IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 WP(C).No. 37272 of 2009(D) -------------------------------- PETITIONER(S): --------------- THE PRINCIPAL MEDICAL COLLEGE, THIRUVANANTHAPURAM. BY MR. K.R. GANESH GOVERNMENT PLEADER RESPONDENT: --------------- DR. BIJOY.S., S/O. K.SURENDRA KURUP, 'UTHRADOM' THUNDATHIL.P.O.,KARYAVATTOM, THIRUVANANTHAPURAM. ADV. MR.VINOJ RAJAN FOR R1 MR.SUNNY ZACHARIA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37272 of 2009 PETITIONER'S EXHIBITS EXT.P1: COPY OF PROSPECTUS. EXT.P2: COPY OF DECLARATION DTD 19.6.2009 EXECUTED BY THE RESPONDENT. EXT.P3: COPY OF STATEMENT OF ATTENDANCE OF THE RESPONDENT. EXT.P4: COPY OF SAID LETTER DTD 30.6.2009. EXT.P5: COPY OF LETTER DTD 10.7.2009 ISSUED BY THE PRINCIPAL. EXT.P6: COPY OF THE COMPLAINT NO.927/09. EXT.P7: COPY OF STATEMETN OF FACTS FILED BEFORE THE LOK AYUKTA. EXT.P8: COPY OF SAID ADDITIONAL STATEMENT OF FACTS. EXT.P9: COPY OF SAID ADDITIONAL STATEMENT OF FACTS. EXT.P10: COPY OF REPLY DTD 7.10.2009. EXT.P11: COPY OF ORDER DTD 5.11.2009 OF THE HON'BLE LOK AYUKTA. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF EXTENSION PETITION FILED BY THE PETITIONER BEFORE THE HONORABLE LOK AYUKTA. EXT.R1(b): COPY OF PRINT OUT OF THE EXAMINATION RESULT OF THE RESPONDENT PUBLISHED BY THE NATIONAL BOARD OF EXAMINATIONS IN THE YEAR 2009. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------ W.P.(C) No.37272 OF 2009 ------------------------------- Dated this the 21st day of MAY, 2010 J U D G M E N T The petitioner in this writ petition is the Principal of the Medical College, Thiruvananthapuram. He is aggrieved by Ext.P11 order passed by the Kerala Lok Ayukta in Complaint No.927/09 filed by the respondent, in which the Lok Ayukta directed the petitioner to return the certificates and other records of the respondent retained by him apparently as security for payment of liquidated damages allegedly payable by the respondent as per the provisions of the prospectus pursuant to which the respondent obtained admission. After obtaining admission, he abandoned the course and requested for return of documents. Since the prospectus under which the admission was given contained a clause that a candidate, who discontinues the course after joining, is liable to pay liquidated damages amounting to Rs.5 lakhs to the Government, the same was demanded as a condition for returning the certificates and W.P.(c)No.37272/09 2 documents of the respondent. This is on the premise that after the last date fixed for closing admission if a candidate discontinues studies, then an eligible candidate would loose his right to study the course and the Government would also loose the fees payable by the respondent or another candidate who would have filled up that vacancy. 2. The learned Government Pleader on behalf of the petitioner would contend that the Lok Ayukta did not possess jurisdiction to entertain such a complaint. The action of the petitioner involved no mal-administration, the existence of which alone would give jurisdiction to the Kerala Lok Ayukta to entertain such a complaint, is his contention. 3. I have heard both sides. On 20.1.2010, this Court passed the following order in this writ petition: “Heard the learned Government Pleader for the writ petitioner and the learned counsel for the respondent. 2. As per Ext.P11, the Lok Ayukta directed the writ petitioner herein to release the certificates to the respondent/complainant. It was also held that even if the certificates are given back to the respondent/complainant, the writ petitioner can realise liquidated damages in case the complainant is liable to pay damages. 3. The learned Government Pleader submitted that going by the prospectus, the writ petitioner has got a liability to pay liquidated damages to the tune of Rs.5 lakhs. 4. It is clear that so far no adjudication is made with regard to the liability to pay W.P.(c)No.37272/09 3 liquidated damages. 5. In the counter affidavit filed by the respondent it is pointed out that he has obtained admission to Diplomate National Board Programme (DNB) conducted by the National Board of Examinations and, therefore, certificates are required for joining the said programme. It is submitted that the last date prescribed for submitting the certificates is already over on 14/01/2010. 6. Therefore, there will be a direction to the petitioner that the certificates retained by the petitioner will be released to the respondent within a period of one week from the date of production of a copy of this order. The same will be subject to further orders to be passed in the writ petition. In view of the said order, the question as to whether the Lok Ayukta has jurisdiction to entertain the complaint or whether the certificates have to be released to the respondent becomes irrelevant. What now remains is as to whether the Government is entitled to recover liquidated damages as claimed by them from the respondent. 4. The learned counsel for the respondent would raise a contention that the question of payment of liquidated damages would arise only if the respondent had executed a bond for the purpose which the petitioner had not. According to the learned Government Pleader that would put the respondent in worse position since he deliberately did not execute the bond, which he was as per the prospectus, legally liable to and on that ground also he has committed breach of W.P.(c)No.37272/09 4 the conditions of the prospectus. 5. I am not going into the disputed question as to the liability of the respondent to pay liquidated damages or the right of the petitioner to recover it from the respondent in so far as those are matters which require evidence for resolution. The question as to what is the liquidated damages payable itself is a question of fact which has to be decided on the basis of the evidence regarding the damage suffered by the petitioner or the Government. All these facts have to be proved before a Forum where both parties can adduce evidence. Certainly, ordinarily the writ petition is not a remedy for that. More appropriately, the matter has to be agitated in a Civil Court where appropriate evidence can be adduced to in the matter. In the above circumstances, without going into the correctness of the order of the Lok Ayukta and without prejudice to the right of the petitioner to seek his remedies in a suit, this writ petition is closed, leaving open all the contentions of the parties. S. SIRI JAGAN, JUDGE acd W.P.(c)No.37272/09 5 W.P.(c)No.37272/09 6