A.K Yog, J.:— Heard Sri Rajiv Mishra, Advocate, on behalf of the petitioner and Sri Vipin Sinha. Advocate assisting Sri Navin Sinha, Advocate, Counsel for the respondent.

2. Paras Nath Pandey, petitioner, was working on purely temporary basis vide appointment letter dated 11/16th September, 1987 at North Central Zone Cultural Centre, Nyaya Marg, Allahabad, (for short called ‘NCZCC’) as Hindi Stenographer (Annexure 1 to the Writ Petition). The fact that petitioner was working on temporary basis is not in dispute. NCZCC is said to be an authority as contemplated under Article 12, Constitution of India. Details of the complex and composition of NCZCC have been given in the Supplementary Affidavit (sworn by petitioner, Paras Nath Pandey) which shows that it is a society registered under Registration of Societies Act. Executive Board, entrusted with the management of NCZCC consists of six Government offices out of total eleven members. Some of the members are from Sangeet Natak Academy and Lalit Kala Academy established by the Government of India. Chair-person of Executive Board of the NCZCC is to be nominated by the Central Government. NCZCC survives upon the funds exclusively provided by the Central Government. Its holiday are the same as that applicable to the Central Government employees (see Para 9 to 28 of the Supplementary Affidavit filed with amendment application). Petitioner claims NCZCC is an instrumentality of the Central Government and hence an “authority” under Article 12, Constitution of India.

3. According to the averments contained in the petition, a First Information Report containing false allegations under Sections 353 and 186, I.P.C against him, was lodged with the Police Station, Civil Lines. Allahabad against the petitioner (Annexure 5 to the Writ Petition). He was acquitted on 31.3.1999 in Criminal Case No. 569 of 1998 by Special Chief Judicial Magistrate. Allahabad registered on the basis of above referred said First Information Report (Annexure S.A-1 to the Supplementary Affidavit filed with application dated 20.7.1999 under Chapter XXII Rule 1 of Rules of Court).

4. Without going into the details of the correctness of the contrary facts pleaded by the petitioner or the respondent regarding occurrence of the incident in question on 3.8.1991, it will suffice to mention that from the documents annexed with the writ petition, it appears that temporary services of the petitioner were determined by means of the impugned termination order dated 5.8.1991 (Annexure 4 to the Writ Petition).

5. The impugned termination order, for convenience, is reproduced:—

“The services of Sri Paras Nath Pandey, son of Sri Kamla Sharan Pandey, resident of Malak Harihar, district Allahabad, who had been appointed and was working as Hindi Stenographer in this Centre in purely temporary capacity in pursuance of appointment order No. 1356.AS/NCZCC/1987, dated 11/16.9.1987 are hereby terminated. In terms of the aforementioned appointment order his services are liable to be terminated any time without notice. However, looking into the circumstances, a cheque for one month's salary is being enclosed on purely compassionate grounds”.

6. A Counter Affidavit has been filed on behalf of the sole respondent. Averments in the petition have been denied and it is contended that petitioner suffered from some mental disorder and details of the incident dated 3.8.1991 have been mentioned (Paragraphs 12 to 23 of the Counter Affidavit). Along with counter affidavit contesting respondent has annexed copy of the order dated 3.8.1991 (Annexure 7 to the counter affidavit) whereby the Director required Administrative Officer to conduct full and in-depth enquiry into the incident of 3.8.1991, the antecedents of mental illness of the petitioner and submit his report by 5.8.1991 (on the basis of the enquiry) fixing responsibility of the incident in question (Annexure 8 to the counter affidavit).

7. Apart from the averments relating to the merit of the incident, the respondent also raised the plea on two preliminary objections (i) the writ petition is not maintainable as NCZCC is not an authority under Article 12 of the Constitution of India, and (ii) the petitioner has an alternative remedy by approaching under U.P Industrial Disputes Act.

8. A rejoinder affidavit has been filed by the petitioner denying case of the respondent in the Counter Affidavit and reiterated his contention in the writ petition.

