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Judgment
R.K. Mahajan, J.—This is a second appeal filed by the Appellant against the judgment and decree passed by Shri S. P. Srivastava, XVIth Additional District Judge, Kanpur in Civil Appeal No. 77 of 1982 dismissing the appeal and confirming the judgment and decree dated 29.10.1982 passed by Shri Rajvir Singh, Vth Additional Munsif, Kanpur dismissing the Suit No. 22 of 1980 Brahma Deen Tiwari v. Her Court Butler Institute Society. Admitted facts of this appeal are as follows.
The Appellant was employed as Labourer in the year 1960 and temporary peon by the order of the Director of the Institute in the pay scale of Rs. 275-320. He joined duty on 20.8.1968. He was terminated by giving one month salary by the Director of the Institute on 31.3.1978/1.4.1978. It is also admitted fact that Her Court Butler Institute Society (hereinafter referred to as the Institute) of which the Appellant was a Peon was Government Institute managed by the State Government and the State Government subsequently in the year 1965 by its notification created H.B.T.I. Society which was registered under the Societies Registration Act, 1960. It has its own bye-laws and memorandum of association. Board of Governor. The purpose of the society is to provide technical education. The Technical Education Department of the Government of Uttar Pradesh exercises control over it. It is financed and controlled by the Government of Uttar Pradesh. Chief Minister of Uttar Pradesh and Minister of Technical Education are also Chairman and Vice Chairman respectively of the Board which controls the society. So it is a State funded society. There is a letter of Joint Secretary, Government of U.P. placed on record and another Government Order dated 8th March, 1965. Substance of this Government Order shows that they (employees) will be governed by the terms and conditions of service which were applicable to them immediately before the commencement of the Rules or governed by terms and conditions hereinafter laid down in the bye-laws of the society. They will be governed by the, Temporary Government Servant Rules if no provision is provided in the Rules and bye-laws. In the Government Order dated 8th March, 1965 continuous service of such employees has been taken into account for the purposes of retirement and pensionary benefits, leave and provident fund, etc. If such employees are made permanent, there is also one letter placed on record issued by the Government in the year 1963 regarding the said Institute. It was emphasised that the employees who have a long service on their account are being terminated on pettly fault and it was mentioned that the action should not be arbitrary and stress was made that while terminating services, the length of service, previous record of the Government servant be taken into consideration and they should be terminated in accordance with rules. The application of principle of natural justice cannot be ruled out.
The Plaintiff-Appellant took the matter to the Public Services Tribunal and the petition was dismissed as he was not held as public servant. The Plaintiff-Appellant then filed a suit in the civil court in 1980 describing the termination order dated 31.3.1978/1.4.1978 as null and void and against the principle of natural justice. It has been also described as against the provisions of Article 14 of the Constitution of India.
The Defendant took a plea that the Institute is an authority within Article 12 of the Constitution of India. It was also asserted that the Plaintiff being a temporary employee, he was dismissed in accordance with the Rule and there was no stigma or discrimination attaching to the termination. The appellate court also agreed With the finding of the lower court that the termination is simplicitor and the management had a full right to terminate the services.
Feeling aggrieved the present Second Appeal has been filed. By mistake no question of law has been framed at the time of admission of appeal. At the time of hearing of the appeal, I framed question Nos. 2 and 4 as substantial question of law and which are quoted hereunder:
(ii) Whether a society registered under the Societies Registration Act and wholly financed and controlled by the State Government is a state within the meaning of Article 12 of the Constitution of India?
(iv) Whether the impugned order is impunitive in nature and is hit by Articles 14 and 16 of the Constitution of India?
Learned Counsel for the Appellant submitted that the finding of the lower court is that it is not an instrumentality of the State is vitiated by the Apex Court authorities and definition of Article 12 of the Constitution of India. Taking history of the Institution and funding by the Government and its control exercised by the Ministry of Technical Education, Government of U.P. and the power of the appointment of the Board also vests with the State. It cannot be said that it is not an instrumentality of the State. It certainly acts as the agency of the State. Learned Counsel for the Appellant has relied upon on the following authorities:
Ajai Hasia v. Khalid Muib AIR 1981 SC 487, Paras 11, 12 and 15.
P.K. Ramachandra Iyer and Others Vs. Union of India (UOI) and Others,
Sri Sankarji Singh v. I.E.R.T. 1994 (2) UPLBEC 1003.
Rajani Sharma v. Army School 1995 (3) UPLBEC 1964.
S.S. Verma v. G.M. Elgin Mills 1989 (1) UPLBEC 179.
Considering the State control, financial assistance and the history of the institution as discussed above, It cannot be said that the State is not controlling authority of the institution. Moreover, the institution is still performing the public duties and as such, it has to act fairly in its action. I have already held that it is an instrumentality of the State and in my view, the lower court has taken palpably wrong view. Even otherwise, the societies cannot at sweet will terminate services of the employees. Minimal requirement is this that the principles of natural justice have to be complied with as the Appellant has put in service of 18 years. Merely that he is not confirmed does not mean that the person should be deprived of his livelihood without giving him a fair opportunity. The loss of employment entails right to earn livelihood. It is an important facet of Article 21 of the Constitution of India. Article 14 of Constitution of India postulates that action of State instrumentality has to fall within the parameters of the reasonableness. Even if there were charges which the management has in his mind or there was some foundation of allegation lurking in the mind of management for not keeping the Petitioner in employment, he should have been terminated after adopting fair procedure. The plea of the Respondent that the Appellant was terminated after notice is of no avail. In fact, in my view, the termination order involves element of arbitrariness and stigma and the court can always open veil to adjudge this aspect.
Learned Counsel for the Appellant has also relied upon by way of stigma on following judicial precedence:
Jarnail Singh and Others Vs. State of Punjab and Others,
The Manager, Government Branch Press and Another Vs. D.B. Belliappa,
Anoop Jaiswal Vs. Government of India and Another,
After considering the entire circumstances of the case and the way in which the Institution has been functioning, it would be unfair procedure as well as unfair action to deprive a person of his livelihood who has put in 18 years of service by writing few lines that being a temporary employee, his services are terminated by one month notice without conducting an enquiry. It is certainly against the cannon of principles of natural justice and fairness violating the very spirit of Articles 14 and 21 of the Constitution of India.
I am of the considered view that the decree of the court below cannot be sustained as well as the termination order and the same is null and void and set aside. I set aside the judgment and order dated 29.10.1982 passed by XVIth Additional District Judge, Kanpur and of the trial court, the suit of the Plaintiff-Appellant is decreed with all consequential benefits. The appeal is allowed.