Case: LALITHA R NATH AND OTHERS Vs. KANNUR MEDICAL COLLEGE AND OTHERS

Middle class parents do not have the luxury of resources. We must form a robust understanding of the circumstances in which the father of the petitioner withdrew his complaint. The Committee has in fact recorded a finding of fact that the withdrawal was not voluntary and was occasioned by the serious impediment in receiving a refund of fees. Hence, the petitioner would be entitled to the benefit of the principle which was formulated in the orders of this Court dated 29 August 2018 and 4 October 2018. Since the issue has been remitted back to the Committee by a coordinate bench, following the norm of judicial discipline, we are inclined to follow the same course of action. 28. In order not to prejudice the case of the petitioner, we leave it open to her to pursue her claim before the Committee. The petitioner would be at liberty to pursue her claim before the Committee in terms of Clause 1 of the order dated 29 August 2018 passed by this Court as clarified by the subsequent order dated 4 October 2018. We request the Admissions Committee to take a decision expeditiously and within a period of three months of the receipt of a certified copy of this judgment. All the rights and contentions of the parties are kept open. 22. The impugned order dated 22nd November, 2019 does not refer to or examine the order dated 21st February, 2019 passed by this Court in the case of Riya George. This apart, it was accepted during the course of arguments before us that KMC has paid a total amount of Rs.38,35,63,000/- to the guardians/students. Rs.36,09,87,000/- has been paid to the guardians/students for refund of the actual tuition fee and other amounts which were admittedly paid. These payments were made on or before 4th October, 2018, i.e. the date on which the second order was passed by this Court with the observations that there is a factual dispute as to the total amount paid by the students to KMC. After 4th October, 2018, KMC has, in its affidavit filed on or about 3rd February, 2021, accepted that it had remitted an amount of Rs.2,25,76,000/- to the students who had settled their disputes before the ASC. These payments have been made through demand drafts. It is also accepted that KMC is still to make payment of Rs.15,72,89,020/- which is an undisputed figure payable to guardians/students as per the amount determined by the High Court or ASC. This is the final and undisputed figure as it refers to the amount payable to about 55 students in terms of the orders passed by the High Court and the ASC, which direction and computation has not been challenged by the KMC before this Court or before the High Court. 23. Once we accept the appeal against the impugned order dated 22nd November, 2019, we have to also accept the appeal against the second impugned order dated 29th May, 2020. The latter order that directs the College to furnish a bank guarantee of Rs.10 crores is predicated on the assumption that no further amounts would be due and payable in respect of 92 students as the notices issued by the ASC to these students have been quashed. Further, the impugned order does not notice that KMC had failed to make payment even in cases where it had accepted the orders passed by the ASC or the High Court. As noticed above, KMC, before us, has accepted that they had to make payment of Rs.15,72,89,020/- as per the amount finally awarded by the High Court or the ASC. KMC has not filed any appeal to question and challenge these orders. Therefore, this amount of Rs.15,72,89,020/- must be immediately paid to the students/guardians. This figure of Rs.15,72,89,020/- gives us an indication and is the basis of the directions that we propose to issue to secure the interests and rights of the 92 students, while permitting admission/affiliation in the College. 24. We have already referred to the two orders passed by this Court on 29th August, 2018 and 4th October, 2018 which had inter alia directed that double the fee paid by the guardians/students would be refunded by KMC through electronic mode. Obviously, the intent being that the payment must be made. In order to ensure that payment is actually made, specific directions were issued that the amount would be remitted to the bank account of each student. Further, a compliance report including bank statement, bank account numbers with the names of the students was to be filed before this Court and also the ASC. The ASC was thereupon to ascertain and submit the report to this Court as to refund of the amounts to the students in their bank accounts. In order to ensure prompt payment and also by way of penalty, KMC was directed to not admit even a single student for the year 2019-20 other than the students allotted by the CEE in their counselling to be held on 4th and 5th of September 2018. It was further directed that in case of violation of the order, i.e. non-refund