IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 WA.No. 32 of 2007() ------------------- AGAINST THE JUDGEMENT IN WPC.13985/2005 Dated 14/07/2006 .................... APPELLANT(S): PETITIONER ------------------------ DR.INDU RAJ, LECTURER IN PROSTHODONTICS, GOVERNMENT DENTAL COLLEGE, THIRUVANANTHAPURAM. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): RESPONDENTS -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE PRINCIPAL, GOVERNMENT DENTAL COLLEGE, MEDICAL COLLEGE CAMPUS, KOZHIKODE. GOVERNMENT PLEADER SMT. K. MEERA FOR R1 TO 3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR C.J & ANTONY DOMINIC, J. ------------------------------------------------------------------ W.A.NO.32 OF 2007 ------------------------------------------------------------------- Dated this the 21st day of February, 2011 J U D G M E N T J. Chelameswar, CJ Aggrieved by the judgment dated 14th July 2006 in Writ Petition No.13985/2005, the unsuccessful writ petitioner preferred the appeal. 2. The facts of the case are as follows; 3. The appellant joined the MDS (Master of Dental Surgery) course in Oral Pathology in the 3rd respondent college, in the year 2003. At the time of joining the course, the appellant executed a bond in Ext.P1, by which the appellant incurred certain obligations. While the appellant was pursuing her course, she secured appointment as Lecturer in the service of the State of Kerala by communication dated 1.10.2004 and was eventually appointed on 13.10.2004. 4. While the appellant was in service, she was once again selected in the year 2005 for a seat in MDS Course, this time under a quota earmarked for the candidates in the service of the State of Kerala. At that stage, when the appellant sought a transfer certificate, the 3rd respondent by communication dated WA.No.32 /2007 :2 : 4.11.2004 called upon the appellant for the remission of Rs.1,10,024/-, undertaking one of the conditions stipulated in Ext.P1, which reads as follows; “Now the condition of the above written obligation is that in the event of the Bounden not conforming to or observing the rules and conditions, regarding the progress of his study or interrupting or discontinuing his course, at any time after a period of one month from the date of admission or participating in a strike or leave the training course on account indiscipline or misconduct on his part of failing to serve the Government for a period of five years if required to do so within a period of six months after qualifying for full registration after completing the course, or for other reasons not considered valid and satisfactory by the Secretary to Government of Kerala, Health and Family Welfare Department whose decision in this behalf shall be final, the Bounden and the sureties shall jointly and severally pay and refund to the Government on demand and without demur all the amount spent on the Bounden on account of the said course of studies, together with the liquidated damages of Rs.20,000/-. This decision of the Secretary to Government of Kerala, Health and Family Welfare Department as to the commission of a breach or as to any indiscipline or misconduct on the part of the Bounden as also the amount of compensation payable and as to whether the Bounden has or has not performed and observed the conditions and Bounden obligations under these presents shall be final and binding on the Bounden and the sureties. “ 5. Appellant paid the said amount under protest. Thereafter, the appellant made a representation to the Government, which was rejected by Ext.P9 order dated 18.4.2005. Therefore, the writ petition was filed with the prayers WA.No.32 /2007 :3 : as follows; “i. To call for the entire records leading to the issuance of Exts.P4,P5 and P9 and to issue a writ of certiorari quashing Exts.P4,P5 and P9. ii. to declare that the petitioner has discontinued the MDS Course for Oral Pathology for valid and reasonable grounds and there is no reasonable justification for forfeiting the bond and directing to pay damages and the stipend already drawn. iii. to issue a writ of mandamus commanding and compelling the 3rd respondent to issue transfer certificate to the petitioner so as to enable her to produce the same before the Director of Medical Education, Trivandrum and make her admission to MDS Course absolute. iv. to issue an interim stay of all further proceeding pursuant to Ext.P9 and to issue the Transfer Certificate; to the petitioner.” 6. By the judgment under appeal, this court dismissed the writ petition, the operative portion of the judgment reads as follows; “Going by the above quoted clause in Ext.P1, the contention of the petitioner that simple discontinuance of the course will not attract any liability, cannot be accepted. The above clause is wide enough to attract liability even in the case of simple discontinuance. But the petitioner would point out that the 3rd respondent Principal is not competent to call upon her sureties to pay the amount. I find that the Government have also upheld the action of the 3rd respondent, while rejecting the petitioner's representation. Though Ext.P9 is not a speaking order, there is no point in remanding the matter since I am of the firm view that the petitioner does not have any case on merits. Accordingly, the Writ Petition fails and it is dismissed.” WA.No.32 /2007 :4 : 7. The learned counsel for the petitioner also argued that the language of the relevant clause of Ext.P1(which already extracted above), contemplates an application of mind on the part of the Secretary to Government of Kerala, to arrive at a conclusion