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 Writs of Certiorari and Mandamus under and in terms of Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Court of Appeal Case No.

CA/WRT/0335/2020 Chaminda Mihindu Kulasuriya, No. 274/25A, Chandana Uyana, Parakumdeniya, Imbulgoda. Petitioner Vs

1. Dr. Nadeera Rupasinghe Director General of Archives, Department of National Archives, No.07, Philip Gunawardena Mawatha, Colombo 07.

2. R.M. Roshani S. Thilakarathne Assistant Director (Administration), Department of National Archives, No. 07, Philip Gunawardena Mawatha, Colombo 07.

3. U.G.P. Kumarasiri Internal Auditor, Department of National Archives, No. 07, Philip Gunawardena Mawatha, Colombo 07.

Respondents Before: M. T. MOHAMMED LAFFAR, J.

Counsel: Kanishka Witharana with Ms. Sawani Rajakaruna, instructed by H. M. Thilakarathna for the Petitioner.

Ms. Narodi De Zoysa, SC for the Respondents.

Supported on: 26.06.2023 Written Submissions on: 22.09.2023 by the Petitioner

28.08.2023 by the Respondent Decided on: 27.10.2023 MOHAMMED LAFFAR, J.

The Petitioner is seeking, inter alia, a Writ of Certiorari quashing the decision of the Respondents contained in P25 and P27 whereby the increments earned by the Petitioner were suspended. The Petitioner alleges that the said decision to suspend his increments had been taken without holding an inquiry, violating the principles of natural justice, and therefore, the decision is mala fide, unlawful, capricious and arbitrary.

I heard the learned Counsel for the Petitioner in support of this application. I heard the learned State Counsel for the Respondents as well.

Admittedly, the Petitioner has already invoked the Fundamental Rights jurisdiction of the Supreme Court in Application bearing No. SCFR 235/21 in respect of the identical reliefs as prayed for in the instant Writ Application, which is yet to be decided by the Supreme Court. At this juncture, a question arises whether the Petitioner can maintain the instant Writ Application before this Court when he has already exhausted an alternative remedy as provided in the Constitution.

Prerogative Writs are discretionary remedies, and therefore, the Petitioner is not entitled to invoke the Writ jurisdiction of this Court when there is an alternative remedy available to him. In Linus Silva Vs. The University Council of the Vidyodaya University1, it was observed that “the remedy by way of certiorari is not available where an alternative remedy is open to the petitioner is subject to the limitation that the alternative remedy must be an adequate remedy.”

The Court of Appeal in Tennakoon Vs. The Director-General of Customs2 held that “the petitioner has an alternate remedy, as the Customs Ordinance itself provides for such a course of action under section 154. In the circumstances, the petitioner is not entitled to invoke writ jurisdiction.”

It is to be noted that the alternative remedy is, always, not a bar to invoke the Writ jurisdiction of this Court. If the Court is of the view that the alternative remedy is inadequate, where there has been a violation of the principle of Natural Justice, where the impugned order is without jurisdiction and there are errors on the face of the record, the Petitioner is permitted to invoke the Writ jurisdiction before exhausting the alternative remedies provided in law. In the case of Somasunderam Vanniasingham Vs. Forbes and others3 the Supreme Court observed that;

“A party to an arbitration award under the Industrial Disputes Act is not required to exhaust other available remedies before he could challenge illegalities and errors on the face of the record by an application for a writ of certiorari. This is so even though he had the right to repudiate

1

64 NLR 104.

2

2004 (1SLR) 53. 1993 (2SLR) 362.

the award under section 20 (1) of the Industrial Disputes Act. A settlement order should not itself be hastily regarded as