of double the amount of fee paid, the entire order shall be withdrawn. Paragraph 2 of the order dated 29th August, 2018 had, by consent, recorded that KMC had agreed that the order of the ASC for withdrawal of the affiliation shall not be acted upon if the directions given for refund of double the fee, etc. by way of consent were complied with. It obviously means that the order of withdrawal of affiliation would remain in operation until and unless there was full compliance by KMC. In case of non-compliance, the order passed by the ASC for withdrawal of the affiliation would continue. We do not, therefore, find anything wrong in the letter dated 29th April, 2020 whereby KUHS has rejected KMCs application for continuation of affiliation for the academic year 2020-21 as it is a necessary sequitur and consequence of the two orders passed by this Court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]21. The impugned order dated 22nd November, 2019 quashing the re- opening notices issued by the ASC in the case of 92 students for several reasons is liable to be set aside. The said 92 students were not made parties to the writ petition preferred by KMC before the High Court and were not heard on the stand and stance with regard to receipts or No Dues Certificates signed by them. This Court in its order dated 4th October, 2018 had referred to the report of the ASC inter alia recording that KMC had collected different amounts ranging from Rs.35 lakhs to Rs. 1 crore from most of the 150 students. The report referred to one particular case of Ms. Rehna Banu who had paid Rs.35 lakhs for admission. The report also noticed that the tuition fee to be paid was regulated by the Fee Regulatory Committee, albeit the students had paid different amounts in addition to the tuition fee for securing admission. Accordingly, on account of the seriously disputed facts, this Court had directed that these aspects would be examined by the ASC. Liberty was given to the guardians/ students to place relevant material before the ASC. This Court did not consider it appropriate to conduct a factual inquiry into the disputed facts on the aspect of total amount paid and adequacy of the refund. The Division Bench of the High Court, by allowing the writ petition filed by KMC and by quashing the notices issued by the ASC to 92 students, has virtually made this Courts order dated 4th October, 2018, a dead letter in the case of those 92 students. In the aforementioned case of Riya George, a Division Bench of this Court had dealt with an identical controversy – as in its defence, KMC had relied on the No Dues Certificate, along with the application and affidavit of the father of Riya George withdrawing all claims in lieu of payment of Rs. 20 lacs, and the order of the Chairperson of the Admission Fee Regulatory Committee allowing withdrawal of the complaint. The court also lamented failure of Riya George to make fair and candid disclosure of full facts in the writ petition. In spite of observing that there were sufficient indications to hold that Riya George/ her father had knowledge of what had transpired, the judges took notice of the contention that the claim was withdrawn under duress, since the petitioner therein required refund of fee as she had taken admission elsewhere. Referring to the two orders dated 29th August, 2018 and 4th October, 2018, it was held that it would be inappropriate for this court to compute damages. Accordingly, given that the ASC had already issued notice to examine facts, it was held:27. There can be no manner of doubt that the petitioner is entitled to be compensated for the loss of a valuable year which was occasioned by the misdemeanours of the first respondent. A student who has been deprived of a valuable year in pursuing her studies, cannot be left in the lurch. It is in this background, that the explanation that the complaints made by the father of the petitioner were withdrawn only because there was an urgent need to obtain a refund of the fee, to enable the petitioner to secure admission to the Amrita Institute of Medical Sciences must be understood. Middle class parents do not have the luxury of resources. We must form a robust understanding of the circumstances in which the father of the petitioner withdrew his complaint. The Committee has in fact recorded a finding of fact that the withdrawal was not voluntary and was occasioned by the serious impediment in receiving a refund of fees. Hence, the petitioner would be entitled to the benefit of the principle which was formulated in the orders of this Court dated 29 August 2018 and 4 October 2018. Since the issue has been remitted back to the Committee by a coordinate bench, following the norm of judicial discipline, we are inclined to follow the same course of action.28. In order not to prejudice the case of the petitioner, we leave it open to her to pursue her claim before the