A SOLDIER alleged to have worked in a bar owned by his wife while on sick leave yesterday withdrew an application for an interlocutory order restraining the Defence Forces from treating him as absent without leave.
The application by Trooper Martin Foley was withdrawn after the court heard it had been "overtaken by events" and that the orders sought were now unnecessary and redundant.
Last December, Trooper Foley, stationed at Connolly Barracks, Longford, secured an interim order preventing the Army from proceeding with a court of inquiry into his absence from work since February 1998.
Mr Justice O'Sullivan granted the interim order after he was told the court of inquiry had been established in the "clear knowledge" of the soldier's illness, subsequent hospitalisation and medical treatment and that Trooper Foley feared he might be dismissed and/or imprisoned if the inquiry proceeded.
In court yesterday, it was stated the soldier had been certified as fit to return to work last January and was undertaking restricted duties under the supervision of an Army doctor.
Mr Edward Walsh SC, for Mr Foley, initially opened but later withdrew his application for a number of interlocutory orders. The withdrawal occurred after exchanges with Mr Justice Peter Kelly and when Mr Maurice Collins, for the State, said the court of inquiry was not proceeding, as Trooper Foley had returned to Army duties. Mr Collins also said an investigation into the soldier's absence would be carried out by a person other than Trooper Foley's own Commanding Officer.
Mr Collins said it was always his case that there was no doubt as to the inquiry's validity but it was now unnecessary and redundant because Trooper Foley had returned to Army duties in January. Trooper Foley could always have argued at the inquiry that he was absent for good reason. Now he had the chance to do so either by means of an investigation by the military authorities or a court martial.
Mr Collins said that when the interim order was applied for, the court was not made aware that Trooper Foley had been repeatedly warned that he had been seen working in his wife's bar, the Dandy Diner in Longford town, while on sick leave.
Mr Walsh said that after his client fell ill in February 1998 he was diagnosed as suffering from a form of arthritis and had at all times been appropriately certified.
Counsel argued that when his client sought the interim order restraining the court of inquiry, there was full disclosure of all relevant matters. It was Mr Foley's case that he did administrative work in his wife's bar but was not running it. Mr Walsh said the steps taken by the Army were invalid, irregular and perhaps unlawful and these matters would be argued at a full hearing of the action.
Ruling on the matter, Mr Justice Kelly said the interim order was now dissolved and he also struck out the interlocutory motion. He said the court could not make orders seeking to stop any investigation, or court martial, by the Army into Trooper Foley's apparent working on his wife's premises while certified as ill. These were matters to be determined under military law as was the status of a general practitioner who had certified the soldier as unfit for military duties.