Ruchika Yadav And Ors vs Pandit Deendayal Upadhyaya ...
2012 Latest Caselaw 1998 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                   Judgment reserved on:     20.03.2012

%                  Judgment delivered on:    23 .03.2012

+                               W.P.(C) 240/2010

       RUCHIKA YADAV AND ORS                    .....           Petitioner
                   Through: Petitioners in person

                     versus


       PANDIT DEENDAYAL UPADHYAYA INSTITUTE FOR
       PHYSICALLY HANDICAPPED AND ANR          ..... Respondents
                    Through: Mr. Rajiv Bansal with Ms. Swati
                             Gupta, Advocates
                             Mr. Mohinder J.S. Rupal for DU


       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI

                              JUDGMENT

VIPIN SANGHI, J.

1. The petitioners have preferred the present writ petition under

Article 226 of the Constitution of India to seek the following substantive

reliefs:

"(i) Issue a writ in the nature of mandamus or other suitable writ or order or direction directing the respondent nos.1 and 2 to issue marks sheet/provisional degree/original degree/character certificate to the

petitioners against the BPO Course.

(ii) Issue a writ in the nature of mandamus or other suitable writ or order or direction directing the respondent nos.1 and 2 to quash all the false allegations that have been made against petitioners and give compensation for this.

(iii) Award the compensation to the petitioner no.2 for academic loss suffered by him as he could not took admission in Master of International Business with Jamia Milia Islamia, New Delhi on account of withholding his result by respondent no.1.

(iv) Issue a writ in the nature of mandamus or other suitable writ or order or direction to respondent no.1 to release the stipend amount of Rs.18,000.00 (for six month @ 3,000/-) month payable to the petitioner on account of having completed the internship.

(v) Award the cost of this proceeding including the compensation for mental harassment and agony and academic loss as well as financial loss as this Hon'ble Court fit in the circumstance of the present writ petition.

(vi) Issue a writ in the nature of mandamus or other suitable writ or order or direction to respondents to release the security deposit and caution money (Rs.5,000.00) which was deposited by the petitioner with the hostel administration of respondent no.2".

2. At the outset, I may observe that as on date, all the aforesaid reliefs

stand granted to the petitioners, except the claim of damages made by the

petitioners. They have been issued the mark sheets/provisional degree and

character certificates in relation to the course undergone by them at the

respondent institute. The security deposit and caution money of Rs.5,000/-

also stands released to the petitioners. So far as the allegations against the

petitioners of their having adopted unfair means and of issuing threat to

assault the practical examiners in the examination held on 23.08.2008 are

concerned, the said enquiry proceedings have been dropped by the

respondents, meaning thereby that the said allegations against the petitioners

have not been pressed or proved by the respondents. The stipend claimed by

the petitioners under prayer (iv) also stands released to the petitioners. It is

only the award of compensation claimed by petitioner no.2 for academic loss

allegedly suffered by him on account of withholding of his result by

respondent no.1, which now remains to be adjudicated, apart from the aspect

of costs.

3. At this stage itself, I may observe that the preliminary objection of

learned counsel for the respondent is that since the present case raises highly

disputed questions of fact, the award of compensation in exercise of

jurisdiction of this Court under Article 226 of the Constitution of India is not

permissible, and the remedy available to the petitioners lies in pursuing their

claims in civil proceedings.

4. Petitioner no.2 appeared in person, on behalf of himself and on

behalf of petitioner nos.1 and 3, and made his submissions. The submission

of petitioner no.2 is that on 21.08.2009, the respondent institute issued

certificates to the petitioners certifying that they are bonafide students of

Bachelor of Prosthetics and Orthotics of the Pandit Deendayal Upadhyaya

Institute for Physically Handicapped (4 ½ years course). It was certified that

the petitioners passed their final year annual examination on 15.12.2008 and

that the petitioners had undergone compulsory six months internship

training, which was completed on 17.08.2009. It was further certified that

the result of the said examination was likely to be declared in the month of

September/October 2009 by the University of Delhi, and that each of the

petitioners bears good moral character.

