Delays led to injustice

By Teles Anandappa

The Supreme Court this week granted additional interim relief to a Major General (temporary) who was summoned to Army Headquarters soon after he was granted leave to proceed in a Fundamental Rights petition in which he claimed that his promotion was withheld over an incident 20 years back.

The petitioner Major General (temporary) Nimal Ainsley Jayasuriya in a motion filed in The Supreme Court said, that after the Court order he was summoned to Army Headquarters on March 19 and the events that transpired have now placed the petitioner in a very serious predicament in respect to the future of his career.

He said in view of “these unexpected, exigent supervening circumstances” he was seeking Court to grant additional interim relief in restraining the 1st to 5th respondents or their servants, agents, assignees and nominees from altering and interfering with the present status quo of the petitioner until the final hearing of this application. He had cited Military Secretary Major General Y.S.A. de Silva, Director Army Medical Services Brigadier S.H. Munasinghe, the Secretary to the Ministry of Defence, the Army Commander Sarath Fonseka and the Attorney General as respondents. When the motion was taken up on Monday, Deputy Solicitor General Sanjay Rajaratnam submitted to the Supreme Court that all respondents had given an assurance that until the case is concluded no steps would be taken to withdraw the Commission of the petitioner and that his status quo in the army would continue.

The Court while granting additional interim relief, held that if there was any new material the respondents could produce it in Court.

The Bench comprised Chief Justice S.N. Silva and Justices Gamini Amaratunge and Saleem Marsoof.

The Major General (temporary) in his Fundamental Rights petition claims that the confirmation of his current position is being unjustly withheld due to an offence committed 20 years ago for which he had already been ‘severely reprimanded’.

The petitioner said that while representing the Army at Rugby in 1980, he had received a severe spinal injury and was treated by Dr. T. Thurairaja and was subsequently treated in Britain as recommended.

He had applied for overseas leave for 84 days beginning July 7 1985. Due to no fault of his own, lapses in communication between the Ministry of Defence and the Army he finally obtained leave for 84 days from August 12 1985 which was to expire on November 5 1985. He stated that while he was being treated in Britain, he was recommended for further treatment by the doctor and he then applied for an extension of 10 weeks leave from his commanding officer.

The leave was recommended by the Army Commander.

He said due to procedural reasons the recommendation was withdrawn and he was warned that if he did not submit the required medical evidence, his extended leave would not be approved and he would be considered a person who was absent without leave (AWOL).He said that in spite of submitting a medical certificate from Dr. J Gould who treated him in Britain, a covering letter containing the endorsements made by the commanding officer of the army hospital and more documents pertaining to his treatment, these documents were not presented to the Inquiring Officer at the inquiry. He claimed that because of this, he was found guilty of the charges and was severely reprimanded in addition to losing pay for 77 days.

He claimed he would not have been found guilty if these documents had been submitted.

He states that if he is not confirmed as a Major General before May 31 this year, he would have to retire from the Army as a Brigadier and this would have an adverse effect on his retirement benefits. Attorney Sanjeewa Jayawardena appeared for the petitioner.