JUDGMENT : S.N. Prasad, J. Additional affidavit has been filed by the petitioner today by serving copy of the same upon learned counsel for O.P. No.3. Office is directed to keep the same on record. This writ petition is against the order dtd.23rd October, 1998 under Annexure-13 passed by the Director, Higher Education, Odisha, Bhubaneswar whereby and where under the appeal filed by opposite party no.3 has been allowed by setting aside the order of termination with a direction to the Governing Body to re-instate her in her previous 1st post of Lecturer in Home Science and pay her all financial entitlements, arrears of pay with continuity of service. 2. The governing body of the College in question, being aggrieved with the order is before this court inter alia on the following grounds:- (i) The first ground urged by the learned counsel representing the governing body of the college is that the order is illegal on the ground that the governing body, who is appointing authority of opposite party no.3, has not been impleaded as party before the Director, Higher Education and the Director, without hearing the governing body has passed the order, hence the governing body has never been provided with opportunity to defend it in order to justify their action. (ii) Secondly, on merit, there is no case warranting the Director to pass an order of such a nature reason being that the applicant has tendered her resignation which has duly been accepted, but subsequently the offer of resignation and its acceptance has seriously been disputed by her by making the statement that the consent for tendering resignation has been obtained on coercion and compulsion and taking this as a ground for quashing the order of termination, the appeal has been allowed by the Director, Higher Education. 3. Learned counsel for the petitioner submits that the appellant has nowhere raised her voice regarding the signature having been obtained by the governing body or the Secretary of the College by coercion or compulsion since no FIR has been instituted against the misdeed as has been alleged by her against the governing body. 3. Learned counsel for the petitioner submits that the appellant has nowhere raised her voice regarding the signature having been obtained by the governing body or the Secretary of the College by coercion or compulsion since no FIR has been instituted against the misdeed as has been alleged by her against the governing body. He submits that the applicant has not only alleged getting the consent for tendering her resignation, rather she has also alleged commission of offence of molestation against the members of the governing body, but it is very surprising that such serious allegation has never been reported immediately either before police or before any higher authority but the Director, Higher Education has not taken into consideration these aspects of the matter while allowing the appeal by coming to the finding that the resignation since been rendered under coercion and compulsion, the order of termination is illegal. He further submits that if the governing body would have been impleaded as party, all these facts would have been brought to the notice of the authority by placing relevant records in this regard. He submits that although FIR has been instituted, but it is after much delay, i.e. on 23.6.1998 for the offence U/ss. 385, 342, 294, 354, 341, 506, 34 I.P.C. The said F.I.R. is followed with the complaint case. The competent court of jurisdiction has handed over the charge of investigation to the police in exercise of power conferred U/s.156(3) of code of civil procedure, the concerned investigating agency has submitted final form by giving a report that the accused persons as per the F.I.R. and the complaint petition are not fit to face agony of trial against which protest petition has been filed, but the said protest petition has also been rejected and thereafter this final form has been submitted as duly been accepted by the competent court of civil jurisdiction. The said order has never been assailed in the higher forum, hence even in the criminal case no allegation regarding coercion or compulsion for tendering her resignation as even of molestation found to be true. 4. The said order has never been assailed in the higher forum, hence even in the criminal case no allegation regarding coercion or compulsion for tendering her resignation as even of molestation found to be true. 4. While on the other, learned counsel for opposite party no.3 has vehemently argued out the case by defending the order passed by the Director, Higher Education by submitting that there is no infirmity in the order impugned, rather the Director has given well conscious finding by taking into consideration the fact that the signature has been obtained by the members of the governing body by coercion and compulsion and for that she even has been molested by them. He further submits that this fact is very much apparent that the resignation letter has not been sent from the district of Sambalpur which goes to suggest that the signature in the resignation letter has been obtained under coercion as has been alleged by her. The Director, Higher Education has taken it into consideration this aspect of the matter and by following the judgment rendered by Hon’ble Apex Court in the case of P. Kasilingam Vs. P.S. G. College of Technology in Civil Appeal No.493 of 1980, reported in AIR 1989 SC 789 has found the action of the authorities as illegal since in that judgment the proposition has been laid down that under coercion or compulsion if any signature has been obtained in the resignation letter the same will be said to be ab initio void. 5. In response learned counsel for the petitioner has submitted by rebutting the argument of the learned for the opposite party no.3 to the effect that the resignation letter has not been sent from the district of Sambalpur is incorrect, rather the resignation letter has been sent through registered post having been dispatched from the Sambalpur district, in order to substantiate his argument, he has brought on record the original registered envelope with AD along with the postal receipt which shows that the registered letter has been dispatched from the Sambalpur office bearing No.6945097 dtd.1.11.1997. 