IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application under Article 140 of the Constitution for a mandates in the nature of a Writ of Certiorari and/or Prohibition.

National Institute of Business Management, No. 120/5, Wijerama Mawatha, Colombo 07.

PETITIONER Vs.

Court of Appeal Case No:

CA/WRIT/74/2024

1. Commissioner General of Labour, Labour Department, Colombo 05.

2. J.L.P. Fernando, Former Deputy Director Management Development, National Institute of Business Management, No. 6/9, Malwatta Cross Lane, Dehiwala.

Presently at No. 115, Supem Uyana, Gonapinuwala.

3. R.S. Ariyapperuma, No. 03, Araliya Mawatha, Sirimal Uyana, Ratmalana.

4. Hon. Attorney General, Attorney General’s Department, Colombo 12.

RESPONDENTS Before: S.U.B. Karalliyadde, J Mayadunne Corea, J Counsel: Priyantha Alagiyawanna with Heshani Gunarathne and Tharushi Weerasekara instructed by Dhammika Jinimige for the Petitioner.

K. Dilantha Sampath, S.C. for the 1^st and 4^th Respondents.

S anath Weerasinghe with Shiromi Wanasinghe for the 2^nd Respondent.

Supported on: 15.10.2024 Decided on: 29.11.2024 Mayadunne Corea J The Petitioner to this Application has sought among other things for the following reliefs;

“(d) Issue a mandate in the nature of a Writ of Certiorari quashing the said award dated 23^rd October 2023 marked “P18”;

(e) Issue a mandate in the nature of a Writ of Prohibition restraining the 1^st and 2^nd Respondents or any one acting under them from acting upon the said Award dated

23^rd October 2023 marked “P18”.”

The facts briefly are as follows. The 2^nd Respondent was an employee of the Petitioner. The 2^nd Respondent’s employment had commenced prior to the issuance of the Management Circular No. 30 of 2009. By the said Circular the Petitioner had affected its management structure. It was contended that the Petitioner has in accordance with Management Circular No. 30 of 2006 and Circular No. 30 of 2009, re-constructed its positions, salaries and the organization structures and created designations and salaries were amended accordingly. With the reconstruction a position called Head of Management Development was created and the Petitioner had called for Applications to fill the said position. The 2^nd Respondent who had been employed in the Petitioner Institution from

2001 had not applied for the said position.

The 2^nd Respondent subsequently received several promotions, and prior to the restructuring, he was serving as the Deputy Director Management. The 2^nd Respondent on several occasions complained to the Department of Labour about the purported injustice caused to the 2^nd Respondent pursuant to the restructuring and the creation of new designations. The 2^nd Respondent had complained to the Labour Officer who had dismissed the complaint after inquiry on the ground of not having any merit in the said complaint.

However, as the dispute continued between the parties, the 2^nd Respondent had requested for another inquiry after the initial inquiry conducted by the Department that determined that there was no injustice caused to the 2^nd Respondent. Thus, the Minister of Labour by an Order made under Section 4(1) of the Industrial Disputes Act as amended by the Industrial Disputes (Special Provisions) Act, No. 37 of 1968, (referred to as “IDA” herein after) decided that an industrial dispute exists between the Petitioner and the 2^nd Respondent and appointed the 3^rd Respondent as the arbitrator.

The 3^rd Respondent at the conclusion of the industrial arbitration on 23^rd October 2023 made an award determining that the 2^nd Respondent should have been promoted with effect from 20^th February 2013 as the Head of the Department and as a Director with effect from 15^th July 2015 and further, the Petitioner must pay the 2^nd Respondent a sum of Rs. 9,261,444/-. The Petitioner states that the said award is arbitrary, unjust and against the material placed before the arbitrator. Hence, this Application.

The Respondents Objections The learned St