9. The learned counsel for the petitioner rebutted the preliminary objections. He argues that the details showing the structure and functioning of NCZCC (vide averments made in the petition and the Supplementary affidavit and which have remained unrebuted) it is fully proved that NCZCC is an authority under Article 12, Constitution of India. Regarding second preliminary objection learned counsel for the petitioner submits that since parties have already exchanged counter and rejoinder affidavits and petition is pending for last several years, it will not be conducive and in the interest of justice to reject the petition at this belated stage, particularly when this petition, according to him, can be decided on pure question of law on the admitted facts.

10. The unrebutted averments in the writ petition and the supplementary affidavit with reference to the structuring of the Centre as well as its constitution, nature of financial supervision and control of the Central Government, leave no room for one to doubt that the respondent NCZCC is an instrumentality of Central Government. Entire funds come from the Central Government. The constitution of the Executive Body shows that Central Government has pervading control on the activity of the Centre.

11. In view of the decision of the Supreme Court in the case of Ajay Hasia etc. v. Khalid Mujib Sehravardi,1 there can be no doubt that NCZCC is an authority under Article 12, Constitution of India. Preliminary objection on the point is decided against the respondent and it is held that writ petition is maintainable against NCZCC.

12. Regarding second preliminary objection, namely, petitioner can seek alternative remedy under U.P Industrial Disputes Act, it will suffice to mention that now it is well settled that a party should not be non-suited only on the ground of alternative remedy when parties have exchanged their replies and matter has remained pending for several years, particularly, when writ petition can be decided on the question of law without entering into the disputed questions of fact.

13. Relevant facts for deciding question of law raised in this petition are— petitioner was temporary servant; a preliminary fact finding enquiry was conducted by Administrative Officer of NCZCC, no charge-sheet was served nor show cause notice given and no disciplinary enquiry of any kind held, termination order is innocuous and an order of termination simplicitor. The question of law raised by counsel for the petitioner and to be decided in the case—is that the order of termination is punitive in nature in the back ground disclosed above and adverse material relied upon by the employer against him are the foundation and does not merely constitute ‘motive’ to resort to act of termination of petitioner's service. Hence preliminary objection on second score is also rejected.

14. The court proceeds to decide the writ petition on merit.

15. Learned counsel for the petitioner in support of his above contention submitted that if the court lifts the veil and ventures to ascertain correct affairs which culminated into issuance of termination order, only irresistible conclusion to be drawn is that the impugned order of termination is not “termination-simplicitor”. and in fact, it is an order of punishment without affording opportunity of hearing.

16. Learned counsel for the petitioner, is support of his case, placed reliance on the following decisions.—

(1) Radhey Shyam Gupta v. U.P State Agro Industries Corporation Limited.2

(2) Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Science, Calcutta.3 (paras 12, 22, 25 to 27, 32 to 34).

(3) Chandra Prakash Shahi v. State of U.P . 2000 5 SCC 152..

17. With reference to paragraph Nos. 12, 22, 25, to 27, 32 to 34 of the judgment in the case of Dipti Prakash Banerjee, the petitioner submits that an enquiry was held wherein evidence was recorded, finding of misconduct has been arrived against the petitioner without affording opportunity and entire proceedings taken behind his back. Consequently, termination order is in violation of principle of natural justice. Termination in question purported to be termination simplicitor is an attempt to camouflage an order of termination by way of punishment, which cast stigma.

18. With reference to the other two decisions also, petitioner seek to place reliance upon selected passage and observations. An attempt is being made to establish that in case an enquiry is held behind the back of a delinquent officer/person then only one inference is possible that the enquiry is violative of principle of natural justice and hence vitiated.

19. According to the petitioner, conclusion recorded in the enquiry report dated 5.8.1991 (Annexure 8 to the Counter Affidavit) in compliance of the order dated 3.8.1991 passed by the Director of the Centre (Annexure 7 to the Counter Affidavit) indicate that the said report is not only motive but foundation for termination.