Committee. The petitioner would be at liberty to pursue her claim before the Committee in terms of Clause 1 of the order dated 29 August 2018 passed by this Court as clarified by the subsequent order dated 4 October 2018. We request the Admissions Committee to take a decision expeditiously and within a period of three months of the receipt of a certified copy of this judgment. All the rights and contentions of the parties are kept open.22. The impugned order dated 22nd November, 2019 does not refer to or examine the order dated 21st February, 2019 passed by this Court in the case of Riya George. This apart, it was accepted during the course of arguments before us that KMC has paid a total amount of Rs.38,35,63,000/- to the guardians/students. Rs.36,09,87,000/- has been paid to the guardians/students for refund of the actual tuition fee and other amounts which were admittedly paid. These payments were made on or before 4th October, 2018, i.e. the date on which the second order was passed by this Court with the observations that there is a factual dispute as to the total amount paid by the students to KMC. After 4th October, 2018, KMC has, in its affidavit filed on or about 3rd February, 2021, accepted that it had remitted an amount of Rs.2,25,76,000/- to the students who had settled their disputes before the ASC. These payments have been made through demand drafts. It is also accepted that KMC is still to make payment of Rs.15,72,89,020/- which is an undisputed figure payable to guardians/students as per the amount determined by the High Court or ASC. This is the final and undisputed figure as it refers to the amount payable to about 55 students in terms of the orders passed by the High Court and the ASC, which direction and computation has not been challenged by the KMC before this Court or before the High Court.23. Once we accept the appeal against the impugned order dated 22nd November, 2019, we have to also accept the appeal against the second impugned order dated 29th May, 2020. The latter order that directs the College to furnish a bank guarantee of Rs.10 crores is predicated on the assumption that no further amounts would be due and payable in respect of 92 students as the notices issued by the ASC to these students have been quashed. Further, the impugned order does not notice that KMC had failed to make payment even in cases where it had accepted the orders passed by the ASC or the High Court. As noticed above, KMC, before us, has accepted that they had to make payment of Rs.15,72,89,020/- as per the amount finally awarded by the High Court or the ASC. KMC has not filed any appeal to question and challenge these orders. Therefore, this amount of Rs.15,72,89,020/- must be immediately paid to the students/guardians. This figure of Rs.15,72,89,020/- gives us an indication and is the basis of the directions that we propose to issue to secure the interests and rights of the 92 students, while permitting admission/affiliation in the College.24. We have already referred to the two orders passed by this Court on 29th August, 2018 and 4th October, 2018 which had inter alia directed that double the fee paid by the guardians/students would be refunded by KMC through electronic mode. Obviously, the intent being that the payment must be made. In order to ensure that payment is actually made, specific directions were issued that the amount would be remitted to the bank account of each student. Further, a compliance report including bank statement, bank account numbers with the names of the students was to be filed before this Court and also the ASC. The ASC was thereupon to ascertain and submit the report to this Court as to refund of the amounts to the students in their bank accounts. In order to ensure prompt payment and also by way of penalty, KMC was directed to not admit even a single student for the year 2019-20 other than the students allotted by the CEE in their counselling to be held on 4th and 5th of September 2018. It was further directed that in case of violation of the order, i.e. non-refund of double the amount of fee paid, the entire order shall be withdrawn. Paragraph 2 of the order dated 29th August, 2018 had, by consent, recorded that KMC had agreed that the order of the ASC for withdrawal of the affiliation shall not be acted upon if the directions given for refund of double the fee, etc. by way of consent were complied with. It obviously means that the order of withdrawal of affiliation would remain in operation until and unless there was full compliance by KMC. In case of non-compliance, the order passed by the ASC for withdrawal of the affiliation would continue. We do not, therefore, find anything wrong in the letter dated 29th April, 2020 whereby KUHS has rejected KMCs application for continuation of affiliation for the academic year 2020-21 as it is a necessary sequitur and consequence of the two orders passed by this Court.