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CASE NO.:

Appeal (civil) 534 of 2001

PETITIONER:

The Secretary, Technical Education,U.P. & Ors

RESPONDENT:

Lalit Mohan Upadhyay & Anr

DATE OF JUDGMENT: 09/04/2007

BENCH:

A. K. Mathur & Lokeshwar Singh Panta

JUDGMENT:

J U D G M E N T

Lokeshwar Singh Panta, J.

This appeal is directed against the judgment and order

dated 02.11.1999 passed by the High Court of Judicature at

Allahabad in Civil Miscellaneous Writ Petition No.

10058/1994. By the impugned judgment, the High Court

allowed the writ petition and set aside the order of acceptance

of the letter of resignation tendered by Shri Lalit Mohan

Upadhyay, Lecturer and the appellants were directed to

reinstate him in service to the post of Lecturer in Mathematics.

The necessary facts in short may be stated:-

Kumaon Engineering College [for short "KEC"],

Dwarahat, District Almorah, Uttar Pradesh (U.P.), was

established in the year 1991 under the Plan Scheme of the

State Government. This College is a residential and co-

educational institution and all the students are required to

reside in the hostel attached to the College.

On 12.10.1991, Shri L.M. Upadhyay - respondent No. 1

herein was appointed as a Lecturer in Mathematics on

probation for a period of two years in KEC. He joined the

service on 21.10.1991. On 18.03.1993, Ms. Geetanjali Gupta,

a student of B.E. 2nd year (1992-93 batch), fell seriously ill.

The Principal of the College - appellant No.2 herein deputed

Shri L.M. Upadhyay, Ms. Hema Punetha, Library Clerk of the

College to take the girl for medical treatment to the Civil

Hospital, Ranikhet. When Ms. Geetanjali joined the College

after recovery from illness, she was noticed upset and terribly

disturbed by her classmates and teachers. It is the case of the

appellants that on 04.04.1993 Ms. Geetanjali filed a complaint

against Shri L.M. Upadhyay for his indecent behaviour with

her in the hospital. Looking to the seriousness of the

allegations, the Principal promptly wrote a letter dated

06.09.1993 to Assistant Professor-cum-Dean, Students

Welfare of KEC(for short "DSW") asking her to carry out

inquiry in camera about the correctness of the contents of the

complaint made by Ms. Geetanjali against Shri L.M.

Upadhyay. On receipt of the letter of the Principal, Ms. M.

Srivastava, DSW, immediately called and examined the

complainant Ms. Geetanjali, her classmates, namely, Ms.

Nidhi Choudhary, Ms. Yasha Bharadwaj and Ms. Richa

Aggarwal in support of the complaint. Ms. M. Srivastava

submitted her report to the Principal on the same day, i.e.,

06.09.1993. It is the case of the appellants that Shri L.M.

Upadhyay on coming to know about filing of the complaint by

the girl student and also holding of inquiry in camera by the

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DSW, he, on the same day, submitted letter of resignation to

the Principal requesting him (the Principal) to accept the same

with immediate effect. The Principal, with a view to save the

future career of Shri Upadhyay as well as to protect the

reputation of the institution, accepted his request and

forwarded the letter of resignation to the Chairman, Board of

Governors, for necessary acceptance and approval with

immediate effect.

It appears from the record that Shri L. M. Upadhyay had

written a letter dated 10.09.1993 (Annexure \026 P3) to the

Governor, U.P., the Chief Secretary, Government of U.P. and

the Secretary, Technical Education (U.P.), alleging therein that

the Principal of KEC had pressurized a girl student to lodge a

false and frivolous complaint against him. He stated that on

06.09.1993, the Principal called him to his residence and

forced him to put his signatures on the letter of resignation

and thereafter he left the College campus with his bag and

baggage on the same day. On receipt of the representation,

the State Government on 10.10.1993 decided to appoint

Professor N.L. Kachhera, Director, Kumaon Nehru Institute of

Technology [for short "KNIT"], Sultanpur and Dean, Faculty of

Engineering, Avadh University, Faizabad, to hold fact finding

inquiry in the whole episode. Professor N.L. Kachhera,

accordingly, held the inquiry and submitted his detailed report

in which he stated that the charge of indecent and

objectionable behaviour of Shri L.M. Upadhyay with a girl

student in the Hospital stood proved. Again on the direction of

Secretary (Education) to the State Government of U.P., the

District Magistrate, Almora, on 15.12.1993, directed the Sub-

Divisional Magistrate, Ranikhet, to hold a detailed inquiry on

the charge of misbehaviour of Shri L.M. Upadhyay with a girl

student in the hospital and also to enquire into the allegation

whether Shri Upadhyay was forced or coerced by the Principal

of the College to tender his resignation. The Sub-Divisional

Magistrate in his detailed Report submitted to the District

Magistrate reported that the charge of indecent behaviour

levelled against Shri L. M. Upadhyay by a girl student during

her stay in the hospital was found correct and counter

allegation of Shri Upadhyay against the Principal was reported

to be wrong.

