Harpal Singh Dhingra vs Punjab Technical University & Ors
2010 Latest Caselaw 5741 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 16th December, 2010.

+                           W.P.(C) No.2540/2010

%        HARPAL SINGH DHINGRA               ..... PETITIONER
                     Through: Mr. H.S. Phoolka, Sr. Adv. with Mr.
                              Sharat Kapoor & Ms. Prabhsahay
                              Kaur, Advocates.

                                      Versus

         PUNJAB TECHNICAL UNIVERSITY & ORS..RESPONDENTS
                     Through: Mr. Harish Malhotra, Sr. Adv. with
                              Mr. Amrit Paul & Mr. Sandeep
                              Sharma, Advocates for R-1 to 5.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    NO

2.       To be referred to the reporter or not?             NO

3.       Whether the judgment should be reported            NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, appointed as an authorized Study Centre of the

respondent University under its Distance Education Programme for

conducting various Information Technology (IT) courses of the University

has filed this writ petition impugning the order dated 10 th February, 2010 of

the University holding that the term of the authorization letters earlier issued

to the petitioner and of the contract with the petitioner had already expired

and also terminating the authorization/contract with the petitioner for the

reason of the petitioner having indulged in activities detrimental to the

academic pursuits of a State Technical University and for the reason of the

Centre of the petitioner being a teaching shop for commercial gains and

bringing bad name to the University. The petition seeks restoration of the

status of the petitioner as the authorized center of the University and

direction to the University to refund/remit certain amounts, TDS Certificates

etc. to the petitioner.

2. The petitioner had earlier preferred W.P.(C) No.7327/2008 impugning

the order dated 3rd July, 2008 of the University suspending the petitioner's

Centre. During the pendency of that petition a cancellation order dated 24 th

October, 2008 was also served on the petitioner. The said writ petition was

dismissed vide order dated 24th October, 2008. The petitioner preferred an

Intra Court Appeal being LPA No.126/2009 which was disposed of vide

consent order dated 4th May, 2009 whereunder the University agreed to

withdraw the cancellation order dated 24th October, 2008 then issued to the

petitioner without issuing any show cause notice and to issue show cause

notice and to grant hearing to the petitioner before passing any fresh order.

However the orders suspending the Centre of the petitioner was allowed to

continue and it was further directed that the petitioner shall neither advertise

nor issue any Brochure or otherwise put up any signboard of the University.

3. Thereafter the University issued a show cause notice and gave hearing

to the petitioner and has thereafter passed a detailed order running into 14

pages cancelling the contract with the petitioner.

4. Aggrieved therefrom the present writ petition was filed. Notice

thereof was issued. A common counter affidavit has been filed by the

University and the other respondents and rejoinder whereof has been filed

by the petitioner.

5. Since the order impugned in this writ petition also recorded that the

term for which the petitioner was authorized to run the Study Centre of the

University had already expired, it was at the outset enquired as to in which

document was the said term prescribed. The senior counsel for the

respondents in this regard has drawn attention to a Certificate of

Authorization issued to the petitioner wherein the authorization of the

petitioner is shown to be from June, 2001 to May, 2006. Else, none of the

other documents filed show any such term. The senior counsel for the

petitioner has also contended that the calendar of the University also does

not provide for authorization for a certain period. It is further contended that

since the petitioner continued to be the authorized centre even after the year

2006, the term mentioned in the certificate is irrelevant and what has to be

seen by this Court is as to whether the reasons on which the cancellation has

been effected are made out or not.

6. In my view, the term mentioned in the certificate of authorization is

relevant. It shows that the parties knew that the authorization was for a

certain time only. The contract between the petitioner and the University is

of a nature which ordinarily is not specifically enforced. The same requires

work of a personal nature and involving minor details which cannot be

supervised by the Courts. It is also not as if the petitioner was entitled to

continue after 2006. The senior counsel for the petitioner admitted that a

suspension order was issued in 2006 also but was subsequently withdrawn

because the person who had issued the said order was not found to be having

a proper authorization to so act. Even if the suspension effected in the year

2006 suffered from technical flaws, the same nevertheless is also indicative

of the authorization of the petitioner being for a fixed period expiring in the

year 2006 and whereupon steps were taken to end the relationship with the

petitioner. The relationship between the parties being contractual,

irrespective of whether the grounds for cancellation existed or not, the

petitioner after the expiry of contractual period, has no right to continue as

the authorization centre of the University.