6. This court has heard the learned counsels for the parties and perused the documents available on record and considers it fit to answer t he rival submission of the parties. 6. This court has heard the learned counsels for the parties and perused the documents available on record and considers it fit to answer t he rival submission of the parties. The first ground taken by the learned counsel for the petitioner that this order is per se illegal on the ground that the governing body who is the appointing authority has not been impleaded as party. This argument however been disputed by the learned for the opposite party no.3 by saying that the governing body cannot be said to be the appointing authority of the appellant rather it is the secretary of the governing body who is appointing authority and the Secretary has been allowed to participate in the proceeding who has urged all the points available with the governing body, hence no prejudice has been cause. According to learned counsel for opposite party no.3 that she has been appointed by the decision of the governing body under the seal and signature of the secretary who is executing authority of the decision which is to be taken by the governing body. It is evident from the provision of powers and functions of the governing body vis-à-vis the secretary of the governing body has been provided under the provision of Orissa Education (Establishment, Recognition and Management of Private Junior Colleges/Higher Secondary Schools) Rules, 1991 (herein after referred to as Rules, 1991) wherein the rule 30 provides the power and functions of the governing body which reads as follows:- “30. Powers and functions of the Governing Body – Subject to the provisions of the Act and these Rules the Governing Body shall exercise the powers and discharge the functions as follows:- (a) To ensure proper management, maintenance and custody of the institution relating to land, building, equipment, funds of institution including loans and grants sanctioned by Government or any other authority; (b) To ensure sanitary conditions of the buildings and premises of the institution; (c) To ensure that instructions are imparted according to the standards prescribed by the Council and concerned authorities; (d) To ensure the appointment of teaching and non-teaching staff in accordance with the provision contained in the Act, Rules and instructions of the Department; (e) To ensure implementation of the provisions of the Act, Rules and instruction issued by the Department or the Director in the matter of conditions of service of staff relating to their appointment, salary, leave, pension provident fund, age of retirement and disciplinary action; (f) To ensure observance and compliance of instructions issued by Government, the Council and other concerned authorities regarding smooth management of the institution in all respects from time to time; (g) To maintain discipline in the institution; (h) To make proper arrangement regarding collection of fees and fines from the students and arrange for deposit of fees and fines in the Reeasurty/Bank, whenever required; (i) Award free-studentships, scholarships, stipends, prizes, rewards and punishments to students and staff in accordance with Rules and instructions of the Department or the Council; (j) To observe holidays and vacations according to instructions of the Department; (k) To ensure that the buildings, premises, furniture and equipments of the institutions are not used for any non-educational purpose nor for holding any meeting of political character or any special or other character for which the feelings of the community is likely to be divided excited; (l) To ensure continued fulfillment of the conditions of recognition; (m) To submit report and returns required by Government or the Director and the Council from time to time; (n) To provide reasonable facilities to the authorities appointed by Government for inspection.” Likewise the power of secretary has been provided under Rule 33 which is being reflected herein below:- “33. Secretary of the Governing Body – The Secretary of the Governing Body of a Junior College or Higher Secondary School shall be its Principal executive and shall be competent to (a) Make correspondence on behalf of the Governing Body; (b) Convene meeting of the Governing Body with the approval of the President and draw up the proceedings of each meeting and forward a copy of the same to the Director after confirmation; (c) Give effect to the decision of the governing Body and subject to its control, do all things incidental thereto; (d) Remain in charge of the properties, title deeds, documents and papers related to the deeds of the institution; (e) Make all payments and sign receipts other than receipts from fees and fines on behalf of the Governing Body; (f) Operate any account of the institution in any bank or Post Office; (g) Receive donations if so authorized by the Governing Body; and (h) Exercise such other powers and perform such other functions as may from time to time be assigned by Government.” It is evident from the provision of Rule 30 as well as Rule 33 of the Rules, 1991 that it is the governing body who is competent body to ensure the appointment of teaching and non-teaching staff in accordance with the provision contained in the Act, Rule and instructions of the department as would be evident from Rule 30(d). It is further evident from the provision of Rule 33 that the Secretary of the Governing Body of a Junior College or Higher Secondary School shall be its Principal executive and shall be competent to make correspondence on behalf of the Governing Body or convene meeting of the Governing Body or to give effect to the decision of the Governing Body, meaning thereby Secretary is not competent enough to take any decision rather it is the Governing Body to take decision which itself mean that the decision is to be taken by the body to take a cumulative decision of the members which form the part of the Body and the Secretary is the executive authority of the decision to be taken by the Governing Body. In view of the express provision as quoted herein above the governing body was required to be impleaded as party to the proceeding before the Direction, Higher Education. 