20. Respondent counsel, on the other hand, placed reliance on the decision in State of Uttar Pradesh v. Kaushal Kishore Shukla . 1991 1 SCC 691 (paragraphs 3 to 8, 11 and 13).

21. The Apex Court, after considering several decisions, found that no temporary Government servant is entitled to opportunity in the preliminary inquiry as there is no element of punitive action in such an inquiry; the idea in holding such an inquiry is not to punish the temporary Government servant but just to decide whether he deserves to be continued in service or not and that every order terminating the services of a temporary public servant does not amount to dismissal or removal from service merely because an inquiry was held before the order of termination was passed. The court observed that the appropriate authority has power to terminate a temporary public servant either by discharging him under the terms of contract or the relevant rules or by holding departmental disciplinary inquiry and dismissing him from service. Before passing order of termination the competent authority may in fairness hold inquiry to ascertain suitability and to determine whether temporary servant deserves to be continued in service or not.

22. In para 13 of the aforesaid case, the Supreme Court while dealing with the case observed that Kamal Kishore Shukla was a temporary Government servant and there was adverse report regarding his work which was reflected in the adverse remarks. The competent authority held a preliminary enquiry in the allegations of improper conduct in carrying out unauthorized audit of Boys fund of an education institution. On result of the preliminary enquiry no charges were framed against the respondent, no officer was appointed for holding the departmental inquiry instead the competent authority chose to terminate the respondent's services in exercise of its powers under the terms of contract as well as under the relevant rules applicable to a temporary Government servant. Supreme Court found that the employer never intended to dismiss the respondent from service and holding of preliminary enquiry does not affect the nature of the termination order. Supreme Court further observed that allegations made against the respondent contained in the Counter Affidavit by way of defence filed on behalf of the appellants also do not change the nature and character of the order of termination. With these observations, the Supreme Court founds that the High Court failed to consider the question in proper perspective and was in error it interfered in the order in a casual manner. Supreme Court allowed the appeal and maintained the termination order.

23. Ratio decidendi laid down by the Apex Court in the case of Kaushal Kishore Shukla (supra), in its own words is quoted below:—

“We have referred to the above decisions in detail to dispel any doubt about the correct position of law. It is erroneous to hold that where a preliminary enquiry into allegations against a temporary Government servant is held or where a disciplinary enquiry is held but dropped or abandoned before the issue of order of termination, such order is not necessarily punitive in nature”.

24. The facts of the present case are somewhat similar to the facts of the case State of Uttar Pradesh v. Kaushal Kishore Shukla (supra). In the instant case petitioner was a temporary employee when order of termination was passed. The order of Director requiring Administrative Officer to hold an enquiry vide order dated 3.8.1991 (Annexure 7 to the Counter Affidavit) and obtaining enquiry report within two days i.e 5.8.1991 (Annexure 8 to the Counter Affidavit) reflects upon the fair approach in the matter and go to show that the competent authority never intended to hold disciplinary enquiry to punish the petitioner. The said enquiry in question was for a limited purpose, i.e to satisfy itself regarding suitability of the employee. It is evident from the language implied in the appointment letter, that services of the petitioner could be determined by giving one month's notice as petitioner. The averments in the Counter Affidavit and documents annexed therewith clearly show that respondent did not act arbitrarily or on whims. On the other hand the respondent acted fairly to find out as to whether continuance of the petitioner in the service was in the interest of the Centre or not.

25. It may be mentioned that petitioner has failed to substantiate half-hearted allegations of mala fide in the writ petition against the then Director (Ms. Neeru Nanda); vide Para 3 to 7 of the writ petition. Such allegations of ‘Bias’ and mala fide cannot be looked into as Ms. Neeru Nanda has not been impleaded by name and had no opportunity to rebut these allegations.

26. In view of the facts and circumstances of the case, it is clear that the enquiry report was only the motive for initiating action for termination and not the foundation as alleged and argued on behalf of the petitioner.

27. In view of the above, petition lacks merit and it is dismissed.

28. No order as to costs.

Petition Dismissed.