Ruchika Yadav & Ors. vs Pandit Deendayal Upadhyaya ...
2012 Latest Caselaw 5418 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of decision: 11th September, 2012

+                          LPA No. 560/2012

%         RUCHIKA YADAV & ORS.                        ....Appellants
                      Through: Appellant No.1 in person.

                                   Versus

    PANDIT DEENDAYAL UPADHYAYA INSTITUTE
    FOR PHYSICALLY HANDICAPPED & ANR .... Respondents
                  Through: Mr. Rajiv Bansal, Adv. for R-1.
                           Mr. Mohinder J.S. Rupal, Adv. for
                           R-2.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

1. This Intra-Court appeal impugns the judgment dated 23rd March,

2012 of the learned Single Judge in W.P.(C) No.240/2010 preferred by the

appellants. Though the said writ petition was preferred seeking several

reliefs but the judgment records (and which aspect is not disputed by the

appellants) that other reliefs claimed in the petition stood granted to the

appellants and thus did not survive for adjudication and the writ petition

survived only qua the claim of damages. In so far as the claim for damages

is concerned, the learned Single Judge has held that the same was not

warranted as the appellants had failed to make out a clear case of breach of

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

of damages. It was further observed that the appellants had not made

specific averments and not placed documents in support of their claim on

record; in view of the denial by the respondents, several disputed questions

of fact arose and the remedy under Article 226 of the Constitution of India

was not a proper remedy. The writ petition qua the claim for damages was

thus dismissed, granting liberty to the appellants to agitate their claims in

appropriate civil proceedings, if so advised.

2. The three appellants took admission in the year 2004 in the Bachelor

of Prosthetics & Orthotics course of the respondent no.1 Institute. The said

course was of five years duration, culminating in the year 2009. The claim

of the appellants for damages was predicated on the respondent no.1

Institute not declaring the result of the three appellants along with the result

of their other batch mates declared on 3rd September, 2009 and withholding

the same till 1st February, 2010 when it was ultimately declared. While

compensation for mental harassment and agony and academic loss as well

as financial loss owing to withholding of the result was claimed by all the

appellants, the appellant no.2 Shri Chandan Kumar Chandan had also

claimed compensation for academic loss suffered on account of being not

able to take admission in Master of International Business with Jamia Milia

Islamia, New Delhi for the reason of such withholding of result.

3. The respondent no.1 Institute contested the writ petition pleading, that

it is an Autonomous Body under the administrative and financial control of

Ministry of Social Justice and Empowerment, Govt. of India; that the

appellants interrupted the examination being conducted on 23 rd August,

2008 and used un-parliamentary language and behaved in a manner to divert

the attention of the examiners and secure marks by unfair means and

methods and threatened the invigilators; that an inquiry was ordered and

intimation thereof also sent to the respondent no.2 University of Delhi;

however pending inquiry, the appellants were allowed to continue with their

course; the appellants however did not mend their ways and continued to

burden the authorities of the respondent no.1 Institute by filing a large

number of applications under the RTI Act on one pretext or the other and

preferred appeals against the orders of the Public Information Officer of the

respondent no.1 Institute and thereafter writ petitions in this Court; that the

other students of the respondent no.1 Institute had also complained against

the appellants; that the appellants abstained from the inquiry on one pretext

or the other and which resulted in hearing after hearing being given to the

appellants; the proceedings of the inquiry were also delayed on account of

superannuation on 31st December, 2009 of one of the members of the

Inquiry Committee and the Committee therefore being required to be re-

constituted; that during the meeting of the Inquiry Committee on 18 th

January, 2010, finding that the matter had been disproportionately delayed

and the Inquiry Committee could not arrive at any concrete decision due to

want of statement of the complainants / students who were reluctant to

participate in the Inquiry, it was unanimously agreed by the Inquiry

Committee that the matter should be disposed of without any attribution of

guilt/wrong doing to any of the students or faculty members and it was

suggested that the respondent no.1 Institute may take a decision in view of

the said facts; that the final result of the appellants had been withheld for the

said reason and upon receipt of the report dated 18th January, 2010 of the

Inquiry Committee, the final result of the appellants was declared on 1 st

February, 2010 as aforesaid.

