Secretary, Technical Education,U.P. & Ors Vs. Lalit Mohan Upadhyay & Anr 
Insc 374 (9 April
A. K. Mathur & Lokeshwar Singh Panta
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
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 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
It appears from the record that Shri L. M. Upadhyay had written a letter
dated 10.09.1993 (Annexure 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 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.
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
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 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
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 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, 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 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 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
It is set aside accordingly. We leave the parties to bear their own costs.
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