Holding

Regulation 25 does not make payment of notice pay a condition precedent; termination without notice/pay is valid, with the employee entitled only to one month's salary.

Summary

The appellant, a lecturer appointed on probation, was terminated after a performance report and a management resolution, with prior approval from the District Inspector under the U.P. Intermediate Education Act, 1921. The Deputy Director held the termination invalid because Regulation 25, framed under Section 16‑C, required either one month's notice or one month's pay in lieu, which was not given. The High Court ruled that the notice/pay requirement is not a condition precedent to termination; the termination stands, and the employee is only entitled to one month's salary. On appeal, the Supreme Court affirmed this view, holding that Regulation 25 merely entitles the employee to pay for the notice period and does not make payment a prerequisite for a valid termination. Consequently, the appeal was dismissed and no costs were awarded.

Issues considered

Whether Regulation 25 under Section 16‑C of the U.P. Intermediate Education Act, 1921 makes the provision of one month's notice or pay in lieu a condition precedent to the validity of termination of a probationer.
Whether termination of service without giving notice or pay in lieu renders the termination order invalid or merely creates a liability to pay one month's salary.

Legislation cited

U.P. Intermediate Education Act, 1921s. 16-C, s. 16-G(3)(a)

Subjects

probationtermination of servicenotice periodpay in lieu of noticecondition precedentU.P. Intermediate Education ActRegulation 25temporary employee

Judgment

RAKESH KUMAR SINGH A
v.
THE COMMITTEE OF MANAGEMENT, RAIBARALI

MARCH 20, 1996

[S.C. AGARWAL AND G.T. NANA VAT!, JJ.] B

U.P. Intemiediate Education Act, 1921 .- Section 16-C.
/.

Regulation 25-lnteipretation of

Employee-f'robation-Termination during-Provision for one month's
c
salary or notice in lieu thereof-Mode and time of payment not
prescribe~Tem1inatio11 without notice and salary in lieu not invali~But
employee held entitled to sala1y for period of notice.

The services of the appellant, a Lecturer in the College run by the D
Respondent-Committee, were terminated during the period of probation.
y The Deputy Director of Education 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
nnder Section 16-C of the U.P. Intermediate Education Act, 1921. The High E
Court set aside the order of Deputy Director holding that (i) though giving
of one month's notice or one month's pay in lien thereof was necessary yet
it was not a condition precedent to the exercise of power under Regulation
25; and (ii) termination of service without notice or salary in lieu thereof
would not render the termination order invalid but would entitle the
employee to one month's salary only. Against the decision of the High F
Court an appeal was preferred before this Court.

Dismissing the appeal, this Court

HELD : 1. The view taken by the High Conrt is correct. Regnlation
.Jr 25 gives an option to the management either to give one month's notice or G
one month's pay in lien thereof. It does not provide for the mode or time
for payment. It only entitles the temporary employee or the probationer to
his pay for the period of notice. As Regulation 25 does not provide payment
of one month's pay in lien of notice as a condition precedent to the effective
termination of service, the High Court was right in setting aside the order H
671
672 SUPREME COURT REPORTS [19%) 3 S.C.R.

A of the Deputy Director who had taken a contrary view. [677-B-D] )-

2. Where the rule permits giving of pay in lieu of notice of termina-
tion and does not further provide as to when the payment is to be made,
it only entitles the employee to get pay for the period of the notice and
payment of notice pay cannot be regarded as a condition precedent to the
B valid termination of service. But where the rule provides even by impllca-
tion that payment to the employee of whatever is due to him should be
simultaneous with termination of his service then fulfilment of that re-
quirement has to be regarded as a condition precedent to the valid ter- '
mination. [676-G-H; 677-A) '
c State of U.P. v. Dinanath Rai, (1969) S.L.R. 647, relied on.

Managing Committee, Soha11 Lal Hi!fter SecondlllJI School v. Sheo
Dutt Gupta, (1974) A.L.J. 465 and Senior Superintendent R.M.S. Cochin v.
K. V. Gopinath, [1973) 3 SCC 867 = AIR (1972) SC 187, distinguished.
D ,,..
Director of Technical Education v.Jan Mohammad, (1975) All L.R. 8,
referred to.
"'
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2448 of
1978.
E
From the Judgment and Order dated 15.12. 77 of the Allahabad High
Court in C. Misc. W.P. No. 3171of1972.

Pramod Swarup Ms. Pareena Swrup and Prashant Choudhary for the
Appellants.
F
R.B. Misra Adv. (NP) for the Respondents.

