N. Bandula Karunarathna J. P/CA

This is an application for a writ of certiorari by the petitioner to quash the 3rd respondent's award dated 21.11.2022 marked as P-12(b) and the same contained in the ‘Extraordinary Gazette Notification’ bearing No. 2312/05 dated 27.12.2022 marked as P-12(c).

By the instant application, the petitioner is seeking to challenge and quash the purported arbitration award dated 21.11.2022 granted at the arbitration bearing No. A/ 61/2020 pertaining to the purported dispute between the petitioner and the 4th respondent which was referred to settlement by compulsory arbitration in which the 3rd respondent was appointed as the arbitrator.

The said award that was granted has been published in the Extraordinary Gazette bearing No. 2312/05 dated 27.12.2022.

In light of the provisions contained in section 31 DDDDD of the Industrials Disputes Act No. 43 of 1950 (as amended), a party is entitled to invoke the writ jurisdiction of this Court by way of an application seeking for a mandate in the nature of a writ of certiorari to challenge and quash an award granted at such arbitration upon the repudiation of the award. The said provisions are as follows:

Section 31 DDDDD (1):

"Where an application is preferred by an employer to the Court of Appeal, for the issue of an order in the nature of a writ, against an award made by an arbitrator under section 17(1) or by an industrial court under section 24, the Court of Appeal shall entertain such application upon furnishing a security by such employer, in cash to the Commissioner General, where such award which is subject to such application directs the payment of a sum of money to the worker, of an amount equal to such sum.”

Accordingly, to pursue relief prayed for in the instant application, the petitioner has now repudiated the impugned award via the documents marked as P-13(b) and P-13(c) following the procedure established under the Industrial Disputes Act/ No. 43 of 1950 (as amended).

It is submitted that the 2nd respondent had accepted and acknowledged the cheque [P- 13(c)] by his communication dated 09.03.2023 and proceeded to publish the said repudiation in the Extraordinary Gazette Notification bearing No. 2326 / 14 dated 03.04.2023 pursuant to the provisions under section 20(2)(b) of the Industrial Disputes Act (as amended).

The background of the instant application is set out briefly as follows:

The 4th respondent joined the petitioner corporation on 17.06.1991 as 'Temporary Labourer' and he was made permanent in the post of 'Grade V Labourer' on 13.07.1994. Subsequently, he was appointed to the post of 'Grade II Library Attendant' and thereafter, he was appointed as 'Grade I Library Attendant'. During his tenure as a 'Grade I Library Attendant', he was assigned with the additional tasks of 'Garden Supervisor’ via letter dated 23.092010 (P-18). He was later vested with the cover-up acting duties of the ‘Garden Supervisor’ and was also assigned duties of supervision over building maintenance on 01-03.2011(P-19). On 18.02.2013 he was made permanent in the post of 'Garden Supervisor’ at the board meeting No. 2013/03 and he was thereafter purportedly appointed as 'Garden Controller' at the board meeting No. 2013/04 held on 13.03.2013 (P-22). The 4th respondent had retired from service at the petitioner corporation on 10.12.2022 upon reaching the retirement age of 60 years (P-26).

An initial complaint was made to the Colombo Central Assistant Labour Commissioner on 17.08.2017 by the 4^th respondent (several years later from the alleged decision, i.e. not placing him on a particular salary scale). An inquiry was conducted inter parte on 28.022018 upon the same and no amicable settlement was reached. As a result, it was then referred to the Industrial Relations Division. A written statement (P-3) was submitted for and on behalf of the petitioner, yet no settlement was arrived at. Consequently, the matter was referred to Compulsory Arbitration by the predecessor of the 1st res