- (1.) 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. Har Court Butlar Institute Society. Admitted facts of this Appeal are as follows:
(2.) 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 ter minated by giving one month salary by the Director of the Institute on 31-3-1978/1-4-1978. It is also admitted fact that Har Court Butlar Institute Society (hereinafter referred to as the Institute) of which the appellant was a Peon was Government In stitute 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, 1860. It has its own bye-laws and Memorandum of As sociation, Board of Governor. THE purpose of the Society is to provide technical educa tion. THE Technical Education Department of the Government of Uttar Pradesh exer cises control over it. It is financed and con trolled 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 Govern ment Order dated 8th March, 1965. Sub-stanceof this Government Ordershows 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 provisions 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 provi dent 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 em phasised that the employees who have a long service on their account are being ter minated on petty fault and it was mentioned that the action should not be arbitrary and stress was made that while terminating ser vices the length of service, previous record of the Government servant be taken into consideration and they should be ter minated in accordance with rules. THE ap plication of principle of natural justice can not be ruled out. The plaintiff appellant took the mat ter 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 describ ing 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 as serted that the plaintiff being a temporary employee he was dismissed in accordance with the Rules and there was no stigma or discrimination attaching to the termina tion. The appellate court also agreed with the finding of the lower court that the ter mination is simplicter and the management had a full right to terminate the services.
(3.) 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 the appeal I framed question No. 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 Constitu tion 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 he Govern ment and its control exercised by the Minis try 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: 1. AIR 1981sc 487 Ajai Hasi v. Khalid Mujib, (Para 11,12 and 15 ). 2. AIR 1984 SC 541 Dr. YP Gupta v. Union of India. 3. AIR 1994 UPLBEC (2) 1003 Sri Sankarji Singh v. I. E. R. T. . 4. 1995 UPLBEC (3) 1964 Rajani Sharma v. Army School. 5. 1989 UPLBEC (1) 179 S. S. Verma v. G. M. Elgin Mills.;