IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 WP(C).No. 31002 of 2007(N) ---------------------------------- PETITIONER: ---------------- RAMLA MAKKAR, W/O.MAKKAR, AGED 40 YEARS, PAKKATTUMOLE(H), AYOORPADAM P.O. KOTHAMANGALAM. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENTS: ------------------ 1. THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT SUPERINTENDENT OF POLICE, KOZHIKODE. 3. THE VICE CHANCELLOR, UNIVERSITY OF CALICUT, THENJIPALAM, KOZHIKODE. 4. THE PRINCIPAL, KMCT ENGINEERING COLLEGE, KALLANTHOLE P.O. MANASSERY, KOZHIKODE. 5. THE ADMINISTRATOR, KMCT COLLEGE OF ENGINEERING, I.G.ROAD, KOZHIKODE. ADDL.R6 AND R7 ARE IMPLEADED 6. THE DISTRICT SUPERINTENDENT OF POLICE KOZHIKODE (RURUAL) KOZHIKODE W.P.(C) NO.31002/2007 7. THE SUB INSPECTOR OF POLICE, MUKKAM POLICE STATION, MUKKAM, KOZHIKODE . ADDL. R6 AND R7 ARE IMPLEADED AS PER ORDER DT.19.10.2007 IN IA. 14006/07. BY SR. GOVERNMENT PLEADER SRI.P.N.SANTHOSH BY ADV. SRI.MILLU DANDAPANI BY SRI.P.C.SASIDHARAN SC FOR UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2007, THE COURT ON 02/01/2008 DELIVERED THE FOLLOWING: W.P.(C) NO.31002/2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1:- COPY OF THE FEE RECEIPT DT. 14.8.07 ISSUED BY THE 4TH RESPONDENT. EXT.P2:- COPY OF THE COMPLAINT DT. 15.10.07 MADE BY MY HUSBAND P.S. MAKKAR TO THE 4TH RESPONDENT. RESPONDENTS EXHIBITS EXT.R4(1):- COPY OF THE COMPLAINT LODGED BY the PETITIONER'S SON ON 3.10.07 BEFORE THE RESPONDENT. EXT.R4(2):- COPY OF THE ORDER ISSUED BY THIS RESPONDENT ON 4.10.07. EXT.R4(3):- COPY OF THE NOTICE DT. 4.10.07 ISSUED BY THIS RESPONDENT TO THE STUDENTS INVOLVED IN THE INCIDENT AS ALLEGED BY THE PETITIONER. EXT.R4(4):- COPY OF THE REPORT DT. 5.10.07 SUBMITTED BY THE ENQUIRY COMMITTEE TO THIS RESPONDENT. EXT.5(5):- COPY OF THE SUCH LETTER ISSUED BY THE STUDENT AS WELL AS THE UNDERTAKING GIVEN BY THE PARENT OF THAT STUDENT. EXT.R4(6):- COPY OF THE REPLY TO EXT.P2 ISSUED BY THIS RESPONDENT. EXT.R4(7):- COPY OF THE APPLICATION FORM SIGNED BY PETITIONER'S SON AND DECLARATION SIGNED BY THE PETITIONER 14.8.07. /TRUE COPY/ P.A. TO JUDGE tss ANTONY DOMINIC, J. =============== W.P.(C) NO. 31002 OF 2007 N ===================== Dated this the 2nd day of January, 2008 J U D G M E N T Petitioner's son Sri.Mohammed Shan, was admitted in the 4th respondent College for B.Tech. It is stated that at the time of admission, they had paid Rs.2.25 lakhs towards capitation fee/donation and Ext.P1 receipt shows that they had also paid an amount of Rs.74,405/-. On joining in the college, he was admitted in a hostel by name Hira Hostel on the 27th September 2007. It is alleged that on 28/9/07 morning, four senior students of the college came to his room and ragged him, severely inflicting physical and mental torture. Thereupon, the student rang up his relation, who contacted the warden of the hostel and requested for lodging a police complaint. The warden assured him all safety and security of the student, but then the assurance was proved to be futile when the ragging repeated on 4/10/2007 WPC 31002/07 :2 : evening at about 7.50 P.M when six senior students allegedly tortured the child physically and mentally. The child was threatened against making any complaint to the authorities. On being informed, the Warden was again contacted in the same evening with a request to report the matter to the police. It is stated that this also did not yield any result and the situation continued as before on 5/10/2007. As a result of the continued ragging, it was not possible for the child to continue his studies and he informed his father employed in Quatar and requested him to save his life. Thereupon, the father came to Kerala, contacted respondents 4 and 5, who were indifferent to the fervent pleas made by the father and the student. In these circumstances, the parents were convinced that the child cannot continue his education in the college and finally, they submitted Ext.P2 complaint requesting inter alia for returning the fees and original certificates and other amounts collected from them. Even as there was no response to this complaint, this writ petition was filed. 2. The prayers made in this writ petition are for directing WPC 31002/07 :3 : the authorities to take action not only against the students involved, but also against the College authorities. There is a further payer to direct the respondents 4 and 5 to return the certificates entrusted to them on admission and also refund Rs.2.25 lakhs collected towards capitation fee and also Rs.74,405/- towards fees. Petitioner is also seeking compensation of Rs.2 lakhs. 3. In view of the allegations in the writ petition, notice was ordered to be served on respondents 4 and 5, who have filed a counter affidavit. In the counter affidavit while they deny the allegation of having collected capitation fee/donation, they admit receipt of Rs.74,405/- as tuition fee. It is stated that the petitioner's child had submitted Ext.R4(1) complaint on 3/10/2007 and that based on the complaint, an enquiry committee consisting of three teachers was constituted by Ext.R4 (2) with a direction to conduct a detailed enquiry and submit report within 24 hours. It is stated that notice was issued to the students “who indulged in the above act” and directed them to report with their parents and Ext.R4(3) is the notice. According to WPC 31002/07 :4 : the 4th respondent, the Committee conducted a detailed enquiry, heard the students, “who were involved in the incident” and Ext.R4(4) report was submitted. It is also stated that based on the report “this respondent took undertaking from the parents of the students who were alleged to be involved in the act and also got unconditional apology letter from these students”. Ext.R4(5) is the copy of the undertaking so obtained. On this basis, it is contended that the allegation of ragging on 4/10/2007 and 5/10/2007 is incorrect as according to the 4th respondent, enquiry was going on these two days. It is also stated that “as the matter stood and situation was brought under the control and being monitored under the supervision of this respondent”, they were surprised to receive Ext.P2 letter from the petitioner making allegations of recurrence of the incident. The counter affidavit concludes by stating that in view of Ext.R4(7) if the student discontinues the course for any reason, he is bound to pay the entire tuition fee. Therefore, according to the respondents, even if the student wants to go away, he cannot ask for refund of the amount paid, but has to pay entire tuition fee for return of the WPC 31002/07 :5 : documents. 