5. On the same date, each of the petitioners were served with a

memorandum requiring them to appear before the enquiry committee in

connection with the alleged adoption of unfair means and threat to assault

the practical examiners on 23.08.2008. The petitioners were required to

appear before the enquiry committee on 25.08.2009.

6. According to the petitioners, the said allegations were made

malafide and with a view to ruin the career and future prospects of the

petitioners. These allegations had been made after a year of the alleged

incident of 23.08.2008, and the aforesaid memorandum was issued to each

of the petitioners with a view to withhold their final result.

7. The petitioners have resorted to making scores of applications

under the Right to Information (RTI) Act with a view to establish their

innocence and to defend themselves in the said enquiry proceedings. The

petitioners have, on the basis of the responses received to their RTI

applications, sought to make out a case of contradictions in the stand of the

respondents with regard to, inter alia, the alleged incident of 23.08.2008; the

decision to initiate enquiry; the enquiry officer etc.

8. I do not consider it necessary to go into all those aspects in depth

for the simple reason that the said enquiry stands dropped, meaning thereby

that the petitioners are no longer tainted with the said charges. As aforesaid,

the present exercise is only limited to determine whether or not, in the

present proceedings, any damages can be awarded to the petitioners on

account of issuance of the aforesaid memorandum on 21.08.2009, which led

to withholding of the petitioners results for a period of about four months.

9. The respondents have filed their counter-affidavit. In the counter-

affidavit, the stand of the respondent is that the present writ petition is not

maintainable to claim damages. That apart, the respondent states that the

incident of 23.08.2008 indeed took place. The respondent further states that

notices were issued to the petitioners for appearing before the enquiry

committee on 25.08.2009, 04.11.2009, 27.11.2009 and 17.12.2009, but the

petitioners did not appear before the said committee even on one occasion.

However, keeping in view the professional interests and career of the

petitioners, and in the hope that the petitioners would improve their conduct,

the respondents had decided not to take any adverse action against the

petitioners.

10. Learned counsel for the respondent submits that the allegation of

bias or malafides against the respondent and its officers is wholly misplaced.

He submits that in fact the petitioners have been accommodated out of turn

in an unprecedented manner, inasmuch, as, though the petitioners were sent

for internship to various hospitals/organizations, the petitioners insisted that

they would be undergoing internship training within the institute.

11. Mr. Bansal submits that this unreasonable demand of the

petitioners was also met and they were permitted to undergo internship

training within the institute, which is an unprecedented step. In this regard,

reference is made to the file noting of 17.02.2009 which has been filed by

the respondent and is available at page 790 of the record.

12. Mr. Bansal further states that the petitioners have not suffered any

loss or damage as their results were withheld only for a period of about four

months, and the results were declared on 01.02.2010. None of the petitioners

have disclosed as to how they have suffered any damage, as it is not even

stated what steps were taken by them to seek admission in any other

institution. They have also not shown or established that they were denied

admission in any other course on account of their results being not available

for four months.

13. The respondents rely upon the judgments of the Supreme Court in

Smt Nilabati Behera alias Lalita Behera v. State of Orissa & Ors., (1993) 2

SCC 746, and Rudul Shah v. State of Bihar, AIR 1983 SC 1086, to submit

that since there are disputed questions of fact arising in the present case, the

award of damages could not be justified in writ proceedings.

14. Since the respondents have dropped the enquiry proceedings on the

allegations made against the petitioners, in my view, it is not open to the

respondent to still contend that the petitioners had resorted to adoption of

unfair means or to issue threat of assault to any examiner on 23.08.2008. If

the respondents are permitted to adopt such a stand, the same would be

violative of the principles of natural justice, as it would tantamount

condemning the petitioners without granting them an opportunity of meeting

the allegations against them. Whatever may have been the reasons for the

respondents to have taken their decision to drop the enquiry proceedings

against the petitioners, once the said proceedings have been dropped, it has

to be taken that the allegations against the petitioners have not been proved

and the said allegations cannot once again be heaped on the petitioners as

done by the respondents in their counter-affidavit. It is, therefore, made clear

that the said allegations contained in the memorandum dated 21.08.2009

shall in no way come in the way of the petitioners at any stage, and shall not

mar their prospects. The same shall not be looked into as they already stand

dropped.

