Rajasthan High Court - Jodhpur

Malee Ram Gurjar vs Jodhpur Vidhyut Vit. Nigam Ltd. ... on 20 April, 2023

Bench: Dinesh Mehta

[2023/RJJD/011163]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 5847/2015

Malee Ram Gurjar son of Shri Gulla Ram Gurjar, aged about 26 years, resident of village Shipur, via Ajitgarh, Tehsil Sri Madhopur, District Sikar. At present posted as Technical Helper A.En. Office (Jd.V.V.N.L.) Salasar, Churu.

----Petitioner Versus

1. Jodhpur Vidhyut Vitran Nigam Limited, New Power House Jodhpur through its Managing Director.

2. Secretary (Admn.) Jodhpur Vidhyut Vitran Nigam Limited, New Power House Jodhpur.

3. Chief Personnel Officer, Jaipur Vidhyut Vitran Nigam Limited , Visyut Bhawan, Janpath, Jaipur.

4. Superintending Engineer (JPDC), Jaipur Vidhyut Vitran Nigam Limited, Jaipur.

----Respondent

For Petitioner(s) : Mr. Vikas Bijarnia For Respondent(s) : Mr. Dhanesh Saraswat with Mr. Udit Mathur

JUSTICE DINESH MEHTA

Order

20/04/2023

1. Mr. Saraswat, learned counsel for the respondents, at the

outset, submits that the issue involved in the present writ petition

has been set at rest by Division Bench of this Court in D.B. Special

Appeal (Writ) No.304/2021 decided on 16.04.2021 rendered in the

case of Manisha Devi Meena Vs. Jaipur Vidyut Vitran Nigam

Limited & Ors. which has been followed by a co-ordinate Bench

of this Court in its order dated 03.01.2023 rendered in the case of

Manendra Singh Vs. Ajmer Vidyut Vitran Nigam Limited &

Ors. : S.B.Civil Writ Petition No.12880/2020.

[2023/RJJD/011163] (2 of 7) [CW-5847/2015]

2. In the case of Manisha Devi Meena (supra), this Court has

observed thus:-

"Before Division Bench of this court in Dr. Priya Verma (supra), question arose that condition to the effect that successful candidate after first counseling will have to submit bank guarantee to the amount of Rs. 5,00,000 at the time of joining at the allotted college so that he/she cannot forego or leave the course. It was also stipulated that if he/she does, the bank guarantee shall be forfeited. The said condition in the prospectus was in pursuance to the decision taken in the meeting at government level. The Division Bench after considering various aspects held as under:-

14. There is no dispute with the aforesaid proposition. But, in the instant case seats have gone waste. The State has incurred huge expenditure in imparting education for one year. The patients in attached Hospitals to medical colleges have been derived from getting services of efficient Doctors as the seats cannot be allotted now. Injury has been caused to the cause of education such seats are national wealth and cause of service in the field of health services. Thus, the ratio of aforesaid decision in facts of the case is not attracted. It is not penalty which is mentioned in the bond. In our opinion, it is reasonable amount stipulated to be paid in wake of breach of condition of bond. It cannot be said to be a term in terrorum.

15. Exception to Section 74 of the Indian Contract Act, 1872 provides that recognisance or other instrument of the same nature or under the provisions of any law, or under the orders of the Central Government or of any State Government, gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable upon breach of the condition of any such instrument topay the whole sum mentioned therein. In view of exception in our view, there is no

[2023/RJJD/011163] (3 of 7) [CW-5847/2015]

substance in the submission of the appellants that only actual damages caused can be recovered. Exception to Section 74 is clearly attracted the nature of duties to be performed to the patients is an act in which public are interested. Thus, the bond clearly falls within the exception to Section 74 of the Act of 1872. Exception to Section 74 is to the following effect:-

Exception: When any person enters into any bail bond, recognisance or other instrument of the same nature or under the provisions of any law, or under the orders of the Central Govt. or of any State Govt., gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable upon breach of the condition of any such instrument to pay the whole summentioned therein.

16. Learned counsel appearing on behalf of the appellant has also submitted that such a stipulation is outcome of superior bargaining power of the State Government thus, is not enforceable. He has relied upon the decision of the Supreme Court in Central Inland Water Transport Corporation Limited & Anr. vs. Brojo Nath Ganguly and Anr. and Central Inland Water Transport Corporation Limited & Anr. vs. Tarun Kanti Sengupta & Anr.