7. In view of the express provision as quoted herein above the governing body was required to be impleaded as party to the proceeding before the Direction, Higher Education. 7. So far as the ground urged by the learned counsel for O.P. No.3 that since the Secretary has been heard by the Director, hence no prejudice has been caused, this argument has got no substance for the reason that there is no question of causing prejudice, rather it is question of impleading necessary party to the proceeding and it is settled that in absence of non-impleadment of necessary party, the proceeding will be said to be vitiated in the eye of law so far that party is concerned. In that view of the matter the ground urged by the learned counsel for the petitioner in this regard has got substance and on this ground the order of Director, Higher Education cannot be said to be justified. 8. So far as the merit of the case is concerned, the whole allegation leveled by opposite party no.3 that she has been forced to tender her resignation by raising unfair means even by molesting her to accede to the demand of the Governing Body and in that view of the matter she having no option has tendered her resignation, this aspect of the matter has seriously been disputed by the learned counsel for the petitioner, as would be evident from the ground taken by him as referred herein above. There is no dispute about the fact that if any illegal action is being alleged to have been committed by any of the parties, onus is upon the alleging party to justify the illegal action having been taken by any one against that party and to substantiate that it is incumbent upon her to make a complaint before the competent authority but record shows that no such complaint has ever been instituted by opposite party no.3 immediately so far as the allegation of taking her signature forcefully and by molesting her rather against the allegation of coercion and compulsion along with molestation has been leveled against the members of the Governing Body in the month of November, 1997 but the F.I.R. has been instituted on 23.6.1998 followed by a complaint petition before the competent court of jurisdiction for the offence U/ss.385, 342, 294, 354, 341, 506, 34 of the Indian Penal Code, but the police has submitted its report by submitting the final form finding the entire allegation as untrue and thereby found the accused persons not to face the trial against the protest petition has been filed by the opposite party no.3 but the same has also been rejected and ultimately the final form has been accepted, that order has not been challenged before the higher forum. This factual aspect suggests that the allegation leveled by the opposite party no.3 regarding the issue of taking her signature on the resignation by putting force and compulsion is found to be untrue. The Director has not taken into consideration this aspect of the matter since this fact has not been brought to his notice and the reason is evident that this fact could only be brought by the Governing Body since he has not been impleaded as party to the proceeding. 9. The Director has not taken into consideration this aspect of the matter since this fact has not been brought to his notice and the reason is evident that this fact could only be brought by the Governing Body since he has not been impleaded as party to the proceeding. 9. The other reason which also does not justify the order passed by the director is that he has given a finding to the effect that the resignation letter which has been said to be not sent from the Sambalpur post office but he has not given any finding to that effect that what led him to come to the conclusion regarding the suspicion of not sending the resignation letter from the district of Sambalpur while the fact is otherwise, that is the resignation letter has been sent from the Sambalpur head office as would be evident from the envelope along with the postal receipt dtd.1.11.1997 showing that the letter has been dispatched from the Sambalpur post office. The Director, while giving that finding, ought to have gone into the evidence before giving such finding, but he has not taken pain before arriving at a conclusion that the letter has not been sent from the Sambalpur post office. In that view of the matter and in the entirety of facts and circumstances of the fact since the opposite party no.3 has rendered her resignation which has well been accepted on 10.11.1997, as such it cannot be said to be an order of termination and the Director, Higher Education, by presuming the resignation as termination, has quashed the order by directing to re-instate her in service which according to the considered view of this court is illegal. 10. In the facts and circumstances as discussed herein above and in considered view of this court, the order passed by the Director, Higher Education is not sustainable in the eye of law, hence quashed. In the result the writ petition stands allowed.