15. At the same time, it appears that the respondents have been

accommodating the petitioners as, for instance, in the matter of their

undergoing internship. The office noting relied upon by the respondents is

relevant and reads as follows:

"Shri Chandan Kumar Chandan, Ms. Ruchika Yadav & Ms. Priyanka Sarpal has cleared their IV year examinations. As per the curriculum they have to place for 6 months internship in any institute/hospital or Organisation in Delhi.

The above students have not accepted the internship placed by the Institute in different hospitals/organizations in Delhi to learn Prosthetics & Orthotics. They have insisted to do their internship in PDUIPH. The matter was discussed with the

Director, of the institute and the above students were placed for internship in PUDIPH w.e.f. 17.2.2009. They will mark their attendance in a separate register with Assistant Manager (W).

Submitted for information and approval.

(S.C. Ranga) Head of the Department BPO"

This office noting was approved and implemented by the

respondents.

16. Pertinently, this approval was granted on 17.02.2009. This clearly

shows that even till as late as February 2009, the respondent authorities had

no malice in their conduct, qua the petitioners. Else there was no reason for

the respondent to accommodate the petitioners in the aforesaid manner.

Even otherwise, the petitioners have not been able to make out a case of

malafide against the respondents. The pleadings in that respect are wholly

lacking. The petitioners have not even impleaded the concerned officers

against whom malafides are alleged. It is well settled that officers, against

whom allegations of malafides are made, should be personally impleaded as

party respondents in the petition so that they have an opportunity to meet the

specific case against them. That not having been done, I am not inclined to

agree with the submission of the petitioners that any of the officers of the

respondents acted malafide against the petitioners while issuing the

memorandum dated 21.08.2009.

17. I find force in the submission of learned counsel for the

respondents that the award of damages in the present case is not warranted

as the petitioners have failed to make out a clear case of breach of

fundamental rights, which could be stated to have resulted in the sufferance

of damages. Moreover, how the said conduct of the respondents in issuing

the memorandum dated 21.08.2009 and in withholding the mark sheets of

the petitioners for four months impacted their prospects has not been

disclosed. There are indeed several disputed questions of fact which arise in

the present case. No specific averments have been made and no documents

in this regard have been placed on record.

18. It is well settled principle of law that when a disputed question of fact

arises and there is a clear denial of any tortuous liability, remedy under

Article 226 of the Constitution may not be proper. It is only in the case

where there is negligence on the face of it and consequent deprivation of

fundamental right that the writ courts can award compensation in exercise of

writ jurisdiction.

19. In Rudul Shah (Supra), where compensation was awarded, the

Supreme Court was faced with a situation where the petitioner who was

acquitted by the Court of Session was released from jail more than 14 years

after he was acquitted. The petitioner approached the Court asking for his

release on the ground that his detention in the jail was unlawful and claimed

compensation for the illegal incarceration. The petitioner was released from

jail and as regards the compensation for illegal detention the Court held that

though Article 32 cannot be used as a substitute for the enforcement of rights

and obligations which can be enforced efficaciously through the ordinary

processes of Courts, however, in order to rectify the grave injustice

perpetrated upon the petitioner by illegally detaining him in jail for 14 years

after his acquittal, which violated his fundamental right to life and liberty

guaranteed under Article 21 of the Constitution of India, the Court in the

exercise of its jurisdiction under Article 32, can pass an order for the

payment of money if such an order is in the nature of compensation

consequential upon the deprivation of a fundamental right. The order of

compensation passed was in the nature of a palliative, leaving the petitioner

the liberty to file a suit for compensation, wherein the nice points of facts

and law would be adjudicated upon.

