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, Prohibition and Mandamus under and in terms of Article 140 of the Constitution.

C.A. (Writ) Application No.355/2018

1. Distilleries Company of Sri Lanka PLC No.110, Norris Canal Road, Colombo 10.

Petitioner -Vs-

1. K.L.K. Perera Commissioner of Labour Employee’s Provident Fund –

Department of Labour Colombo Central District Labour Office

6^th Floor, No.56, Kirula Road, Narahenpita, Colombo 05.

2. W.M.D.R. Weerakoon Assistant Commissioner of Labour Employee’s Provident Fund –

Department of Labour Colombo Central District Labour Office

6^th Floor, No.56, Kirula Road, Narahenpita, Colombo 05

3. Warnakulasooriya Walter Jayatilake No.210 E, Sandun Mawatha, Minuwangoda Road, Udugampola

4. The Hon. Attorney General Attorney General’s Department Hultsdorp Colombo 12 Respondents Before: C.P. Kirtisinghe – J Mayadunne Corea – J Counsel: S.A. Parathalingam PC with Nishkan Parathalingam for the Petitioner Rajeev Amarasuriya with Malith Pitipanaarachchi and Ravindu Bandara for the 3^rd Respondent Nayomi Kahawita SC for the 1^st and 2^nd Respondents Argued on : 08.10.2021 Decided On : 21.03.2022 C.P. Kirtisinghe – J The Petitioner is seeking for a mandate in the nature of a writ of certiorari which quashes the decision of the 1^st and/or 2^nd Respondents contained in the letter dated 14.03.2018 marked as X6 and in the alternative for a mandate in the nature of a writ of certiorari to quash that part of the decision or determination contained in the aforesaid document marked X6 whereby the 1^st and/or 2^nd Respondents have indicated to the Petitioner that, i. The applicable surcharge would increase up to 50% in the event that the Petitioner fails to make the full payment which the Petitioner has been directed to pay within a period of 12 months from the date of that letter and that ii. Legal proceedings would be initiated against the Petitioner in the event that the Petitioner fails to make the entire payment as directed within a period of 14 days from the receipt of that letter.

The Petitioner Company had recruited the 3^rd Respondent on a contract basis with effect from 03.07.1995 to serve the Petitioner Company as an investigator.

The letter of appointment is marked as X1. The 3^rd Respondent had signed the letter of appointment and accepted it. The Petitioner states that prior to signing the said letter of appointment, the 3^rd Respondent had indicated to the Petitioner that he did not require EPF and ETF payments at the end of his employment, but instead he preferred the said payments to be made directly by the Petitioner to him by way of a proportionate increase in his monthly take home salary. The said letter of appointment expressly provided as follows, “No EPF or ETF benefits will accrue to this appointment”.

According to the Petitioner, by the endorsement placed on the document marked X1a, the 3^rd Respondent’s aforesaid request pertaining to EPF was approved by the Petitioner and the 3^rd Respondent’s monthly take home salary was decided to be proportionately increased by the Petitioner in lieu of making EPF and ETF contributions. The first phase of the 3^rd Respondent’s employment under the Petitioner Company came to an end when the 3^rd Respondent resigned from the service on 31.10.2006 as evidenced by the letter marked X2. Thereafter, the 3^rd Respondent had rejoined the service on 8^th November 2006 as evidenced by the letter of appointment/contract marked X3. In that letter of appointment/contract of employment, there is a clause to the effect that the 3^rd Respondent will be enrolled as a member of the Employees’ Provident Fund to which the 3^rd Respondent will contribute a minimum of 10% of his salary per month and the Petitioner will contribute a sum of 15% from the 3^rd Respondent’s monthly salary. There is another clause to the effect that the Petitioner Company will contribute 3% of the monthly salar