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Allahabad High Court · body

1984 DIGILAW 667 (ALL)

S. M. Kamal v. Palace Theatre

1984-08-30

B.D.AGARWAL, M.N.SHUKLA

body1984
JUDGMENT M.N. Shukla, J. 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. 3. The power of issuing writs or directions is, therefore, confined with respect to any person or authority, including in appropriate cases any Government. 3. 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. 4. 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. 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 successfully 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. 5. Applying the above criteria to the facts of the instant case we are constrained to observe that the applicability of Article 226 is ruled out on the ground, as we have already observed, that the impugned action cannot be attributed to any authority or 'person' or instrumentality of the State Government etc. which is a condition precedent to giving relief under that provision. It is true that the language of Article 226 is very wide but it is well settled that the words 'any person' and 'for any other purpose' are not to be construed literally. which is a condition precedent to giving relief under that provision. It is true that the language of Article 226 is very wide but it is well settled that the words 'any person' and 'for any other purpose' are not to be construed literally. In this context reliance is often placed upon a catena of cases in which it has been observed that the powers of the Court under Article 226 are not limited to issuing prerogative writs. The Court can issue any appropriate order or direction. Notwithstanding this, however, the fact remains that if the order actually passed in each of those cases is examined it would be found that a writ of mandamus directing the authority to forbear from enforcing the impugned order, clearly lay on the facts of each one of them. That is why H. M. Seervai aptly concludes the discussion on this point by commenting on the ratio of those authorities in the following words -Constitutional Law of India by H. M. Seervai, Volume 2, page 816-817, Second Edition. "........the observations in the above cases do not displace the position stated earlier, namely, that the writs, orders and directions are not available against 'any person' or 'for any purpose' but are available against 'any person to whom', and for 'any purpose for which' the various writs there mentioned can be issued according to well' settled rules governing the issue of such writs". To take a contrary view would be not only excessively enlarging the scope of Article 226 but actually replacing the jurisdiction of ordinary courts by the writ jurisdiction of the High Courts. In re Gadea Nagabhushana Reddi, AIR 1951 Madras 249, the petitioner asked for a writ of prohibition against the Election Committee of the All India Congress Committee and several other committees and officers thereof. The writ was dismissed as not maintainable under Article 226 of the Constitution. Rajamannar, C. J. made a withering attack on the wide proposition submitted by the learned counsel for the petitioner and observed : "In answer to a question from us he was compelled to confess that the logical result of the construction sought to be placed by him on the language of the "Article would be to enable any person aggrieved to obtain a relief by an application under this Article. Take, for instance, the case of money due under a promissory note to the payee of the note. Ordinarily, the only remedy available for the creditor to recover the money due to him is by way of a suit in the appropriate Court. But, as the language of the Article 226 (1) is very wide and refers to the issue of directions to any person for any purpose, logically the creditor instead of filing a suit can straightway approach this Court for a direction to the debtor to pay him the money. As the only limitation contained in Art. 226 is that the power is confined to the territories in relation to which this court exercises jurisdiction, presumably any person in the State of Madras can approach this Court under Art. 226 for directing against any other person in this State for any purpose. The construction of Art. 226 would practically a bregate the entire judicial system and the machinery set up for the administration of justice in the State. We do not think that the Art. 226 should be construed in this manner in spite of the wide language on which the counsel relied." In Indian Tobacco Corporation v. State of Madras, AIR 1954 Madras 549 the petitioners asked for a mandamus restraining the respondent from committing an alleged anticipatory breach of contract. The writ was dismissed with the observation that it was misconceived. Commenting on the scope of Article 226 the Bench stated the legal position thus : "But we have no hesitation in holding that it is not an unlimited power. In our opinion the words "to any person" means "to any person to whom according to well-established principles writs like those mentioned in the article would lie", and the words "any other purpose" must be read in the context in antithesis to the words "for the enforcement of any of the rights conferred by Part HI". Obviously, writs like 'Habeas Corpus', 'mandamus' and 'certiorari' could be issued not only for the enforcement of any of the fundamental rights, but also for the enforcement of other legal rights, subject however to conditions well established. To give an instance, the writ of probibition has always been understood as a writ which could issue only to a judicial or quasi-judicial tribunal or an inferior court. To give an instance, the writ of probibition has always been understood as a writ which could issue only to a judicial or quasi-judicial tribunal or an inferior court. Surely, it cannot be said that now under Art. 226 a writ in the nature