Full Judgment Text
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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.