4. When the writ petition was taken up for hearing, while counsel for the petitioner reiterated the complaint of continued ragging and consequential inability of the student to continue in the College, counsel for the 4th respondent was vehemently denying those allegations. During the course of the submissions, he had also stated that College is not against returning the documents, but the student has to comply with Ext.R4(7) undertaking that he has given at the time of admission. 5. In view of this, what calls for decision is whether the management can justifiably demand that the student should comply with the undertaking he has given for return of the documents particularly in the circumstances that are available in this case. 6. According to the petitioner, the reason for the discontinuance of course was the continued ragging that has occurred. It is true that the respondents 4 and 5 have denied this averment. On a reading of the counter affidavit and also the documents produced along with the affidavit, I am inclined to WPC 31002/07 :6 : think that the anxiety of the 4th respondent is more to protect himself rather than to remedy the situation. I am also inclined to think that what the 4th respondent says is not fully correct. 7. In the counter affidavit, the 4th respondent has totally denied the allegations of ragging and for this purpose is entirely relying on Ext.R4(4) enquiry report. A reference of Ext.R4(4) shows that it is a very unsatisfactory report. An enquiry report cannot be more laconic and in the counter affidavit, while the report is described as a detailed one, there is absolutely no reasons given for the conclusions in the report nor has the Committee adverted to the materials they say they have collected. 8. It totally remains a mystery as to why six senior students in the college visited the room of the petitioner's child, a fresh student in the college. It is unimaginable as to why the whole crowd should visit the room of a fresher in search of a text book. This conduct of the students is not beyond shadow of doubt and I am surprised that the Committee did not find anything unnatural in this and has fully exonerated the students. WPC 31002/07 :7 : 9. If what the Committee and the Principal says is to be believed, it again is a mystery as to why they should have obtained Ext.R4(5) undertaking from the students and also from the parents concerned. The undertaking is to the effect that “In the near future, any act of ragging will never happen from my part. I apologise for whatever has happened yesterday”. To any sensible mind, the wording of this undertaking would sound as one suggesting that before giving this undertaking, ragging has infact taken place. Otherwise, if the students are as innocent as the 4th respondent would want this court to believe, the students need not have apologised for whatever that had happened on the previous day. 10. Equally apologetic is the undertaking of the parent on Ext.R4(5). If the students have not committed any act of delinquency, the parent would not have left it totally free to the College authorities to take any action against the students in future. Therefore, going by Ext.R4(5), I am inclined to take the view that what the 4th respondent has disclosed in his affidavit is not fully correct. I am also unsatisfied in the manner in which WPC 31002/07 :8 : the Committee has dealt with this issue. 11. At the same time, in view of the denial of the 4th respondent of having collected the capitation fee/donation, I am not able to conclude this issue in favour of the petitioner. Similarly, the petitioner's claim of compensation also is unsustainable. If at all the petitioner feels that in view of any damage that has been caused they should be compensated, it is for the petitioner to adduce evidence and establish her case before a Civil Court. Such claims cannot be decided in a writ petition and that too based only on the affidavits of the rival contestants. 12. Similarly in so far as the first prayer in the writ petition to take action against the college and the student concerned, in view of the lapse of time, that has passed from the date of occurrence, I am not inclined to grant that relief although I am not satisfied with the conduct of the 4th and 5th respondents. 13. Resultantly, I am inclined to dispose of this writ petition directing that respondents 4 and 5 shall return all the certificates of the petitioner's son along with the fee of WPC 31002/07 :9 : Rs.74,405/- acknowledged by them in Ext.P1, without insisting on the petitioner or the student complying with Ext.R4(7) undertaking given by the student. In view of the above, the writ petition will stand allowed and respondents 4 and 5 will refund the fee collected from the petitioner and return the documents to him, as expeditiously as possible, at any rate within one week of production of a copy of this judgment. ANTONY DOMINIC, JUDGE. Rp