PETITIONER:
RAKESH KUMAR SINGH
Vs.
RESPONDENT:
THE COMMITTEE OF MANAGEMENT, RAIBARALI
DATE OF JUDGMENT: 20/03/1996
BENCH:
NANAVATI G.T. (J)
AGRAWAL, S.C. (J)
CITATION:
JT 1996 (5) 532 1996 SCALE (3)34
ACT
HEADNOTE
JUDGMENT
JUDGMENT NANAVATI,J.
The appellant was appointed as a Lecturer on probation for a period of one year from 6th August, 1970 in the college run by Respondent No.1.. In May 1971, the Principal of the college submitted a report to the Management that performance of the appellant was not satisfactory and that he was not fit to be continued in service. The Management at its meeting held on 20th June, 1971, considered that report and passed a resolution for termination of service of the appellant. The college being a recognized institution under the U.P. Intermediate Education Act, 1921, prior approval of the District Inspector of Schools was necessary for effectively terminating the service of the appellant and therefore, the resolution-cum-proposal of the Management was forwarded to the concerned District Inspector. After considering the same the District Inspector by his order dated 5th July, 1971, accorded approval. Thereupon the Management terminated the petitioner’s service on 6th July, 1971. The appellant preferred an appeal to the Deputy Director of Education. By an order dated 15th March, 1972 he allowed the appeal and held the termination invalid on the ground that neither one month’s notice nor one month’s pay in lieu of notice was given to the appellant as required by Regulation 25 framed under Section 16 C of the Act.
Against that order the Management filed a Writ Petition being Civil Misc. Writ Petition No. 3171 of 1972 in the Allahabad High Court. It was not disputed before the High Court that Regulation 25 which reads as under :
"25. The services of a temporary
employee (other than a probationer)
or of a probationer during the
terms of his probation, may be
terminated at any time by giving
him one months’s notice or one
month’s pay in lieu thereof." was applicable. It was also not in dispute that neither one month’s notice nor one month’s pay in lieu thereof was given to the appellant. The High Court construing Regulation 25 held that though giving of one month’s notice or one month’s pay in lieu thereof is necessary that is not a condition precedent to the exercise of power under that regulation and therefore, even if one month’s notice is not given or one month’s pay is not paid at the time of termination that will not render termination of service invalid but will make the employee entitled to one month’s salary only. The High Court took this view following its earlier decision in Director of Technical Education Vs. Jan Mohammad (1975 All. L. R. P.8) and allowed the petition.
Learned counsel for the appellant relying upon a full bench decision of the Allahabad High Court in Managing Committee, Sohan Lal Higher Secondary School Vs. Sheo Dutt Gupta (1974 A.L.J. P. 465) contended that Section 16-G (3) (a) of the Act applies to a probationer also and therefore the services of a probationer cannot be terminated unless notice of termination is served after obtaining approval of the Inspector. He further submitted that Regulation 25 requires giving of one month’s notice or one month’s pay in lieu thereof. As one month’s notice was not given to the appellant nor was he paid one month’s pay, termination of his service ought to have been held as invalid. In S.D. Gupta’s case two points which arose for consideration were whether the notice of termination of the services of the probationer teacher could be served before the according of approval by the District Inspector of Schools and secondly whether in the facts and circumstances of the case service of the notice of termination prior to the granting of the approval could be condoned. The Allahabad High Court held that Section 16-G (3)(a) which provides that no principal, Head Master or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any distinction in emoluments or served with notice of termination of service except with the prior approval in writing of the Inspector, having been worded generally applies to every case of termination of service where prior to the termination some notice has to be given and therefore it applies to a probationer also. In that case notice of termination of service was given and therefore the High Court had not to consider the question as to what could be the effect of not giving the requisite notice. Therefore reliance placed upon. S.D. Gupta’s case is really misplaced.
The learned counsel also drew our attention to the case in Senior Superintendent R.M.S. Cochin Vs. K.V. Gopinath (1973 (3) SCC 867 : AIR 1972 SC 187) wherein this Court interpreting Rule 5(1)(b) of Central Services (Temporary) Services Rules 1965, dealing with termination of temporary service, has held that to be effective the termination of service has to be simultaneous with the payment to the employee of whatever is due to him. The Rule which fell for consideration in that case was as under :-
"Termination of temporary service.-
(1)(a) The services of a temporary
Government servant who is not in
quasipermanent service shall be
liable to termination at any time
by a notice in writing given either
by the Government servant to the
appointing authority or by the
appointing authority to the
Government servant:
(b) the period of such notice shall
be one month;
Provided that the services of
any such Government servant may be
terminated forthwith by payment to
him of a sum equivalent to the
amount of his pay plus allowances
for the period of the notice at the
same rates at which he was drawing
them immediately before the
termination of his services, or, as
the case may be, for the period by
which such notice falls short of
one month."