7. The gravamen of the case of the petitioner is that the action against

him is motivated and mala fide. It is contended that the University for its

Distance Learning Programme constitutes a Regional Learning Facilitating

Centre (RLFC) and there was one such RLFC in Delhi also. It is stated that

all was well till the year 2006 and neither the University nor its RLFC had

any grievance whatsoever against the petitioner. It is urged that thereafter

one Mr. Rajan Chopra (respondent no.3) took over the charge as Director,

RLFC at Delhi and realizing the commercial potential, in collusion with the

other officials of the University (impleaded as respondents no.4 & 5) set up

his own authorized centers of the University for the same courses for which

the petitioner was authorized and within the vicinity of the centre of the

petitioner; that however the said new centers were not able to compete with

the petitioner and said Mr. Rajan Chopra with a view to eliminate

competition from the petitioner devised the scheme for having the

authorization of the petitioner cancelled.

8. The petitioner in this writ petition has made detailed averments in this

regard. The respondents as aforesaid have filed a common affidavit and are

represented by the same Advocate. Taking a cue therefrom, the senior

counsel for the petitioner contended that collusion is evident from the

University joining hands with Mr. Rajan Chopra (respondent no.3) against

whom allegations of bias and mala fide have been made. It is urged that the

same shows that the suspension order, show cause notice as well as the final

order have been coloured by said Mr. Rajan Chopra to encourage his own

commercial interest to the detriment of the petitioner who has in the last

several years given the University a boost and a good name in Delhi.

9. As aforesaid, the cancellation order is voluminous and full of details.

It was enquired from the senior counsel for the petitioner as to how this

Court in writ jurisdiction can go into the facts. The senior counsel for the

petitioner relies on ABL International Ltd. Vs. Export Credit Guarantee

Corporation of India Ltd. (2004) 3 SCC 553 laying down that in a writ

petition also if the facts require consideration of the evidence, it can be taken

and merely because disputed questions of fact arise, is no ground for

dismissing the writ petition. There can be no dispute with the said

proposition. However in the same judgment also, it has been laid down that

in such circumstances, writ "will not normally be entertained". Neither has

the senior counsel for the petitioner been able to satisfy nor have I been able

to fathom from the file as to why an exception should be made out in the

present case.

10. This Court is not to sit in appeal over the findings of the University

against the petitioner and forming the basis of the cancellation of

authorization of the petitioner. The scope of writ jurisdiction is limited.

The Supreme Court recently in Jagdish Mandal Vs. State of Orissa (2007)

14 SCC 517 held that the power of judicial review will not be permitted to

be invoked to protect private interest at the cost of public interest or to

decide contractual disputes. It was also held that a writ petition in

contractual matters would be only if there is an element of public interest in

the litigation. The senior counsel for the petitioner however relying on

Kumaon Mandal Vikas Nigam Ltd Vs. Girja Shankar Pant (2001) 1 SCC

182 has contended that the writ would lie because bias is clearly made out in

the present case. However I am of the opinion that to arrive at unassailable

conclusion of bias is distinct from mere apprehension of bias; one will have

to first return a finding of fact and which exercise ought not to be ordinarily

done here. The petitioner has a remedy of a suit or arbitration as the case

may be available to him and I fail to see why an exception should be made.

It was held in DD Suri Vs. A.K. Barren (1970) 3 SCC 313 that even where

substance in allegation of mala fide is found, the proper course in a given

case may still be to seek relief by way of a suit if several disputed questions

of fact are required to be adjudicated.