Shri S.K. Srivastava, Joint Secretary in the Education

Department of State of U.P., vide letter dated 17.01.1994 had

communicated to the Principal an order of the Chairman,

Board of Governors whereby the letter of resignation of Shri

Upadhyay was accepted. Later on, Shri L.N. Paliwal (new

Principal of the College), vide registered letter dated

29.01.1994 informed Shri L. M. Upadhyay that his resignation

dated 06.09.1993 had been accepted by the Chairman, Board

of Governors, KEC.

Shri L.M. Upadhyay impugned the order dated

21.01.1994 in CMWP No. 10058/1994 filed before the High

Court of Allahabad inter alia on the ground that he had

withdrawn the resignation before its acceptance, therefore, the

order of acceptance by the authority was illegal and he be

treated as continued in service. A Division Bench of the High

Court vide impugned order dated 2.11.1999 allowed the writ

petition and held as under:-

"In our opinion, the Principal had no

authority or jurisdiction to accept the

petitioner's resignation as the petitioner's

Appointing Authority is the Board of

Governors and hence only the Board of

Governors can accept his resignation. In

fact the Principal has recognized this

legal position as he forwarded the papers

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to the Board, but there was no

acceptance by the Board of Governors

and instead it was the State Government

which accepted the resignation on

17.1.1994 i.e. long after the petitioner

had withdrawn his resignation.

Hence, we set aside the impugned order

dated 27.01.1994 and hold that the

petitioner validly withdrew his

resignation. The petitioner will be

reinstated in service within six weeks

from the date of production of a certified

copy of this order before the Authority

concerned and shall be treated in

continuous service as if his service had

never come to an end. He will get

seniority and all consequential benefits

and also arrears within three months

from the date of production of a certified

copy of this order. No order as to costs."

Now, the Secretary, Technical Education, State of U.P.,

the Principal, KEC, and the Chairman (Chief Secretary), Board

of Governors, KEC filed this joint appeal by special leave,

challenging the correctness and validity of the order of the

High Court.

Having heard Ms. Niranjana Singh, learned counsel for

the appellants and Mr. Dinesh Dwivedi, learned senior

Advocate assisted by Mr. Nikhil Majithia, Advocate, and having

perused in detail the entire material on record, we are of the

view that the impugned order of the High Court is erroneous

and cannot sustain in law.

The undisputed facts are that Shri L. M. Upadhyay-

respondent No.1 on selection as a Lecturer in Mathematics,

joined his duty on 21.10.1991 in KEC, Dwarahat, District

Almora. He was initially appointed on probation for a period of

two years. Dr. M. C. Srivastava was the Principal of the

College. On 18.03.1993, Ms. Geetanjali Gupta, a student of

B.E. 2nd Year (1992-93 batch), fell seriously ill in the campus

of the College. She had to be taken to the Civil Hospital,

Ranikhet, for medical treatment. The Principal of the College

deputed respondent No.1, Ms. Nidhi Choudhary, a classmate

of Geetanjali and Ms. Hema Punetha, a Library Clerk in the

College, to take Ms. Geetanjali to Civil Hospital, Ranikhet. Ms.

Geetanjali was admitted in the Hospital where respondent

No.1 along with Ms. Nidhi and Ms. Hema Punetha was

attending her.

It is the case of the appellants that when Ms. Geetanjali

after recovery joined the College, her classmates and teachers

noticed Geetanjali's behaviour abnormal and she looked quite

upset. On 04.09.1993 Ms. Geetanjali filed a complaint to the

Principal of the College levelling various instances of indecent

and objectionable behaviour of Shri L. M. Upadhyay with her

during her stay in the hospital as an indoor patient. The

Principal of the College considering the seriousness of the

complaint vide letter dated 06.09.1993, asked the DSW of the

College to hold inquiry in camera in regard to the correctness

and truthfulness of the allegations of a girl student. DSW in

her Report dated 06.09.1993 (Annexure P-1) stated that she

called and asked Ms. Geetanjali, her classmates Ms. Nidhi

Choudhary, Ms. Yasha Bhardwaj and Ms. Richa Aggarwal,

about the entire matter. All the girls narrated the incidents in

tears. Ms. Geetanjali stated: "I stopped the hands of

Upadhyay Sir with a jerk but he did massaging (hips) forcibly.

