Mayadunne Corea J

The facts of the case are briefly as follows, the 1^st Petitioner had a proprietorship business called ‘Ruwan Lanka Ayatenaya’ established on 26.07.1990. Subsequently, on 28.07.2010 it was converted into a partnership called ‘Ruwan Lanka Garments’ with the 2^nd Petitioner who is his son. The 1^st Petitioner’s brother-in-law, Jayalath Padmalal was the CEO. The 1^st Petitioner states that he merely invested his money and that the said Jayalath Padmalal effectively managed the general administration of the business.

The 1^st Petitioner states that the business was not operating viably for the financial years of 2009/2010 and following discussions with his brother-in-law, he had withdrawn from the business with effect from 21^st February 2011. The 1^st Petitioner further states that he closed down the business on 21.02.2011 and informed the Provincial Registrar of Companies about the said closure, following which the Registrar issued a certificate, notifying the removal of Ruwan Lanka Garments from the Register of Business with effect from the above date (P7).

The 1^st Petitioner states that subsequently, from March 2011, his brother-in-law had carried out the business as his own, and paid the salaries of employees for March and April 2011. The 1^st Petitioner further states that his brother-in-law had failed to pay the salaries for the month of May 2011 and had instigated the employees to lodge a false complaint against the 1^st Petitioner. The 5^th to 59^th Respondents to the petition who are the employees of the said business entity are alleging that their services were terminated in contravention of the provisions of the Termination of Employment of Workman (Special Provisions) Act No. 45 of 1971 as amended. The Petitioner states the services of the employees were not terminated but their employment continued under Jayalath Padmalal the brother-in-law of the Petitioner.

The 4^th Respondent conducted an inquiry according to the Act and issued an order. The 1^st Petitioner states that the Commissioner General of Labour is the only officer legally empowered to issue such an order under the Act, thus alleging that no such authority is extended to the Acting Commissioner General of Labour and the Secretary, Minister of Labour and Labour Relations, who are signatories to the order. The Petitioners thereby allege that the order has no legal force and the Respondents are in violation of the provisions of the Act. It is further contended that the 2^nd Petitioner who is the son of the 1^st Petitioner and a partner of Ruwan Lanka Garments, had not been informed of the inquiry but had been served with the order subsequent to the inquiry.

Hence this application for a Writ of Certiorari to quash the said order.

The Petitioner has sought the following reliefs interalia;

o Issue a mandate in the nature of a writ of certiorari to quash the order marked P9, P9a, and P9b dated 27.06.2014.

Petitioner’s complaint to the Court

a) The impugned order is against the accepted norms and principles of rules of natural justice,

b) The impugned order is against the provisions of Termination of Employment of Workman (Special Provisions) Act No. 45 of 1971,

c) The 2^nd Respondent who is the Acting Commissioner of Labour has no legal right to issue the impugned order,

d) The 3^rd Respondent who is the Secretary, of the Ministry of Labour and Labour Relations has no legal right to pronounce the order,

e) No notice was given to the 2^nd Petitioner to appear and defend himself before the 4^th Respondent, thus violating the rules of natural justice,

f) The said order is against the weight of evidence.

The Respondents while denying the allegations raised by the Petitioner, took several preliminary objections to the maintainability of this application. They are as follows;

 The application is misconceived in law,

 The Petitioner’s conduct does not warrant a grant of a discretionary writ,

 The Petitioner has misrepresented facts and failed to disclose material facts to Court,

 The P