- (1.) A dismissed employee of the second respondent has challenged the order of his dismissal from service in this writ petition.
(2.) Learned Senior Advocate for the respondents questions the maintainability of the writ petition. He contends that, the second writ petitioner is not an authority within the meaning of Article 12 of the Constitution of India and, therefore, Article 226 is not available to impugn any action of the second respondent. In support of such contention he relies upon (Bhabani Adhikari v. West Bengal State Cooperative Bank Limited & Ors,2009 1 CalHN 573), (S.S. Rana v. Registrar, Co-operative Societies & Anr, 2006 11 SCC 634), (Supriyo Basu & Ors. v. W.B. Housing Board & Ors, 2005 6 SCC 289) and (Thalappalam Service Cooperative Bank Limited & Ors. v. State of Kerala & Ors, 2013 16 SCC 82). He contends that, in terms of Bhabani Adhikari the writ petitioner has to assert a breach of a statutory provision by the second respondent to pass the threshold of maintainability of the writ petitioner. The merits may be considered later and only if the writ petitioner passes such threshold.
(3.) Bhabani Adhikari concerns an employee of the respondent. Such employee was dismissed from service by the second respondent. Such employee had filed a petition under Section 226 of the Constitution of India challenging the order of dismissal. A petition was filed questioning the maintainability of the writ petition. It has been held that, notwithstanding a person not answering the description of a "State" or "other authority" within the meaning of Article 12 of the Constitution of India by virtue of its composition or by dint of the nature of duties and functions that it discharges, a writ may be issued against it, if a violation of a statutory rule in relation to the employment is made the basis of a petition under Article 226 of the Constitution of India. It has also been held that, if there is a breach of a statutory duty which is made the foundation of a writ petition against an employer which is not otherwise amenable to the writ jurisdiction then the writ petition would be entertained and it has to be assessed on merits as to whether there is no breach or not. The distinction between an action not being maintainable and an action which is liable to be dismissed has been stated. It states that, when an action is not maintainable, the Court cannot assume jurisdiction and that when an action is liable to be dismissed the Court has to adjudicate on merits, whatever may be the degree, to arrive at a conclusion.;