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In spite of my protestation, he pressed my legs. He picked up

my blanket at the time of doctor's visit, and in spite of the

utterance of Nidhi, "Stop, Stop". Since I wore nighty, which

was raised under the blanket, I did not like his behaviour. I

remained in mental tension for many days/months. Whenever

I think about this incident, I felt uncomfortable and hated

myself. Whenever my mother used to admire him, I was

excited with anger. I am unable to bear this mental tension".

Ms. Nidhi also repeated the incident. Besides she stated,

"Since Geetanjali was in M.C. period when she was admitted

in the hospital, she requested Shri Upadhyay Sir that it was

not good to massage her hips but he kept on doing so by

saying that he knew everything that I felt bad". She also stated

that Upadhyay Sir asked to open the hooks of Geetanjali's bra

many times. The first day he directed Hema Punetha to go to

her home and she need not remain there. She was

accompanying us for our protection. Ms. Yasha and Richa

were not present in the hospital, but they stated that Ms.

Nidhi after coming back from the hospital had narrated the

entire incident to them. These students stated before the DSW

that quite often Geetanjali used to weep continuously and

sometimes she said that it would be better for her to die. They

faced a lot of problems to console Geetanjali. When the DSW

asked these girls as to why they took sufficient time to make

the complaint, the students said: "the marks of Maths in four

Semesters are in the hands of Upadhyay Sir. That is why we

did not tell anyone". When Ms. Geetanjali was further asked

by the DSW whether she narrated the incident to her mother

or not, Geetanjali replied: "No, I did not inform my mother

because I had a terror that she would stop my study".

It appears from the record that on receipt of the Report of

the DSW, the Principal of the College summoned Shri L. M.

Upadhyay and apprised him about the complaint made

against him by Ms. Geetanjali and as also about the Report

submitted by the DSW. The respondent No. 1, just to save

himself from any consequential disciplinary action likely to be

taken against him by the Principal or the authority of the

College and also to avoid his condemnation by the members of

the staff, teachers and the students of the College, submitted a

letter of resignation to the Principal on 06.09.1993 and

insisted for its acceptance immediately. He left the College

thereafter in haste with his father. Shri L. M. Upadhyay in his

letter of resignation indicated his unequivocal intention to

resign with immediate effect and the letter having been

communicated to the Principal and received by him on

06.09.1993, he observed: "Resignation letter accepted with

immediate effect as per his request." Sd/- 06.09.1993. The

Principal further stated:-

"Although usually one month's notice is

required to be given by the employee

while resigning, it is upto the Board of

Governors to accept the resignation with

immediate effect and to waive the notice

period."

On 10.09.1993, Shri L. M. Upadhyay submitted a

representation/complaint (Annexure P-3) to the Governor, the

Chief Secretary and the Secretary, Technical Education, in

which some allegations were levelled against the hostile

conduct and behaviour of the Principal towards him. He also

stated that the letter of resignation dated 06.09.1993 was

written by him under the pressure and coercion of the

Principal. He requested the authorities to hold proper inquiry

in the incident narrated by the girl students to the Principal as

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also the allegations made by him against the Principal of the

College.

As noticed above, the State Government appointed Shri

Narayan Lal Kachhera, Director, KNIT, Sultanpur, to hold

independent inquiry on the subject of factual analysis and

comments on the complaints made by employees and students

of KEC. Shri Narayan Lal Kachhera, Director conducted

detailed inquiry on eleven issues including Issue No.6 in

regard to the objectionable behaviour of Shri L. M. Upadhyay,

Lecturer, with Ms. Geetanjali in Ranikhet Hospital. The

Director in the Report dated 10.10.1993 (Annexure - P8)

stated that when Ms. Geetanjali was admitted in the Civil

Hospital, Ranikhet, she felt pain on her hips. She was given

injections by the medical staff and was advised to use pain

reliever ointment. Ms. Nidhi Choudhary had applied the

prescribed ointment on the hips of Geetanjali, but Shri L. M.

Upadhyay on his own started massage on her hips in spite of

strong objection raised and opposition of Geetanjali. The

Report stated that Shri L. M. Upadhyay shifted Ms. Geetanjali

from one bed to another bed against her wishes and in the

process, Ms. Geetanjali had been harassed mentally by the

misbehaviour of Shri L. M. Upadhyay. The Director had taken

into consideration the reply of Shri L.M. Upadhyay in which he

admitted that on the night of 18.03.93 he asked Ms. Hema

Punetha, Library Clerk not to stay in the Hospital and she was

allowed to go to home. The Director observed that after going

through the photocopies of the diary maintained by Ms.

