Army ruggerite achieves his goal

The Supreme Court this week ruled that Brigade Commander of the Welioya operational area, Major General (Temporary) Nimal Jayasuriya be confirmed in the rank of Major General after holding that his Fundamental Rights had been violated by withholding his promotion.

Army commander, Lieutenant General Sarath Fonseka, Secretary of the Army Major General Y.S.A De Silva, Secretary to the Ministry of Defense and Director-Army Medical Services Brigadier S.H.Munasinghe were cited as respondents.

The Supreme Court directed the Army to confirm the officer to the rank of Major General prior to May 31. Major Gen Jayasuriya filed a petition claiming that his absence without leave (AWOL) 20 years ago had been used to victimize him, although he had been severely reprimanded for it.

The Court held that a decision in favour of the petitioner by the then Secretary of the Ministry of Defense on the recommendation of the former Commander of the Army had been cancelled without affording Maj Gen. Jayasuriya an opportunity to show cause against such a course of action.

The courts held that documents produced by the Army Commander had not taken into account the minute made by the Secretary who was himself a General that an injustice had occurred and the petitioner had been penalized without consideration of facts.

“Therefore the decisions in the documents that have been made without any notification to the petitioner and without hearing him have been made contrary to the principles of natural justice and are of force or avail in law,” the courts held.

The court noted that the Army Commander had produced documents related to past events that had materialised for the first time, after leave to proceed was granted by the Supreme Court to Maj. Gen. Jayasuriya.

One of the documents related to the failure to prevent civilian protests at Kebithigollwa after the bomb blast which killed a bus load of civilians and the other was related to the use of a local direct dialling facility as an intercom system.

“Those questions should have been raised, if at all at the time the events took place. The documents have the only effect of supporting the strident submission made by the Counsel for the Petitioner of victimisation,” the courts held.

The petitioner Major Gen. Jayasuriya said he joined the Army in 1976 as a 2nd Lieutenant and represented the Army at rugby. He had also received many medals for gallantry.

He said he played rugby for the Army until in 1980 when he suffered a severe spinal injury that compelled him to take complete rest under medical advice. He was treated by Dr. T. Thurairaja and subsequently obtained treatment in Britain.

He said he applied for overseas leave for 84 days starting from July 7, 1985, but due to no fault of his and to lapses in communication between the Ministry of Defence and Army Headquarters his departure was delayed. He said he finally obtained leave for 84 days starting from August 12, 1985 which was to expire in November 5, 1985.

The officer said when his leave was nearing completion he was advised by his doctors in Britain to seek an extension of his leave until he fully recovered. He had then requested a further 10 weeks’ leave from his commanding officer. The leave was recommended by the then Army Commander.

Maj. Gen. Jayasuriya though he was severely reprimanded and penalised with a 77 day no pay leave his promotions were withheld.

The bench comprised Chief Justice Sarath N. Silva, Justices Shiranee Thilakawardena and J Balapatabendi. Attorney Sanjeewa Jayawardena appeared for the petitioner. Senior State Counsel Viraj Dayaratna appeared for the respondents.