The Judgment of the Court was delivered by

NANAVATI, J. The appellant was appointed as a Lecturer on
G 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
H and passed a resolution for termination of service of the appellant. The
R.K. SINGH v. COMMITIEE OF MANAGEMENT [NAN AVAT!, J.] 673

college being a recognised institution under the U .P. Intermediate Edu ca- A
tion Act, 1921, prior approval of the District Inspector of Schools was
necessary for effectively terminating the service of the appellant and there-
fore, 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 B
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 termina-
tion 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. C
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
D

probationer) or of a probationer during the terms of his probation,
may be terminated at any time by giving him one month's notice
or one months' pay in lieu thereof."

was applicable. It was also not in dispute that neither one month's notice
E
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 noti~e is not given or one month's pay is not paid at F
the time of termination that will not render termination of service invalid
but will make the employee entitled to one month's salary only. '{he High
Court took this view following its earlier decision in Director of Technical
Education v.Jan Mohammad, [1975] All L.R. P. 8 and allowed the petition.

Learned counsel for the appellant relying upon a full bench decision G
of the Allahabad High Court in Managing Committee, Sohan Lal Higher
Secondary School v. Shea 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 ter-
mination is served after obtaining approval of the Inspector. He further H

0
674 SUPREME COURT REPORTS [1996] 3 S.C.R.

A 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
B
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
C 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 therefor it applies to a probationer also. In that case notice
D 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
y
misplaced.

The learned counsel also drew our attention to the case in Senior
E Superintendent R.M.S. Cochin v. K. V. Gopinath, [1973] 3 SCC 867 =AIR
(1972) SC 187 wherein this Court interpreting Rule 5(1)(b) be 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 iq that case was as under:
F
Termination of temporary service. -

(l)(a) The services of a temporary Government servant who is
not in quasi permanent service shall be liable to termination at any
time by a notice in writing given either by the Government servant
G
to the appointing authority or by the appointing authority to the
Government servant :

(b) the period of such notice shall be one month;

H Provided that the services of any such Government servant may

0
R.K.SINGHv. COMMITTEE OFMANAGEMENT[NANAVATl,J.] 675

be terminated forthwith by payment to him of a sum equivalent to A
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.''Interprcting
the said Rule this Court observed as under :
B
"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 addition-
~ al right in that it gives an option to the Government not to retain c
the service of the employee till the expiry of the period of the
notice; if it so chooses to terminate the service at any time 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
D
•• 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
y "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 E
payment to the employee of whatever is due to him. ·······················:··
The Rule does not lend itself to the interpretation that the ter-
ruination 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."
F
;J
Before we consider whether Regulation 25 can be said to be similar
to the Rule which fell for consideration in KV. Gopinath's case it is
necessary to refer to an earlier decis.ion of this Court in State of U.P. v.
Dinanath Rai, C.A. No. 1934 of ·1968 decided on October 11, 1968,
reported in 1969 Service Law Reporter 647). In that case also this Court G
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 H
676 SUPREME COURT REPORTS (1996) 3 S.C.R.

A 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 Govern-
ment servant.

(2) The period of such notice shall be one month given either
B by the appointing authority to the Government servant, or by the
Government servant to the appointing authority, provided that in
the case of notice of the appointing authority the latter may
substitute for the whole or part of this period of notice pay in lieu
thereof; provided further that it shall be open to the appointing •
c authority to relieve a Government servant without any notice or
accept notice for a shorter period, without requiring the Govern-
ment servant to pay any penalty in lieu of notice."

Construing that Rule this Court observed as under :

D "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 Govern-
ment servant would be entitled to the pay in lieu of notice but this
E would be in the ordinary course.

This decision in Dinanath Roi's case was considered by this Court in
KV. Gopinath's case and distinguished by obse1ving that :

"No doubt the language of that rule is somewhat similar to the
F 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 wher. the payments is to be given."

G 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
H where the rule provides even by implication that payment to the employee
R.K. SINGH v. COMMITTEE OF MANAGEMENT [NANAVATI, J.] 677

of whatever is due to him should be simultaneous with termination of his A
service then fulfillment of that requirement has to be regarded as a
condition precedent to the valid termination. In view of the words "ter-
minated 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 B
which it was concerned in Gopinath's case and the rule which was con-
sidered in Di11a11ath'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 C
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 D
•• 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.
E
T.N.A. Appeal dismissed.

...
.J