IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for a Writ of Certiorari under Article 140 of the Constitution of Sri Lanka.

Original Apparel (Private) Limited No.242, Galkade Junction, Welmilla, Aluthgama, Bandaragama.

PETITIONER C.A. (Writ) Application No. 158/22 Vs.

1. Commissioner General of Labour Labour Secretariat No. 41, Kirula Road, Colombo 05.

2. Assistant Commissioner of Labour (Kandy South), District Labour OfÏcer (Kandy South), No. 111, Yatinuwara Street, Kandy.

3. Kodithuwakku Arachchige Asoka Ariyathilake, “Pramod”, Balagolla Road, Adikarigama.

4. Giorgio Morandi (Private Limited)

No. 264, Grandpass Road, Colombo 14.

RESPONDENTS Before : Sobhitha Rajakaruna, J.

Dhammika Ganepola, J.

Counsel : Sanjeewa Ranaweera for the Petitioner.

Shiloma David S.C for the 1^st and 2^nd Respondents.

Ravindranath Dabare with Hansanie Imalka for the 4^th Respondent.

Supported On : 21.02.2023 Written Submission : Petitioner : 08.05.2023 tendered On 1^st and 2^nd Respondents : 28.04.2023 Decided On : 10.08.2023 Dhammika Ganepola, J.

The Petitioner in this application seeks a mandate in the nature of Writ of Certiorari quashing the decision requiring the Petitioner to pay gratuity to the 3rd Respondent on the premise that the 3rd Respondent had been employed by the Petitioner.

Factual Matrix The apparel manufacturing facility owned by the 4^th Respondent has been taken on lease by the Petitioner for a period of five years commencing from 01 May 2016 by the Transaction Agreement marked P2. By the said agreement P2, the Petitioner has agreed to employ 118 employees of the 4th Respondent Company whose names are reflected in Schedule 4 to the Agreement P2 on fresh contracts of employment with effect from 01 May 2016. It has been further agreed to settle all statutory dues in respect of the employees listed in Schedule 4 of the P2 by the 4^th Respondent.

The Petitioner states that the 3rd Respondent was employed by the 4th Respondent as a Maintenance Supervisor with effect from 14 October 2013 and resigned from the 4th Respondent on 30 April 2016. The 3^rd Respondent who resigned from the 4^th Respondent Company was employed by the Petitioner under a series of fixed-term contracts marked P5(a) to P5(d) from 02 May 2016 until 16 April 2020 from time to time.

Subsequently, upon a complaint made by the 3^rd Respondent to the 2^nd Respondent in respect of non-payment of gratuity by the Petitioner, an inquiry had been held and the Petitioner was informed to pay Rs.122,850/- as gratuity including the surcharge on the basis that the 3^rd Respondent had been employed by the Petitioner from 14 October 2013 to 16 April 2020 by the letter dated 20 December 2021 marked P7 and its annexure P8.

The Petitioner contends that the Petitioner Company came into existence only on 24 July 2015. Hence the 3^rd Respondent cannot be considered to have been employed by the Pe October 2013. Further, as submitted by the Petitioner, since the 3rd Respondent was not an employee of the 4th Respondent Company at the time of the execution of the said Agreement P2 on 01 May 2016, his name was not included in the list of employees set out in Schedule 4 of the P2. On the said circumstances the Petitioner submits that the decision to pay gratuity to the 3rd Respondent on the premise that the 3^rd Respondent had been employed by the Pe October 2013 to 16 April 2020 is unfair, illegal, irrational, and unreasonable.

Liability for Payment of Gratuity In terms of the document marked P8 gratuity has been calculated by the 2^nd Respondent on the basis that the 3rd Respondent has joined the service of the Petitioner on 14 October 2013 and the date of departure as on 16 April 2020. As per the Certificate of Incorporation marked P1, the Petitioner Company has been incorporated as a private company on 24 July 2015. As per the documents marked P5(a) to P5(d) it is evident that the 3^rd Respondent has been employed by the Petitioner C