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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.