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

Seylan Bank PLC

90, CA(Writ) Application 246/19 Galle Road, Colombo 3.

Petitioner Vs.

1. Commissioner General of Labour

7^th Floor Labour Secretariat, Colombo 5.

2. A. K. P. Sumith Amarasiri No 742 B, Rukman Road, Samagi Mawatha, No 1, Kottawa, Pannipitiya.

Respondents Before : Dhammika Ganepola, J.

Counsel : Dr. Romesh de Silva P. C. with Sugath Caldera, Niran Anketell and Wasantha Kumar Niles for the Petitioner.

Manohara Jayasinghe, D.S.G. for the 1^st Respondent.

Argued On : 26.06.2024, 02.09.2024 Written Submissions : Petitioner : 16.10.2024 tendered On 1^st Respondent : 25.11.2024 Decided On : 29.11.2024 Dhammika Ganepola, J.

Position of the Petitioner The Petitioner in this application seeks a Writ in the nature of a Writ of Certiorari to quash the decision of the 1^st Respondent contained in the document marked X6 to the Petition. The 2^nd Respondent was an employee of the Petitioner bank who was employed under the letter of appointment marked X1. As per Clause 13 of the said letter of appointment, the age of retirement of the 2^nd Respondent was 55 years of age. The Petitioner states that as per the Circular bearing no. SCL 2008/043 dated 19^th September 2008 [X2] issued by the founder Chairman of the Petitioner bank, the age of retirement of all categories had been extended to 58 years of age without consulting the 2^nd Respondent, any other employee of the Petitioner bank or the relevant trade unions.

However, following the crisis faced by the Petitioner Bank, commonly referred to as the ‘Golden Key’ crisis, the Board of the Petitioner Bank issued another Circular, No. SCL2009/003 dated 19 March 2009[X3], which amended the retirement age to 55 years and introduced an evaluation criterion to grant limited extensions up to age of 57 and 60 years. Accordingly, the Petitioner states that the 2^nd Respondent ceased to be an employee of the Petitioner Bank reaching the age of 55 years but was granted an extension of two years from 29^th May 2013 to 28^th May 2015 up to 57 years. However, the Petitioner made an application to the Termination of Employment Branch of the Department of Labour on the basis that his services were terminated by the Petitioner Bank. After an inquiry held by the 1^st Respondent, by the Order dated 10^th December 2018 [X6], the Petitioner had been asked to pay back wages. The Petitioner pleads that the said Order X6 is ultra vires, unreasonable, and is in breach of the legitimate expectation of the Petitioner in view of the reasons set out in the Petition.

Position of the 1^st Respondent The 1^st Respondent states that it was revealed at the inquiry before him that the Employee’s trade union had made representation to the Petitioner Bank and pursuant to the discussion between employees and the Chairman of the Petitioner, Bank Circular No. SCL 2008/043 had been issued extending the age of retirement to 58 years. The Circular No. SCL 2009/003 had been issued unilaterally without the employees’ consent. The 1st Respondent’s position is that the age of retirement is determined by the letter of appointment and mutually revised by Circular No. SCL 2008/043. Therefore, this age of retirement cannot be unilaterally changed by the issuance of Circular No. SCL 2009/003. Consequently, it is claimed that the 2^nd Respondent does not cease to be an employee of the Petitioner Bank upon reaching the age of 55 years. Hence, the decision of the Petitioner bank to send the 2^nd Respondent on retirement at the age of 57 years was made without consensus ad idem and amounted to a termination of employment.

Position of the 2^nd Respondent The 2^nd Respondent asserts that Circular No. SCL 2001/10 dated 13^th March 2001[X4] expressly amended the age of retirement indicated in Clause 13 of the letter of appointment[X1] allowing the employees t