of prohibition could issue even to a private person prohibiting him from doing some act which is likely to injure an applicant." In the same case the following observations made by Mitter. J. in Carlsbad Mineral Water Manufacturing Co. Ltd. v. H. M. Jagtiani, AIR 1952 Calcutta 315 were quoted with approval: "At first sight it would appear that the language used in Art. 226 imposes no limits whatsoever as to the category of persons to whom, and the purpose for which., orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them may be issued by the High Court. But once the origin and history of the High Prerogative writs are remembered, it is clear, are to be exercised in accordance with the principles which governed the said writs. The power of the High Court to issue such a writ 'to any person' can only mean the power to issue such a writ to any person to whom, according to well established principles, a writ lay. That writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words "and for any other purpose" must mean "for any other purpose for which any of the writs mentioned would, according to well established principles issue." 6. Applying the test of an efficacious alternative remedy also we find that the present writ petition is not maintainable under Article 226 of the Constitution. There is no reason why the petitioner should not be able to seek his remedy under the provisions of the Employees' State Insurance Act, 1948 or by filing a civil suit. It was contended on behalf of the petitioner that there was a bar to the remedy available by means of a civil suit inasmuch as Section 75 (3) of the aforesaid Act ousted the jurisdiction of the civil court. It was contended on behalf of the petitioner that there was a bar to the remedy available by means of a civil suit inasmuch as Section 75 (3) of the aforesaid Act ousted the jurisdiction of the civil court. That section provides :- "(3) No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act to be decided by a medical board, or by a medical Appeal Tribunal or by the Employees' Insurance Court." The above provision indicates that the jurisdiction of the civil court is excluded only where a dispute is justiciable, inter alia, by the Employees' Insurance Court. The second limb of the argument, therefore, was that the present dispute was not of such a nature as may be cognizable by the Employees' Insurance Court. We are unable to accept this submission. Sub sections (1) and (2) of Section 73 of the Employees' State insurance Act deal with matters which may be decided by the Employees Insurance Court.. Clause (g) of sub-section (1) of Section 75 is in the following terms : (g) any other matter which is in dispute between a principal employer and the Corporation or employer, or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, or any other matter required to be or which may be decided by the Employees' Insurance Court under this Act, such question or dispute subject to the provisions of sub-section (2-A) shall be decided by the Employees' Insurance Court in accordance with the provisions of "this Act." The present dispute in which the petitioner has challenged the order of dismissal relating to him is obviously a dispute between an employee and his immediate employer. There is, however, another snag which was suggested by the learned counsel for the petitioner. Note submitted that the grievance with regard to the dismissal of the petitioner from service was not a grievance relating to a 'benefit' within the meaning of the term as used in clause (g) of sub-section (1) of Section 75. To us it appears that such crucial question as the dismissal of an employee is surely the denial of a major benefit to him. To us it appears that such crucial question as the dismissal of an employee is surely the denial of a major benefit to him. It is in fact, a special benefit which has been conferred by the provisions of the Employees State Insurance Act. The fact, that during the illness of an employee an order of dismissal or termination cannot be passed is on the face of it is in the nature of a special and paramount benefit; it is a creature of this statute. Consequently, in the event of denial of such benefit, which has been occasioned by the dismissal of the petitioner, his grievance for which remedy is prescribed by Section 75 (1) itself may be mitigated by approaching the Employees' Insurance Court. Hence, even though a suit may be barred, relief under the Employees' State Insurance Act can be availed of. This is, therefore, another reason why this writ petition should not be entertained and the petitioner should be relegated to the remedy prescribed by the Employees' State Insurance Act. 7. Learned counsel for the petitioner further contended that the petitioner claim fells quarely within the ambit of public interest litigation. Hi strenuously urged that considering the peculiar frame- work of the dispute which has been raised by the petitioner in this writ petition, even though it may have the semblance of a private dispute between two parties born out of contractual relationship, yet in its essence and according to the liberal interpretation recently placed on the amplitude of Article 226 of the Constitution, it is appropriate that the High Court should deal with it in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution. Learned counsel for the petitioner particularly placed reliance on certain observations of the Supreme Court in the case of People's Union for Democratic Rights v. Union of India, AIR 1982 SO 1473. The controversy in that case arose out of a momentous event in the shape of Asian Games which were hosted by the Government of India recently. Considering the immensity of the project, a huge quantity of construction work was entrusted by the Government of India to various authorities such as the Delhi Administration, the Delhi Development Authority and the New Delhi