Geetanjali, her complaint was believed to be true and the

behaviour of Shri L. M. Upadhyay with a girl student was quite

objectionable with evil designs as a result thereof Ms.

Geetanjali remained in mental tension and frustration. The

Director stated that in the absence of any eyewitness, Shri

L.M. Upadhyay could not prove that he was forced or

pressurized by the Principal to submit his letter of resignation.

The Director concluded that the statement of Shri L. M.

Upadhyay that he had been harassed and tormented by the

Principal and his wife Smt. M. Srivastava could not be believed

because he himself admitted that he always had good relations

with all the officers. Dr. N. N. Khan, Lecturer in Chemistry,

during inquiry made a statement that on the request of Shri

Upadhyay, he took his letter of resignation to the residence of

the Principal. The Principal was aware of the fact that Shri

Upadhyay had called his father from Ranikhet as Shri

Upadhyay wanted to leave the College on the same day with

his father. The Director observed that it was just probable

that the Principal might have asked Upadhyay to give his

resignation and leave the College for maintaining discipline

and fair environment at the College campus. We have gone

through the communication dated 05.10.1993 (Annexure P-4)

submitted by Dr. N. N. Khan to the Director, KNIT, Sultanpur.

The document would reveal that Dr. N. N. Khan handed over

the letter of resignation written by Shri L. M. Upadhyay to the

Principal. Dr. N. N. Khan also stated before the Director that

Shri L. M. Upadhyay was repeatedly saying that he did not

want to stay in the College.

It appears from the record that the District Magistrate,

Almora, had appointed Sub-Divisional Magistrate as an

Inquiry Officer for conducting inquiry on three points raised by

Shri L. M. Upadhyay in his complaint against the Principal.

The Magisterial Inquiry was got conducted by the District

Magistrate in compliance to the letter dated 11/12.10.1993

addressed by the Secretary Technical Education Department

to the District Magistrate.

Shri Rajneesh Gupta, S.D.M./Inquiry Officer, Ranikhet,

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in his report dated 12.12.1993 submitted to the District

Magistrate, stated that on 18.03.1993 Shri L. M. Upadhyay

took Ms. Geetanjali along with other students to the Civil

Hospital, Ranikhet. He spent one night in the hospital ward

with patient Ms. Geetanjali. Shri Upadhyay also accepted that

when Ms. Geetanjali was feeling severe pain, he applied

medicine on her private organs with his hands and he shifted

her from one bed to another bed despite her protest and

objection. He asked Ms. Hema Punetha, Library Clerk, to

leave the hospital during night time. The report would reveal

that serious allegations of misbehaviour and misdeeds of Shri

Upadhyay towards Ms. Geetanjali were proved by the evidence

of four other girls. The allegation of Shri L. M. Upadhyay that

the Principal hatched a conspiracy against him and got the

letter of resignation forcibly written from him, was not found

true by the Sub-Divisional Magistrate. The S.D.M. stated that

when he discussed the entire matter with the students and

took their written statements, he came to know that Shri L. M.

Upadhyay could not dare to face the students and the teachers

in the College, therefore, he on his own submitted the

resignation and requested the Principal to accept the same

immediately so that he could quietly leave the College campus

before his misdeeds would come to be known to the majority of

the students and other teachers of the College. The S.D.M.

observed that the Principal of the College was an incapable

Administrator and was not competent to run the

administration of the College smoothly. The Report (Annexure

P-9) of the S.D.M. was submitted by Shri R. K. Singh, District

Magistrate, Almora, vide letter dated 15.12.1993 to Shri R. K.

Sharma, Secretary, U.P. Government, Technical Education

Department. The contents of the letter reveal that Shri R. K.

Singh, District Magistrate, requested the Secretary that it

would be in the best interest of the Institute if Dr. M. C.

Srivastava, the Principal, should be shifted from the College so

that the ongoing agitation of the students and the employees

since September 1993 could be stopped. We find on record

letter of Dr. N.N. Khan, Lecturer in Chemistry, dated

24.11.1993 (Annexure P-5) written to the S.D.M., Ranikhet,

stating that Shri L.M. Upadhyay had resigned on his own and

the said letter of resignation was handed over to him to be

delivered to the Principal of KEC.

The record also shows that Shri S. K. Srivastava, Joint

Secretary to the Government of U. P., vide registered letter

dated 17.01.1994 (Annexure P-6) conveyed to the Principal the

order of the Chairman, Board of Governors whereby the letter

of resignation of Shri Upadhyay dated 06.09.1993 was

accepted. Similarly, Shri L. N. Paliwal, who by that time had

resumed the charge of the Principal of KEC vide registered

letter dated 29.01.1994 (Annexure P-7) informed Shri L. M.