20. In Nilabati Behera (Supra), a writ petition was filed under Article 32

of the Constitution for determining the claim of compensation consequent

upon the death of petitioner's son in police custody. In view of the denial by

the State that death was due to police harassment when the deceased was in

police custody, the Supreme Court gave a direction to the District Judge, to

hold an inquiry into the matter and submit a report. The District Judge

reached the conclusion that it was a case of custodial death. In view of the

dispute as to the correctness of the findings in the report of the District

Judge, the matter was examined afresh by the Supreme Court in the light of

the objections raised. The Court also reached the same conclusion on a

reappraisal of the evidence adduced at the enquiry. Upon the factum of

custodial death being proved, the Supreme Court proceeded to award

compensation. It observed that monetary compensation, for contravention of

the fundamental rights guaranteed under the Constitution, by recourse to

Articles 32 and 226 would be justified, when that is the only practicable

mode of redress available for the contravention made by the State or its

servants in the purported exercise of their powers.

21. In Chairman, Grid Corporation of Orissa Ltd. (Gridco) and Ors. v.

Sukamani Das (Smt.) and Anr. (1999) 7 SCC 298 the question which arose

for consideration was, whether the High Court can under Article 226 of the

Constitution award compensation for death caused due to electrocution on

account of negligence, when the liability was emphatically denied on the

ground that the death had not occurred as a result of negligence, but because

of an act of God or of acts of some other persons. The Supreme Court held

that it is the settled legal position that where disputed questions of facts are

involved, a petition under Article 226 of the Constitution is not a proper

remedy. Therefore, questions as to whether death occurred due to negligence

or due to act of god or of some third person could not be decided properly on

the basis of affidavits only, but should be decided by the civil court after

appreciating the evidence adduced by the parties.

22. Similarly, in Tamil Nadu Electricity Board v. Sumathi and Ors.,

(2000) 4 SCC 543, it was held that when a disputed question of fact arises

and there is clear denial of any tortuous liability, remedy under Article 226

of the Constitution may not be proper. The Supreme Court carved out an

exception to this general rule by observing that, it should not be understood

that in every case of tortuous liability, recourse must be had to a suit. When

there is negligence on the face of it and infringement of Article 21 is there, it

cannot be said that there will be any bar to proceed under Article 226 of the

Constitution.

23. In Mr. Gatakala Venkateswarlu vs. Union of India & Anr., 128

(2006) DLT 1, a writ petition under Article 226 had been filed in the nature

of a recovery claim on account of the failure of the respondents to take

necessary steps for forwarding the application of the petitioner for

compensation to the United Nations Compensation Commission. Since the

case involved disputed questions of fact, which required a recording of

testimony, this Court dismissed the writ petition with liberty to the petitioner

to file a civil suit.

24. The Supreme Court in S.P.S Rathore vs. State of Haryana, (2005) 10

SCC 1, observed that the Courts while exercising jurisdiction under Articles

32 and 226 can award compensation for the violation of fundamental rights

guaranteed by the Constitution but such a power should not be lightly

exercised. The issue before the Supreme Court was whether the High Court

was correct in directing the District Judge to conduct a an enquiry so as to

ascertain the truth of the averments made by one of the Respondent

regarding forceful withdrawal of complaints filed by her, under Article 226

of the Constitution. Relying upon its earlier decisions, as mentioned above,

the Supreme Court held that the "The sparing exercise of power under

Article 32 or Article 226 of Constitution of India for issue of directions to

conduct enquiry to determine compensation in glaring and clear cases of

rape by police officials, custody death, illegal detention of poor and helpless

cannot be resorted to in the case of present nature.". Accordingly, the

impugned judgment of the High Court was set aside.

25. In view of the above discussion, the petitioners are not entitled to

award of any damages in the present proceedings. The present case is not of

the nature that warrants the exercise of such power. The power of a writ

court, as discussed above, is to be used sparingly in appropriate cases of

violation of fundamental rights, which may be in the nature of custodial

death, or damage to the life and liberty of a person on the failure of the State

to take adequate precautions. It cannot be exercised for every infraction of

any right which results in damages.

26. Accordingly, this petition is disposed of leaving the parties free to

agitate their claims in appropriate civil proceedings, if they are so advised.

Parties are left to bear their respective costs.

(VIPIN SANGHI) JUDGE MARCH 23 , 2012 sr