4. The appellants attribute mala fides, fraud, conspiracy and fabrication

of documents to the respondent no.1 Institute; some of the incidents cited in

the memorandum of appeal are of even prior to the incident aforesaid of 23 rd

August, 2008 and are not found to be relevant qua the claim of damages and

as such need is not felt to discuss the same here. The appellants else plead

that more than 20 versions had been fabricated by the respondent no.1

Institute of the incident of 23rd August, 2008; that the principles of natural

justice have not been complied with; that officials against whom the

appellants had earlier complained were members of the Inquiry Committee;

that the complaint of the incident was made to the respondent no.2

University of Delhi only on 19th August, 2009; explanations of external

and internal examiners were recorded after 20 days of the incident and no

complaint had been made by them on their own; that the examiners even in

their explanation did not mention the names of the appellants and did not

produce any material evidence; that decision to call the appellants for

hearing before the Inquiry Committee was taken on 21st August, 2009 but

the memorandum in this regard was prepared on 19th August, 2009; that

several other documents also have been created in back date; inconsistencies

are pointed out in the various documents; inconsistencies are also pointed

out between the documents and the file notings obtained by the appellants

through the medium of RTI. The appellants in the grounds of appeal have

urged that the learned Single Judge failed to take on record documents

purported to be handed over to him at the time of hearing and which are

filed with this appeal along with an application and which show that the

appellant no.2 had received calls in the Academic Year 2010 from Jamia

Milia Islamia University, IIM Indore, Sri Ram College of Commerce and

Indian Institute of Forest Management, Bhopal and all of which he could not

avail of for the reason of his result having been withheld. It is also urged

that the learned Single Judge has not given due regard to the appellants

no.1&3 being females and the appellant no.2 being physically challenged. It

is yet further urged that the respondent no.1 Institute along with its counter

affidavit had not produced any documents to establish the incident of 23 rd

August, 2008.

5. The learned Single Judge in the impugned judgment has referred to

(i) Smt Nilabati Behera alias Lalita Behera Vs. State of Orissa (1993) 2

SCC 746; (ii) Rudul Shah Vs. State of Bihar AIR 1983 SC 1086; (iii)

Chairman, Grid Corporation of Orissa Ltd. (Gridco) Vs. Sukamani Das

(Smt.) (1999) 7 SCC 298; (vi) Tamil Nadu Electricity Board Vs. Sumathi

(2000) 4 SCC 543; (v) Mr. Gatakala Venkateswarlu Vs. Union of India

128 (2006) DLT 1; and, (vi) S.P.S Rathore Vs. State of Haryana, (2005) 10

SCC 1 to conclude that damages cannot be awarded to the appellants in writ

proceedings.

6. We have heard the appellant no.2 who has appeared in person as well

as the counsels for the respondents who appeared on advance notice. The

appellant no.2 has drawn our attention to the order dated 20 th May, 2010 of

the learned Single Judge in the writ proceedings to contend that

notwithstanding the other reliefs clamed in the writ petition having not

survived, the writ petition was proceeded with on the aspect of

compensation. He has next invited our attention to the letter dated 10 th

March, 2011 of the Shi Ram College of Commerce inviting him for Group

Discussion and Personal Interview for admission to PG Diploma in Global

Business Operations 2010-2012 batch on 2nd April, 2010. Attention is also

invited to the memorandum dated 21st August, 2009 issued to the three

appellants calling them to appear before the Inquiry Committee on 25 th

August, 2009. From the letter dated 10th December, 2008 of the Librarian /

PIO of the respondent no.1 Institute, it is shown that the Supdt. Examination

had refused to disclose the names of the examiners of the examination held

on 23rd August, 2008. Attention is next invited to the memorandum dated

16th/25th November, 2009 calling the appellants to appear before the Inquiry

Committee on 27th November, 2009. Inconsistency therewith is shown from

the minutes dated 10th September, 2009 of the meeting of the Inquiry

Committee held on 25th August, 2009 desiring the appearance of the

appellants before the Inquiry Committee. Attention is also invited to the

letter dated 5th September, 2008 of a student to point out the inconsistencies.

The appellant no.2 has also cited before us Municipal Corporation of Delhi

Vs. Association of Victims of Uphaar Tragedy AIR 2012 SC 100 and

judgment dated 7th January, 2011 of Division Bench of the Madras High

Court in Writ Appeal No.2240/2010 titled Minor S. Kiruthika Vs. State of

Tamil Nadu. He has also handed over a note of judgments pertaining to

violation of Article 21, principles of natural justice and other fundamental

rights.

7. On the contrary, the counsel for the respondent no.1 Institute has

highlighted the non-participation by the appellants before the Inquiry

Committee. He has further contended that the appellants even if deprived of

admission in the year 2010, have not been able to secure admission in the

subsequent years and which demonstrates that they have not suffered any

loss and thus the question of awarding them any damages does not arise.

