. Siriwardene,
Rear Admiral, Sri Lanka Navy
Sri Lanka Navy Headquarters,
Colombo 01.

3. M. Prematillake
Commodore, Sri Lanka Navy
Sri Lanka Navy Headquarters,
Colombo 01.

4. M.A.J. De Costa
Commodore, Sri Lanka Navy
Sri Lanka Navy Headquarters,
Colombo 01.

5. N.W.W.G.W.M.G.M. Gunasekera
Commodore, Sri Lanka Navy
Sri Lanka Navy Headquarters,
Colombo 01.

6. D.S. Udawathha,
Commodore, Sri Lanka Navy
Sri Lanka Navy Headquarters,
Colombo 01.

7. A.K.M. Jinadasa
Captain, Sri Lanka Navy
Sri Lanka Navy Headquarters,
Colombo 01.

8. A.S.M.P. Alahakoon
Captain, Sri Lanka Navy
Sri Lanka Navy Headquarters,
Colombo 01.

Respondent-Respondent

Before : Jayantha Jayasuriya, PC, CJ
L.T.B. Dehideniya, J
Yasantha Kodagoda, PC, J.

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Counsel : Faisz Musthapha, PC with Faiza Markar and Keerthi Tillekaratne for the Petitioner -Appellant.

Rajive Goonetillake, Senior State Counsel for the Respondent-Respondent.

Argued on : 24.07.2020, 22.09.2020 and 21.10.2020

Written submissions filed on : 23.02.2017 and 30.11.2020 by the Petitioner. -Appellant.

06.02.2018 and 05.01.2021 by the Respondent-Respondent.

Decided on : 11.01.2023

Jayantha Jayasuriya, PC, CJ

The Petitioner-Appellant (hereinafter referred to as the "appellant") sought special leave to appeal from this court, aggrieved by the judgement of the Court of Appeal where he invoked the writ jurisdiction of that Court and prayed for Writs of Certiorari. The Court of Appeal by its judgment dated 30th July 2015, while refusing the relief prayed, dismissed the appellant's application.

This Court granted special leave to appeal on the following questions of law:

a) Did the Court of Appeal err in holding that the Appeal, against the sentence passed by the Court Martial under section 122 of the Navy Act, to His Excellency the President is an alternative remedy which ousted the writ jurisdiction of Court in respect of the subject matter of Petitioner's application before the said Court?

b) Did the Court of Appeal err in holding that there was no need for the Court Martial to have given reasons for its verdict on the sole basis that the Code of Criminal Procedure Act does not require the jury to give reasons for its verdict nor does the Navy Act require of Court Martial to give reasons for its findings?

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c) Did the Court of Appeal err in its failure to consider whether judge advocate's directions did not justify the determination of the Court Martial?

d) Is the sentence imposed on the Petitioner violative of Section 104 of the Navy Act?

e) Can this Court grant the Petitioner any relief in view of Section 122 of the Navy Act read with Section 10 of the Navy Act as the Petitioner's decommissioning has been approved by His Excellency the President?

I have had the advantage of reading the draft judgment of Justice Yasantha Kodagoda PC and I agree with the views expressed by his Lordship on the question of law (a) referred to above and hold that that the Court of Appeal erred by holding that the appeal against the sentence passed by the Court Martial under section 122 of the Navy Act, to the President is an alternative remedy which ousted the writ jurisdiction of Court. However, in my view the decision of the Court of Appeal to refuse issuing writs of certiorari and mandamus should not be interfered with, due to my conclusions on the questions of law (b), (c) and (d) on which Special Leave to Appeal was granted by this Court, as more fully described herein below.