Municipal Committee. These various authorities in their turn engaged contractors who were registered as principal employers. Considering the immensity of the project, a huge quantity of construction work was entrusted by the Government of India to various authorities such as the Delhi Administration, the Delhi Development Authority and the New Delhi Municipal Committee. These various authorities in their turn engaged contractors who were registered as principal employers. The contractors in their turn for the purpose of carrying out the construction work engaged workers through jamadars. The workers raised the grievance that they were not paid minimum wages and were exploited by the contractors and jamadars. One of the objections raised in that case was that no writ could lie against the respondents because the workman whose rights were said to have been violated were employees of the contractors and not employees of the other respondents. The objection was overruled. There are two important grounds on which that case is clearly distinguishable. Firstly, that was a case to which the doctrine of 'public interest' litigation fully applied. A dispute may acquire extraordinary complexity or dimension by virtue of the fact that its subject matter may be some problem which is sought to be focussed in a representative capacity. But a purely personal dispute which arises out of the breach of contract between two parties cannot be equated with public interest litigation as such. In case the dividing line between the two types of disputes or litigation is allowed to be blurred or completely disappears, the exercise of writ jurisdiction under Articles 32 and 226 of the Constitution would become an example of 'reductio ad absurdum'. Such construction of writ jurisdiction would in the telling words of Rajamannar CJ. "practically abrogate the entire judicial system and the machinery set up for the administration of justice in the State." In re- Gadea Magabhushana Reddi, AIR 1951 Madras 249. Therefore, even while accepting as a concomitent of the progressive ideologies of the current times it would not be in appropriate to sound a note of warning that the contents of public interest litigation should not be confused with controversies which are predominantly in the nature of private disputes. Sometimes excessive exuberance for a cause tends to damage it substantially and at present the danger seems to be that public interest litigation may be overemphasised so as to efface the clear pointers and contours which have been established by a long process of legal though and experience. Sometimes excessive exuberance for a cause tends to damage it substantially and at present the danger seems to be that public interest litigation may be overemphasised so as to efface the clear pointers and contours which have been established by a long process of legal though and experience. Categories have their own utility and demolishing them altogether may lead to confused jurisprudence. It is only where the stakes are exceptionally high, where the consequences of the dispute would be far embracing or very largely spread that the label of public interest litigation can be applied to a case. We are unable to comprehend as to how a dispute between the petitioner and the respondent relating to bis dismissal from service as a Manager can by any amount of legal sophistry be treated on par with public interest litigation. Secondly, in the case of People's Union for Democratic Rights and others (supra) ultimately the primary responsibility rested on the Union of India, the Delhi Administration and the Delhi Development Authority which authorities in their turn and as a matter of practical convenience had entrusted the execution of the project to more than one instrumentality. This essential feature of the dispute involved in that case was highlighted in paragraph 10 of the Reports : "It is true that the workmen whose cause has been championed by the petitioners are employees of the contractors but the Union of India, the Delhi Administration and the Delhi Development Authority which have entrusted the construction work of Asiad Projects to the contractors cannot escape their obligation for observance of the various labour laws by the contractors." Thus, the nature and amplitude of the controversy which gave rise to the case of People's Union for Democratic Rights (supra) were radically different from the restricted limit and purely private nature of the dispute involved in the present writ petition. It would not be proper to allow such domestic or private dispute to spill over into the domain of public interest litigation which is a new concept and registers an exception to the conventional pattern and vicissitudes of litigation. 8. From the facts of the instant case it is manifest that the petitioner can fall back upon the remedy available to him under the Employees' State Insurance Act, even if it be assumed that a civil suit would not lie. 8. From the facts of the instant case it is manifest that the petitioner can fall back upon the remedy available to him under the Employees' State Insurance Act, even if it be assumed that a civil suit would not lie. Hence, it is not a fit case in which a writ of certiorari may be issued for quashing the impugned order nor can a writ of mandamus be granted for the enforcement of a contractual obligation for which there is a remedy by an action of law in the ordinary courts. The petitioner has prayed for a writ of mandamus commanding the respondent not to interfere with his functioning as Manager of the Palace Theatre. No mandamus can be issued for a private purpose, that is to say for enforcement of a mere private right. We are, therefore, of the opinion that this petition under Article 226 of the Constitution is entirely misconceived. It is accordingly dismissed in limine. No order, however, is made as to costs. Petition dismissed.