Interpreting the said Rule this Court observed as under:-
"Rule 5 (1) (a) gives the
Government as well as the employee
a right to put an end to the
service by a notice in writing.
Under Rule 1 (b) the period
prescribed for such notice is one
month. The proviso to sub-rule (b)
however gives the Government an
additional right in that it gives
an option to the Government not to
retain the service of the employee
till the expiry of the period of
the notice; if it so chooses to
terminate the service at any Lime
it can do so forthwith "by payment
to him of a sum equivalent to the
amount of his pay plus allowances
for the period of the notice at the
same rate at which he was drawing
them immediately before the
termination of his services, or as
the case may be, for the period by
which such notice falls short of
one month." At the risk of
repetition, we may note that the
operative words of the proviso are
"the services of any such
Government servant may be
terminated forthwith by payment".
To put the matter in a nutshell, to
be effective the termination of
service has to be simultaneous with
the payment to the employee of
whatever is due to him. .........
The rule does not lend itself to
the interpretation that the
termination of service becomes
effective as soon as the order is
served on the Government servant,
irrespective of the question as to
when the payment due to him is to
be made."
Before we consider whether Regulation 25 can be said to be similar to the Rule which fell for consideration in K.V. Gopinath’s case it is necessary to refer to an earlier decision of this Court in State of U.P Vs. Dinanath Rai (C.A. No. 1934 of 1986 decided on October 11, 1968, reported in 1969 Service Law Reporter 647). In that case also this Court had to construe a rule for termination of services of a Government servant in temporary service. It was as under:-
"(1) Notwithstanding anything to
the contrary in any existing rules
and orders on the subject, the
services of a Government servant in
temporary service shall be liable
to termination at any time by
notice in writing given either by
the Government servant to the
appointing authority, or by the
appointing authority to the
Government servant.
(2) The period of such notice shall
be one month given either by the
appointing authority to the
Government servant, or by the
Government servant to the
appointing authority, provided that
in the case or notice of the
appointing authority the latter may
substitute for the whole or part of
this period of notice pas in lieu
thereof; provided further that it
shall be open to the appointing
authority to relieve a Government
servant without any notice or
accept notice for a shorter period,
without requiring the Government
servant to pay any penalty in lieu
of notice."
Construing that Rule this Court observed as under :
"The Rule does not say that the pay
should be given in cash or by
cheque at the time the notice is
issued. Knowing the way the
Governments are run, it would be
difficult to ascribe this intention
to the rule-making authority. There
is no doubt that the Government
servant would be entitled to the
pay in lieu of notice but this
would be in the ordinary course.
This decision in Dinanath Rai’s case was considered by this Court in K.V. Gopinath’s case and distinguished by observing that:
"No doubt the language of that rule
is somewhat similar to the words of
Rule 5 but there is an essential
difference. The rule only means
that the pay for 30 days or less
may be substituted for service for
the period of the notice. In other
words, the rule only entitles the
employee to pay for the period of
the notice without laying down any
condition as to when the payment is
to be given."
Thus the consistent view of the Court is that where the rule permits giving of pay in lieu of the notice of termination and does not further provide as to when the payment is to be made, it only entitles the employee to pay for the period of the notice and payment of notice pay cannot be regarded as a condition precedent to the valid termination of service. but where the rule provides even by implication that payment to the employee of whatever is due to him should be simultaneous with. termination of his service then fulfillment of that requirement has to be regarded as a condition precedent to the valid termination. In view of the words "terminated forthwith by payment" in the proviso to Rule 5(1)(b) this Court held that payment was intended simultaneously with termination and that was pointed out as the essential difference between Rule 5(1)(b) with which is was concerned in Gopinath’s case and the rule which was considered in Dinanath’s case.
A bare reading of Regulation 25 indicates that it is more similar to the rule which fell for consideration in Dinanath’s case. It gives an option to the management either to give one months notice or one month’s pay in lieu thereof. It does not provide for the mode or time for payment. Thus the rule only entitles the temporary employee or the probationer to pay for the period of notice. As we are of the view that Regulation 25 does not provide payment of one month’s pay in lieu of notice as a condition precedent to the effective termination of service, the High Court was right in setting aside the order of the Deputy Director who had taken a contrary view. The view taken by the High Court is correct and, therefore, this appeal is dismissed.
However, in view of the facts and circumstances of the case, there shall be no order as to costs.