M.N.Shukla - (1.) THE petitioner ' was at the relevant time employed as Manager in the Palace THEatre, Allahabad. His services were terminated by an order dated 3-8-1984 (Annexure 1 to the writ petition) passed by the Managing Partner of the THEatre. Aggrieved by the same the petitioner has filed this writ petition.
(2.) THE contention of the petitioner is that the above order is hit by the provisions of Section 73 of the Employees State Insurance Act, 1948. THE section reads : "Employer not to dismiss or punish employee during period of sickness, etc. .(1) No employer shall dismiss, discharge or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit, nor shall he, except as provided under the regulations, dismiss, discharge or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as a result of illness duly certified in accordance with the regulations to arise Out of the pregnancy or confinement rendering the employee unfit for work. (2) No notice of dismissal or discharge or reduction given to an employee during the period specified in sub-section (1) shall be valid or operative." In a nutshell the argument is that the impugned order was passed during the period that the petitioner's illness subsisted, that no such dismissal could validly take place. Hence the order was vitiated. Since we are of the opinion that this writ petition is not maintainable, it is not necessary for us to enter into the merits of this argument or the factual aspects of the case. Assuming the allegations made in the writ petition to be correct, we are not satisfied that the petitioner would be justified in invoking the benefit of Article 226 of the Constitution on these facts. It is trite that under the aforesaid provision the High Court has power to issue "to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs........for the enforcement of any of the fundamental rights and for any other purpose". The power of issuing writs or directions is, therefore, confined with respect to any person or authority, including in appropriate cases any Government. Learned counsel for the petitioner has vehemently urged that the action of the respondent amounted to a violation of the statutory duties or obligations cast upon the respondent. We are unable to accede to this submission. No provision of law has been shown to us which may demonstrate that the dismissal of the petitioner entails the violation of any statutory duties or obligations. However, even the action involving such violation is not material for the purpose of answering the preliminary objection which arises in the case because what has to be examined is : whether such violation or default etc. has been made by an authority which is contemplated by the provisions of Article 226 of the Constitution. It is manifest that the relationship between the petitioner and the respondent, namely, the Palace Theatre was founded on a purely private contract between the parties. Such contractual relationship does not fall within the ambit of such action as may be attributed to an 'authority' within the meaning of the provisions of the Constitution already averted to. The Palace Theatre, Allahabad is neither an executive nor a quasi-judicial authority, and, therefore, it will be wholly erroneous to attribute to a legal status which could satisfy the requirements of Article 226 of the Constitution and make a petition under those provisions maintainable in the High Court. If the argument advanced by the petitioner be accepted and carried to its logical conclusion, it would lead to very anomalous results and even a domestic servant dismissed by his private employer may choose to invoke the benefit of Article 226 of the Constitution.
(3.) WE must, however, hasten to add that to exclude the present writ petition from the scope of Article 226 does not imply either directly or indirectly a rejection of the petitioner's case on merits. Law, although ultimately and substantially the mouthpiece of justice, is nevertheless not wholly untrammelled by technical rules, both of procedure and jurisdiction which in their turn emanate from the practical and imperative necessity of determining the appropriate forum for the redress of distinct kinds of grievances which may be remedied under the law. Merely because a relief may be denied to a petitioner who approaches the High Court under Article 226, it does not follow either that his case is devoid of merits or that he is left without a remedy. A misconception seems to have gained ground that since in a welfare State it is the Government which is the ultimate custodian of the legal rights of citizens, if an aggrieved petitioner cannot succesfully invoke Article 226 of the Constitution, his case stands condemned on merits. Such misconception cannot be given the seal of judicial approval. Since the very inception of the writ law in this county some well-defined preliminary requirements and conditions have been judicially recognised. The 'locus standi' of the person invoking the aid of the High Court, the nature of the relief sought, the nature of the rights involved, the form under which the relief can be clothed, the authority against which the relief is sought-these are all vital matters which have to be carefully examined before a writ can be issued under Article 226 of the Constitution Allied with the same is the important consideration whether an equally efficacious alternative remedy is available to the petitioner. These are germane considerations on which the High Court acting under Article 226 may refuse relief even in a case which is not bereft of merit.;