IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for orders in the nature of Writs of Certiorari and Prohibition under Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Lanka Canneries (Pvt) Ltd No. 45/75, Narahenpita Road, CA/WRIT/385/2021 Colombo 05.

Petitioner Vs.

1. Commissioner of Labour Labour Secretariat, Department of Labour, No. 41, Kirula Road, Colombo 05, Sri Lanka.

2. D. P. Dhammika Saddhasena Assistant Commissioner of Labour, Department of Labour, Termination of Employment Branch, 11^th Floor, Mehewara Piyasa, Colombo 05.

3. Hewa Waththage Don Srimal Nishantha No. 127/49, Suriyapaluwa, Kadwatha.

Respondents Before : Sobhitha Rajakaruna J.

Dhammika Ganepola J.

Counsel : Neville Abeyratne, PC with K. Abeyratne and Sumudu Samaranayake for the Petitioner.

Madhubhashini Sri Meththa, SC for the 1st and 2nd Respondents.

Ashiq Hassim with S. Fernando for the 3rd Respondent.

Written Submissions: Petitioner -19.07.2022

1st and 2nd Respondents -19.07.2022 3rd Respondent -21.07.2022 Decided on : 31.08.2022 Sobhitha Rajakaruna J.

The Court on 22.02.2022 decided to formally issue notice of this application on the Respondents and thereafter fixed the dates for filling of Statements of objections and counter affidavit. All the parties agreed that the instant application may be dealt with and determined solely on the basis of written submissions.

The 3^rd Respondent joined the Petitioner Company as a Manager-Supply Chain on 08.01.2018. As per the Letter of Appointment, marked ‘P4’, the 3^rd Respondent should serve on probation for a period of 12 months. The Petitioner by letter dated 21.10.2020 (marked ‘P2’), terminated the services of the 3^rd Respondent. The reasons given in the said letter marked ‘P2’ are as follows;

“We refer to your contract of employment dated 8^th January 2018 and regret to inform you that we are unable to confirm your appointment as Manager-Supply Chain of our company. As you are fully aware, you have continued to be on probation as per Clause No. 4(a) of your contract of employment as we have neither confirmed your appointment in writing nor given you a salary increment since 8^th January 2018.”

Being aggrieved by the said decision to terminate the services, the 3^rd Respondent made a complaint, marked ‘P7’, to the Commissioner General of Labour (‘Commissioner’) under the Termination of Employment of Workmen (Special Provisions) Act No. 45 of 1971 (‘TEWA’). The Commissioner after an inquiry issued an order dated 07.07.2021, marked ‘P3’, directing the Petitioner to reinstate the 3^rd Respondent with back wages.

The Petitioner is seeking in this application for a mandate in the nature of a writ of Certiorari to quash the said order of the Commissioner and also for a mandate in the nature of a writ of Prohibition to prohibit the 1^st and 2^nd Respondents from taking any legal actions for recovery of the sum awarded pursuant to the said order ‘P3’.

The Petitioner’s main contention is that a ‘probationer’ does not have a right to be confirmed in his post and the employer is not required to show good cause if he terminates the services of a probationer. The probationary period of the 3^rd Respondent has not been formerly extended by the Petitioner after the expiration of the stipulated period of 12 months. However, the Petitioner argues in view of the provisions of the letter of appointment (Clause 4(i) of ‘P4’) that the 3^rd Respondent will be regarded as continuing in probation if no confirmation letter is issued.

The services of a probationer can be terminated on non-disciplinary grounds, provided that the employer follows a specific procedure and also subject to Section 2(1) of TEWA. __________________________________________ The Petitioner relies on the following judgements in order to substantiate his argument that the employer has a right to terminate the services of the 3^rd Respondent without assigning any reason and also that the said Responden