that there was breach of the contractual obligations on the part of the student. The learned counsel further argued that the above clause cannot be invoked blindly in every case, where there is a discontinuance from the course of study, burdening the students with the liability of either the liquidated damages or the amount spent on the students. Secondly, the learned counsel argued that an amount of Rs. 90,000/- sought to be recovered from the appellant, as amounts spent on the appellant, admittedly is an amount of stipend paid to the appellant and all other students similarly situated for the service rendered by them in the hospital while pursuing their course of study and therefore the payment in essence is a remuneration for the service rendered but not an amount incurred or spent by the State. Thirdly, the learned counsel submitted that, the decision to invoke the contractual obligation demanding remittance of the liquidated damages and also the amounts spent on the student, is to be taken by the Secretary in view of the express language of WA.No.32 /2007 :5 : the contract but in the instant case such a decision was taken by the Principal and therefore the decision is not authorized by law. 8. From the relevant clause of contract already extracted, it can be noticed that there are various contingencies under which a student bound by the contract can be called upon to remit the amount mentioned therein. The contingencies are I. The student not conforming to or observing the rules and conditions regarding the progress of the study. II. Interrupting or discontinuing the course at any time after a period of one month from the date of admission. III. Participating in a strike or leaving the training course on account of indiscipline or misconduct IV. Failure to serve the Government for a period of 5 years, if so demanded by the Government within a period of 6 months after completion of the course. V. For other reasons, which are not considered valid and satisfactory by the Secretary to the Government of Kerala, Health and Family Welfare Department. 9. We agree with the submission made by the learned counsel for the appellant to the extent that whether there was a breach of contractual obligations on the part of the student or not WA.No.32 /2007 :6 : is a question of fact. Whether, the student incurred the liability on account of the breach of the contract and if so what of the circumstances under which such liability arose is also always a question of fact, in view of the various contingencies specified in the contract. Therefore, a decision by the Secretary to Government of Kerala as to the existence of the necessary facts in a given case to recover the amounts is necessary. However, even in a case where there is an undisputed discontinuance in the course of study after a period of one month from the date of the admission. It is possible that such situation is brought about for reasons beyond the control of a student in which case, whether such discontinuance would render the student liable for the damages as contemplated under the contract is doubtful. Under the law of contracts a party to a contract is relieved of his obligations arising under such a contract under certain circumstances such as frustration of the contract, vis major etc. 10. However, the facts of the case on hand are such that it is not a case of the appellant that there is no breach of contract on the part of the appellant nor is it the case of the appellant that there exist the circumstances which are beyond the control of the appellant or for any other reason known to law, the petitioner WA.No.32 /2007 :7 : is relieved of his contractual obligations. The appellant discontinued the course in view of the employment she secured. The appellant had a choice in law either to discontinue her course of studies or secure employment. Therefore, it cannot be said that the situation was brought out by the circumstances which are beyond her control. In the circumstances, an independent assessment of the situation whether to invoke penal clause of the Contract, in our opinion will be a futile exercise. Even on the question that the invocation of the penal clause is by the Principal of the 3rd respondent college but not by the Secretary of the State of Kerala, the learned Judge by the judgment under appeal recorded that such objection is required to be refuted, in view of the fact that the representation made by the appellant stood rejected under Ext.P9 by the Secretary. 11. Coming to the submission made by the learned counsel for the appellant that an amount of Rs.90,000/- recovered from the appellant represents the remuneration paid for the service rendered by the appellant, while pursuing her course of Post Graduation but not the amount spent on her, we are of the opinion that such payment is necessitated by virtue of the requirement of the course, which not only contemplates the WA.No.32 /2007 :8 : theoretical training but also practical training for attending the patients, either rendering or giving assistance for rendering the appropriate treatment to the said patients. Therefore, in our opinion, such a payment would amount to expenditure incurred by the state on account of the “said course of Studies.” In the circumstances, the learned Judge by the judgment under appeal rightly declined to exercise the discretion vested under Article 226 of the Constitution of India. Having regard to the facts of the case, we see no reason to interfere with the same. Writ Appeal is dismissed. J. CHELAMESWAR (CHIEF JUSTICE) ANTONY DOMINIC ( JUDGE) vi/