MANU/SC/0439/1986 :(1986) 3 SCC 156. In Brojo Nath Ganguly's case, provision for consideration was under the one under which permanent employee could have been removed by notice of three months such a condition had been held to be outcome of superior bargaining of the employer which is not the case here. The condition in instant case is found to be reasonable and with an objective to take care that the seats do not go waste which causes colossal financial loss deprivation of services and is not in public and national interest. The ratio of the aforesaid decisions is not attracted in the present matter Condition in the bond in facts and circumstances of case cannot be said to be unreasonable or unconscionable or

[2023/RJJD/011163] (4 of 7) [CW-5847/2015]

outcome of superior bargaining power or opposed to public policy or violative of Section 23 of the Contract Act which hits at contract which are opposed to public policy, forbidden by law, defeat provision of any law which involves injury to the person or property of another. Hence, the same is enforceable.

17. Shri Sharma has also submitted that action of the respondents amounts to unjust enrichment. In support of his submission, he has placed reliance in Union of India & Ors. vs. Dhanwanti Devi & Ors.MANU/SC/1272/1996 : (1996) 6 SCC 44 and Urban Improvement Trust, Bikaner vs. Mohan Lal MANU/SC/1817/2009 : (2010) 1SCC 512. In Union of India & Ors. vs. Dhanwanti Devi & Ors. the Apex Court has observed in Para-19 as under:-

"19. The contention that the denial of solatium and interest in respect of the property acquired under the Act would bean unjust enrichment of the State, is devoid of substance. The public money is credited to the Consolidated Fund which is expended in accordance with the Appropriation Bill passed by Parliament or the State Legislature in accordance with the provisions of the Constitution. The amount collected would be expended for the purposes of appropriation and for implementation of the Directive Principles of State policy and the law made by the appropriate legislature or the executive policy in furtherance thereof. Therefore, the non-payment of solatium and interest does not independently get into the coffers of the public exchequer nor does the State enrich itself. The public money is expended only for public purpose. The concept of unjust enrichment by the State is alien to and in derogation of the constitutional scheme and public policy. The general principle is that one should not be permitted to unjustly enrich himself at the expense of others. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and

[2023/RJJD/011163] (5 of 7) [CW-5847/2015]

equity belongs to another. Three elements must be established in order to sustain a claim based on unjust enrichment, the benefit conferred upon the defendant by the plaintiff; appreciation of knowledge by the defendant of the benefit; and the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value. These principles specifically absentin the case of omission by a statute, are made by the competent legislature to award interest or solatium, in addition to compensation. So, it cannot be characterised as unjust enrichment where such action does not involve violation of law or is not opposed to public policy either directly or indirectly when the statute prescribes the principle for payment of compensation and omits as its policy to provide for the payment of interest and solatium as components of compensation. It is the legislative public policy to provide for acquisition of the private property for a public purpose. The State pays compensation for the acquired land in accordance with the principle laid down in the statute. It would, therefore, be illogical to contend that by legislative omission to pay solatium and interest the State enriches itself unjustly at the expense of the private person. The contention, therefore, is unsustainable in law.

"18. In the instant case, the State is not going to receive any unjust enrichment. None of three ingredients are available i.e. retention of money belonging to other, neither any benefit: has been conferred by the appellants on respondents nor question of inequitable consideration of holding such benefit arises against State. Thus, claim based on unjust enrichment has no legs to stand. As a matter of fact for one year, the State has actually spent amount or the education and expenditure incurred in such education is huge.

[2023/RJJD/011163] (6 of 7) [CW-5847/2015]

"Thus, the Division Bench of this court in Dr. Priya Verma'scase (Supra) upheld the condition imposed on a candidate for submission of a bond. Similarly, in the present case, appellant had accepted the job in terms of the conditions mentioned in the appointment letter and had also executed the bond in terms of the appointment letter. Since the appellant had left the job before the required minimum period, she was liable to pay the amount in terms of the bond furnished by her to the respondents.

So far as the judgment relied upon by the learned counsel for the appellant is concerned, the said decision has been given without noticing the decision given by the Division Bench of this court earlier in Dr. Priya Verma's case."

3. Following the decision of Division Bench in the case of

Manisha Devi Meena (supra), the present writ petition is

dismissed.

4. The respondent - Nigam shall intimate the petitioner about

the amount to be deposited by way of a notice.

5. Petitioner shall be allowed at least three months' time to

deposit the amount. In case, the petitioner does not deposit the

amount within three months, the respondents shall be free to

recover the same from petitioner's salary.

6. The interim order dated 28.05.2015 is made absolute.

Consequently, the petitioners' relieving order shall be treated in

accordance with law.