The appellant was a Commissioned Officer of the Sri Lanka Navy - a Captain - at the time material to the incidents relating to these proceedings. On 24th July 2008 the appellant who was serving as Commanding Officer at Port of Colombo had been issued with a transfer order requiring him to take up duties as Naval Officer in Charge of Mullikulam, Silavathura and Vankalai with effect from 03rd August 2008. However, this transfer order had been cancelled and by a subsequent transfer order, dated 21st August 2008, the appellant had been transferred to newly established naval deployments in Vankalai and Nanaddan, in Mannar, effective from 04th September 2008 as Contingent Commander. At this point of time, the administration and logistics support for these two naval deployments had been channelled through one of the closest commissioned bases, namely SLNS Gajaba, as the two newly established navy deployments to which the appellant was attached were not commissioned yet. With this appointment the appellant was placed under the Commander of North Central Naval Area. The abovementioned two newly established naval deployments were placed under the aforesaid Commander, for operational purposes in accordance with the administrative structure of the said area.

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On 28th October 2008, around 10.30 pm army camp namely Thalladi army camp, adjacent to the two navy deployments that were under the command of the appellant was subjected to an air attack. At the time of this attack the appellant had been at the commissioned base SLNS Gajaba. At no point did the appellant return to the two navy deployments under his command namely Vankalai and Nanaddan between the commencement of the said attack on the army camp and the time at which the threat of any further attacks ceased.

Following these events, a Navy Board of Inquiry had been appointed and the said board of inquiry had recommended suitable disciplinary action against the appellant. Thereafter, a summary of evidence had been recorded and a Court Martial had been convened as provided for, under the Navy Act. The appellant who was represented by counsel before the Court Martial was found guilty of both charges framed against him, on 13th May 2009. After the findings of the Court Martial on the two charges were pronounced, the counsel for the appellant had pleaded in mitigation and the prosecution had made available the personal file of the appellant and other confidential reports to the Court Martial. Thereafter, the Court Martial had pronounced its sentence after an adjournment of thirty-five minutes. Sentences imposed on the appellant were severe reprimand for the first charge and dismissal without disgrace for the second charge. The appellant on the following day namely 14th May 2009 had made an application for revision of the sentence to the President, in terms of section 122 of the Navy Act. While the decision of the said appeal to the President was pending, the appellant invoked the jurisdiction of the Court of Appeal on 25th June 2009. The appellant in the said application prayed for writs of certiorari to quash the report of the board of inquiry, the charge sheet, summary of evidence recommending a court martial and the findings and sentence of the Court Martial.

Two charges on which the appellant was found guilty and sentenced were; first, that the appellant, between the period 15th September 2008 and 10th November 2008 (other than on days that he was on leave or absent for health reasons) stayed away or left the place of deployment namely Vankalai and Nanaddan naval deployments at night without permission of a proper authority and thereby committed an offence under section 60(2) of the Navy Act as amended; second, that in the night of 28th October 2008, the appellant failed to return to his tactical area of command after receiving information on the air attack on Thalladi Army camp while being the Contingent Commander of the two navy deployments - Vankalai and Nanndan, and thereby

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committed an offence under section 104(1) of the Navy Act, as amended. Evidence of several witnesses had been presented before the Court Martial. On behalf of the prosecution the Area Commander of the North Central Command, the secretary to the area commander, Deputy Area Commander and the Commanding Officer of Vankalai had testified. On behalf of the appellant, the appellant himself, Commanding Officer of SLNS Gajaba, Contingent Commander Mannar, Commanding Officer Naval Deployment Silavathura and Logistics Officer, SLNS Gajaba had testified before the Court Martial.

The Court of Appeal having considered the material presented before it and the submissions of counsel for all the parties had dismissed the application of the appellant where he sought writs of certiorari to quash inter alia findings and sentence of the Court Martial. The Court of Appeal in dismissing the application had held that there is no legal duty on the Court Martial to give reasons for its verdict and that the appellant had sought an alternative remedy, namely that the appellant had submitted an appeal to the President in terms of section 122 of the Navy Act. Furthermore, in refusing to grant relief to the appellant, the Court of Appeal had observed that the appellant holds office at the pleasure of the President in terms of section 10 of the Navy Act and the President had refused the application made by the appellant in terms of section 122 of the Navy Act.

The learned President's Counsel for...