R.A. Sharma, J. - (1.) IN 1967 petitioner was appointed as a lecturer (Maths in Jai Sita Ram Kisan Inter College, Jhinjhana, Muzaffarnagar (hereinafter referred to as the college) on probation for a period of one year and he was confirmed on that post on 8 -8 -1968. The Committee of Management of the college on 6 -6 -1971 resolved to abolish the subject of Mathematics due to paucity of students. This resolution was approved by the District Inspector of Schools, Muzaffarnagar (hereinafter referred to as the D.I.O.S.) on account of which the petitioner's services have been terminated by the management vide its order dated 7 -7 -1972 with effect from 1 -7 -1972. Against this order petitioner filed an appeal, which has been decided by the Regional Deputy Director of Education, Meerut by his order dated 26 -6 -1981. By the above order the Deputy Director of Education has held that termination of the service of the petitioner by order dated 7 -7 -1972 without giving three months' notice or three months' pay -in lieu thereof was illegal. However he approved the grant of permission for abolition of subject of Maths and permitted the management of the college to terminate the services of the petitioner afresh. Petitioner has filed this writ petition, challenging the aforesaid order. The Committee of Management of the college has also filed writ petition No. 8929 of 1981, challenging the same order of the Deputy Director of Education. Sri A.K. Sharma, learned counsel for the petitioner has made three submissions, namely, (i) payment of salary for three months is a condition precedent for terminating the services of a permanent teacher of an Intermediate College and such a payment not having been made alongwith the order of termination, termination order is bad; (ii) a subject cannot be abolished by the management without the permission of the Board and such a permission not having been obtained from the Board, the abolition of the subject Maths and the order of termination of the services of the petitioner in pursuance thereof cannot be sustained; and (iii) the finding about the reduction of the number of students in Maths is unjustified and cannot be upheld. Sri Vishnu Sahai, learned counsel appearing for the management of the college in both the cases has on the other hand disputed the aforesaid submissions and has further argued that at the most petitioner is entitled for seven days' salary from 1 -7 -1972 to 7 -7 -1972.
(2.) REGULATION 26 of Chapter III of Regulations framed under U.P. Intermediate Education Act, which authorises the termination of service of a permanent employee of an institution by giving him three months' notice or pay in lieu thereof is reproduced below; 26. (1) The services of a permanent employee may be terminated by -giving him three months' notice or three months pay -in lieu thereof, on the ground of the abolition of the post which the employee is holding. The abolition may be due to one of the following reasons: (a) retrenchment decided upon for reasons of financial stringency, (b) abolition of subject, (c) abolition of section or class. (2) For the purpose of computing the period of notice mentioned in Clause (I) or for determining the amount to be paid in lieu thereof the period of summer vacation shall be excluded. The service of a permanent employee can be terminated "by giving him three months' notice or three months pay in lieu thereof". The services of an employee as such cannot be terminated unless he is given three months' notice or in lieu thereof he is given three months' pay. In case the three months' notice is not given termination order can be upheld only if the three -months' pay has been paid to the employee at the time when he was served with the order of termination. A Division Bench of this Court has in the case of Shiv Raj Singh v. Devji Mal Asha Ram Paliwal,, 1982 UPLBEC 476 held that giving of three months' notice or pay in lieu of the notice is a condition precedent for the management to exercise its right to terminate the service. The relevant extract from this judgment is reproduced below: Regulation 26 is in positive terms. Under it the management can terminate the services of a permanent employee by giving him three months? notice or three months' pay in lieu thereof. Giving of the three month's' notice or pay in lieu thereof is a condition precedent for the management to exercise its right to terminate the services of an employee. To the same effect is the decision of another Division Bench of this Court in the case of Paras Nath Singh v. The Committee of Management,, 1982 UPLBEC 425 In this connection reference may also be made to the case of Senior Superintendent v. K.B. Gopinath, : AIR 1972 SC 1487 wherein Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 as it stood before amendment came up for consideration before the Supreme Court. The Supreme Court held that as proviso to Rule 5 authorises the Government to terminate the services of an employee forthwith "by payment to him" of requisite pay for the period of notice, the services of an employee cannot be terminated unless payment has been made simultaneously with the order of termination. In the instant case. Regulation 26 requires giving of notice or giving of three months' pay in lieu thereof and unless either notice is given or the pay in lieu thereof is given, the valid order of termination cannot be passed. The payment has to be simultaneous with the order of termination otherwise it cannot be deemed to be giving of pay in lieu of the notice. From the perusal of the termination order dated 7 -7 -1972, it appears that three months' salary has been deposited in the Bank account of the petitioner. Although the termination order is dated 7 -7 -1972 but it has been enforced with effect from 1 -7 -1972 and three months' salary counted from 1 -7 -1972, i.e., salary for the months of July, August and September, 1972 have been deposited in lieu of three months' notice. As the order was passed on 7 -7 -1972 salary for three months with effect from 7 -7 -1972 should have been deposited. It is thus, clear that at the time when the notice was given on 7 -7 -1972, petitioner was not given three months' pay in lieu of three months' notice. The order of termination as such, cannot be upheld.
(3.) SUBMISSION of the learned counsel for the management that the order of termination should not be declared invalid but only seven days' salary should be directed to be paid to the petitioner, cannot be accepted. When the law requires giving of three months' notice or pay in lieu thereof for termination of service of an employee, no valid order of termination can be passed unless three months' notice or pay in lieu thereof is given. Giving of notice or pay in lieu thereof is a condition precedent for exercising the right of terminating the service of the employee and unless this condition is satisfied the order of termination of service cannot be passed. When the amount, which has been paid to the employed at the time of termination of his service is short of three months' pay the order of termination cannot be sustained. In the instant case as held by the Deputy Director of Education the amount, which has been deposited in lieu of notice is not equivalent to three months' salary of the petitioner. The termination of his service is as such, invalid.;