Upadhyay through Dr. U. C. Upadhyay, Central School,

Ranikhet, that the Chairman, Board of Governors, KEC, had

accepted his letter of resignation.

The general principle is that a Government servant/or

functionary who cannot, under the conditions of his service/or

office, by his own unilateral act of tendering resignation, gives

up his service/or office normally the tender of resignation

becomes effective and his service/or office tenure gets

terminated when it is accepted by the competent authority.

Thus, having regard to the letter of resignation (Annexure P-2),

in the present case, there can be no doubt that Shri. L. M.

Upadhyay had in his letter dated 06.09.1993, indicated his

unequivocal intention to resign in the clearest possible terms

with immediate effect. The resignation was tendered by Shri.

Upadhyay voluntarily without any pressure or coercion from

the Principal of the College as recorded by all the Inquiry

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Officers in their respective fact finding reports and the counter

allegation of Shri. Upadhyay against the Principal was found

unwarranted and unfounded. The Principal in fact, had

protected the reputation, saved the future career and

unnecessary humiliation and embellishment of Shri.

Upadhyay from the students, staff members and teachers of

the College by permitting him to leave the College immediately

before his letter of resignation was forwarded to the competent

authority for its acceptance.

We have carefully gone through the

representation/complaint dated 10.09.1993 (Annexure P-3)

submitted by Shri L. M. Upadhyay to the Governor, the Chief

Secretary and the Secretary, Technical Education. There is no

whisper in the said representation that he intended to

withdraw his letter of resignation dated 06.09.1993. Thus,

finding of the High Court that Shri L. M. Upadhyay had

withdrawn his letter of resignation dated 06.09.1993 by a

subsequent letter dated 10.09.1993 was not born out from the

record. Similarly, the High Court is not right in holding that

the letter of resignation dated 06.09.1993 submitted by Shri L.

M. Upadhyay was accepted by the State Government and not

by the Board of Governors is not tenable. As noticed above,

the letter of resignation tendered by Shri L.M. Upadhyay to the

Principal was forwarded by the Principal on the same day to

the Board of Governors for its acceptance with immediate

effect with a request to waive the period of notice of one month

required to be given by the employee before tendering his

resignation. The documents marked as Annexures P-6 and P-

7 would clearly and plainly establish that the letter of

resignation tendered by Shri L. M. Upadhyay was accepted by

the competent authority after receipt of the inquiry reports of

the inquiry officers. It is not in dispute that the Chief

Secretary was the Chairman of the Board of Governors of the

College and the Joint Secretary of the Department of Technical

Education, State of U. P., had only conveyed the decision of

the acceptance of the resignation taken by the Chairman,

Board of Governors, to the Principal of the College. In that

view of the matter, it cannot be held that the letter of

resignation of Shri L. M. Upadhyay was accepted by the

Principal of the KEC or by the State Government as submitted

by respondent No. 1.

There cannot be any quarrel on the settled principle of

law that an employee is entitled to withdraw his resignation

before its acceptance by the competent authority. We have

gone through the decisions of this Court in M/s J. K. Cotton

Spg. & Wvg. Mills Company Ltd., Kanpur v. State of U. P. & Ors.

[AIR 1990 SC 1808] and Union of India & Ors. v. Gopal

Chandra Misra & Ors. [(1978) 2 SCC 301] relied upon by the

learned senior counsel for respondent No.1. He contended

that before terminating the services of the respondent No.1 on

the basis of the complaint of the girl student and subsequent

inquiry reports of the Inquiry Officers, it was obligatory upon

the Authority to hold regular departmental inquiry for the

alleged misconduct and then to proceed against respondent

No. 1 in accordance with relevant Rules. We are afraid to

accept this submission. Admittedly, Shri L. M. Upadhyay was

on probation and the Authority was empowered to judge his

fitness for work or suitability to the post of teacher at the time

of acceptance of his resignation. In our view, the services of

Shri L.M. Upadhyay during probation period could have been

terminated by the Authority, but the Principal and the Board

of Governors had adopted a reasonable and fair mode of

accepting his pending letter of resignation instead of

terminating his services for unsuitability.

For the above-said reasons, this appeal deserves to be

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accepted and it is, accordingly, allowed. The impugned order

dated 02.11.1999 of the High Court of Judicature at Allahabad

passed in CMWP No.10058 of 1994 is not legal and justified.

It is set aside accordingly. We leave the parties to bear their

own costs.