8. We have bestowed our due consideration to the matter in controversy

and since the appellants have filed and pursued the appeal in person, also

gone through the entire record carefully but are unable to take a view

different from that taken by the learned Single Judge. We may, besides the

judgment already noticed by the learned Single Judge, also refer to the

recent dicta of the Apex Court in Godavari Sugar Mills Ltd. Vs. State of

Maharashtra 2011 (2) SCC 439 after a consideration of the entire case law

including Suganmal Vs. State of Madhya Pradesh AIR 1965 SC 1741,

U.P. Pollution Control Board Vs. Kanoria Industrial Ltd. 2001 (2) SCC

549 and ABL International Ltd. Vs. Export Credit Guarantee Corporation

of India 2004 (3) SCC 553, making the legal position clear as under:-

(i) Normally, a petition under Article 226 of the Constitution of

India will not be entertained to enforce a civil liability arising

out of a breach of contract or a tort to pay an amount of money

due to the claimants. The aggrieved party will have to agitate

the question in a civil suit. But an order for payment of money

may be made in a writ proceeding, in enforcement of statutory

functions of the State or its officers;

(ii) If a right has been infringed--whether a fundamental right or a

statutory right and the aggrieved party comes to the Court for

enforcement of the right, it will not be giving complete relief if

the Court merely declares the existence of such right or the fact

that existing right has been infringed. The High Court, while

enforcing fundamental or statutory rights, has the power to give

consequential relief by ordering payment of money realized by

the Government without the authority of law;

(iii) A petition for issue of writ of mandamus will not normally be

entertained for the purpose of merely ordering a refund of

money, to the return of which the petitioner claims a right. The

aggrieved party seeking refund has to approach the Civil Court

for claiming the amount, though the High Courts have the

power to pass appropriate orders in the exercise of powers

conferred under Article 226 for payment of money;

(iv) There is a distinction between cases where a claimant

approaches the High Court seeking the relief of obtaining only

refund and those where refund is sought as a consequential

relief after striking down the order of assessment etc. While a

petition praying for mere issue of writ of mandamus to the

State to refund the money alleged to have been illegally

collected is not ordinarily maintainable, if the allegation is that

the assessment was without a jurisdiction and the tax collected

was without authority of law and therefore the respondents had

no authority to retain the money collected without any

authority of law, the High Court has the power to direct refund

in a writ petition;

(v) It is one thing to say that the High Court has no power under

Article 226 to issue a writ of mandamus for making refund of

the money illegally collected. It is yet another thing to say that

such power can be exercised sparingly depending on facts and

circumstances of each case. For instance, where the facts are

not in dispute, where the collection of money was without

authority of law, there is no good reason to deny a relief of

refund to the citizens;

(vi) Where the lis has a public law character or involves a question

arising out of public law functions on the part of the State or its

authorities, access to justice by way of a public law remedy

will not be denied.

9. Applying the aforesaid law, there is no way that the writ petition in

the present case can be said to be maintainable. It may also be noticed that

there were hardly any averments in the writ petition to which counter

affidavit had been filed by the respondents and most of the other averments

were made in the rejoinder and additional affidavits with documents filed by

the appellants before the learned Single Judge and to which the respondents

had no occasion to respond. We however, find that even if such an

opportunity were to be given to the respondents, the nature of the dispute is

such that the question of award of damages in writ jurisdiction does not

arise. It is also worth mentioning that though mala fides, fabrication, fraud

are alleged but the averments are generally against the respondent no.1

Institute without naming any particular staff member or teacher.

10. Even otherwise the allegation of mala fide is also a question of fact,

which cannot be adjudicated in writ jurisdiction. It was held in DD Suri Vs.

A.K. Barren (1970) 3 SCC 313 that even where substance in the 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. Recently, the Apex Court in Kisan Sahkari Chini Mills Ltd. Vs.

Vardan Linkers AIR 2008 SC 2160 also reiterated that public law remedy

under Article 226 of the Constitution of India is not available to seek

damages for breach of contract or specific performance of contract unless

the contractual dispute has a public law element. Reference may also be

made to Binny Ltd. Vs. V. Sadasivan (2005) 6 SCC 657 where the Apex

Court held that even in the matter of termination of employment, no public

law element is involved and the remedy of the employees is under the civil

or labour law only. It was further held that the powers under Article 226 are

to be exercised by applying the Constitutional provisions and judicial

guidelines and violation, if any of the fundamental rights and the Court

would be reluctant to exercise the power of judicial review in rights on the

basis of contracts. It was further held that a contract would not become

statutory simply because it has been awarded by a statutory body.

12. We therefore do not find any merit in this appeal and dismiss the

same.

No costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE SEPTEMBER 11, 2012 pp..