11. The arguments of bias as are being raised here were raised by the

petitioner in response to the show cause notice and in the hearing given by

the University also. Notwithstanding the same, the Dean of the University,

the highest authority in the University has found the petitioner guilty.

Rather, strong words have been used in the order, of the continuation of the

petitioner as an authorized centre being detrimental to the academic pursuits

of a State Technical University; the petitioner having brought a bad name

and having become teaching shop for commercial gains by ignoring the

interest of students' community; the petitioner having not performed the role

as expected of a Centre of learning and having not protected the integrity in

education system.

12. The question which arises is, can this Court on its own assessment

thrust a Distance Learning Centre on the University which it does not want.

The welfare of the students of such a Distance Learning Centre requires

constant interface between such Centre and the University. Unless there is

feeling of bon homie and well being between such Center and the

University, the welfare of the students is likely to suffer and which ought to

be the primary concern of this Court. The private rights of the petitioner

even if any affected ought to give way to the public good. Even if there

were to be merits in the contention of the petitioner that after the petitioner

has popularized and created a demand for the courses of the University in

Delhi, he has been summarily removed to give benefit thereof to another, the

petitioner on proving such case can always seek compensation from the

University.

13. The senior counsel for the petitioner has contended that the mala fides

of the University are apparent from, i) fresh allegations being included after

the earlier order of cancellation was set aside by the Division Bench as

aforesaid, ii) the impugned order not dealing with the reply of the petitioner

to the show cause notice; iii) only few students being subject matter of show

cause notice and who had also passed out in the year 2006 and 2008, iv)

contradictory allegations in the complaints of the said students; v) the earlier

complaints against the petitioner being given a complete go by; vi) all the

complaints of the students referred to, being not supplied to the petitioner;

viii) the study centre of Mr. Rajan Chopra having the same flaws/defects as

imputed to the petitioner; viii) grievances of the students being attributable

to the University itself.

14. I have recorded the grievance urged only to show that the nature

thereof is factual. I do not deem it appropriate to deal with the said pleas as

the same may prejudice the case of the parties before the fora competent to

adjudicate the same. Suffice it is to state that from the material on record, I

am unable to gather any breach of procedure for making the order or any

perversity on which ground alone, interference would be called for.

15. The academicians cannot be expected to write orders as lawyers and

judges. Thus the argument of the order not dealing with each and every plea

in reply to the show cause notice has to be seen in the said light.

16. Else, petitioner inspite of repeated enquires has failed to show any

right to continue. The only answer which has come is that since the

respondent University is a "State" within the meaning of Article 12 of the

Constitution of India, it ought to act fairly and ought not to terminate its

contracts for oblique reasons. However, the relationship between the parties

was purely contractual and once the contract term has expired and after

complying with principles of natural justice the contract has been

terminated, this petition would not lie.

17. The senior counsel for the respondents has contended that the decision

of cancellation was taken upon finding that the petitioner had not been

following the norms of the University; it is contended that the petitioner has

increased the strength of centre from 1100 to 16000; that the petitioner in

violation of the University's norms was having as many as 132 students in a

class and it is virtually impossible to teach so many students in a class; it is

controverted that the complaints of the students relied on in the order were

not given to the petitioner; from the pleadings, it is shown that the pleading

is not of the same having not been given earlier but of having not been given

at the time of the show cause notice; no grievance in this regard were made

in the earlier writ petition or before the Division Bench. It is further

contended that the Institute of the petitioner was found without any lab for

Hotel Management and Bio Technology courses, having one lecturer for

Hotel Management course and lecturers for B.Sc. and M.Sc. Bio

Technology and other non-IT courses; that the petitioner also has admitted,

having collected fee from some of the students which was not submitted to

the University, amounting to misappropriation of University funds and

cheating the students; it is contended that the explanation of the petitioner of

taking Hotel Management students to the Hotels was not in consonance with

the norms of the University.

18. The writ petition is thus held not maintainable for the reason of

entailing disputed questions of fact and is dismissed with liberty to the

petitioner to approach the appropriate fora where such disputed questions of

fact can be adjudicated. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 16th December, 2010 bs