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

Namunukula Plantations PLC No. 310 High Level Road Nawinna Maharagama Petitioner CA (Writ) Application No. 776/2024 Vs

1. Commissioner General of Labour Department of Labour

11^th Floor “Mehewara Piyaasa” Building Colombo 5

2. I. C. Gamage Labour OfÏcer Termination of Employment Unit Department of Labour Colombo 5

3. Happawana Vithanage Sujeeva No.23 Ranpokuna Village Welikala Pokunuwila Respondents Before: Dhammika Ganepola, J.

Damith Thotawatte, J.

Counsel Suren Fernando with Shiloma David for the Petitioner Dilantha Sampath, SC for the 1^st and 2^nd Respondents S. H. A. Mohamed with Pramod Polpitiya for the 03rd Respondent supported 29-01-2025 Written submissions 21-02-2025 By the 1st and 2nd Respondents tendered on: 10-03-2025 By the Petitioner and 3rd Respondent Order Delivered on: 30-04-2025 D. Thotawatte, J.

The petitioner Namunukula Plantations PLC, has filed this petition seeking a writ of Certiorari to quash the order and the decision contained therein of the first respondent Commissioner General of Labour dated 22nd October 2024 (annexed to this petition marked as P13) which was delivered at the conclusion of an inquiry instituted on the complaint of the 3rd Respondent claiming that the Petitioner had constructively terminated her employment.

The Petitioner has also prayed for a writ of Prohibition preventing Respondents taking any further steps to enforce the impugned order by which the Petitioner is directed to pay Rs. 2,462,100/- as compensation.

When this matter was supported on the 29-01-2025 the learned State Counsel appearing for the 1st and the 2nd Respondents took up a preliminary objection regarding the maintainability of this action on the ground that the petitioner has failed to comply with the threshold requirement of Section 10B of the Termination of Employment of Workmen (Special Provisions) Act No 45 of 1971 (hereinafter for the purposes of this order known as the TEW Act) as amended by Act No 23 of 2022.

Section 10 B (3) of the TEW Act state that when an application is made for an order in the nature of a writ, against an order of the Commissioner General of Labour, under the provisions of TEW Act, the Petitioner needs to support the application with a certificate from the Commissioner- General to the effect that the security as specified had been duly furnished.

In response to the aforementioned preliminary objection, the Petitioner, in its written submissions, has advanced three grounds contending that compliance with the provisions of the TEW Act is not required.

1. The Petitioner was not the employer of the 3rd Respondent at the time of the alleged termination and only the relevant provisions of the TEW Act are applicable to the employer. 2. The practical compliance with Section 10B (2), (3), and (4) of the TEW Act is not possible.

3. A constitutional right granted cannot be restricted by the legislature.

1. The Petitioner was not the employer of the 3rd Respondent The above Argument is based on the circumstances under which the 3^rd Respondent's employment came to an end. According to the petition, by 21st of September 2018 the 3rd Respondent was working for the Petitioner as an “Administrative Executive”. A letter dated 21-09-2021 (annexed marked as P6) signed by the General Manager of Richard Pieris & Co. PLC. had been issued to the 3^rd Respondent stating that “they” are prepared to transfer the 3rd Respondent from the Petitioner company to RPC Polymers (Pvt). Ltd. In response to letter P6, the 3rd Respondent has written to GM Richard Pieris & Co. PLC. (letter annexed as P7) requesting the transfer to be differed and allow her to remain with the Petitioner company, as she has never requested a transfer. Although the Petitioner has stated t