Pankaja Kasturi Ayurve Medical College Kill i, Kattakada, Thiruvananthapuram v. Kerala State Human Rights Commission and Sri Radhakrishnan Radharajam

W.P.(C) No.13866 of 2016 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 18[TH] DAY OF OCTOBER 2022 / 26TH ASWINA, 1944 WP(C) NO. 13866 OF 2016** ## **PETITIONER:** **PANKAJA KASTHURI AYURVE MEDICAL COLLEGE KILLI,KATTAKADA,THIRUVANANTHAPURAM, PIN-695 572. REPRESENTED BY ITS EXECUTIVE DIRECTOR.** **BY ADVS.** **SRI.GEORGE POONTHOTTAM SMT.NISHA GEORGE SMT.ANN MARIA FRANCIS** ## **RESPONDENTS:** - **1 THE KERALA STATE HUMAN RIGHTS COMMISSION TURBO PLUS TOWER,PMG JUNCTION, THIRUVANANTHAPURAM-695 033. REPRESENTED BY ITS REGISTRAR.** - **2 SRI.RADHAKRISHNAN RADHARAJAM,VENGAPOTTA, KAZHIVOOR P.O.,THIRUVANANTHAPURAM695 041.** **BY ADVS.** **SRI.PIRAPPANCODE V.S.SUDHIR FOR R2** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWIN** W.P.(C) No.13866 of 2016 2 ## **JUDGMENT** ## **Dated this the 18[th] day of October, 2022** ## **SHAJI P.CHALY,J** This writ petition is filed by the respondent in Complaint, HRMP No.380 of 2015, challenging the order of the Human Rights Commission dated 3[rd] November, 2015, whereby the writ petitioner was directed to repay an amount of Rs.50,000/- secured by the petitioner towards fine for issuing a Non Objection Certificate from the college, within two months from the date of receipt of copy of the proceedings and thereafter to file an action taken report. 2. When the writ petition was admitted to the files, an interim order of stay of execution of the order of the Human Rights Commission was granted, which is still in force. Brief material facts for the disposal of the writ petition are as follows; 3. The second respondent's son was a student in the writ petitioner college. According to the complainant, the Executive Director of the petitioner college on 3.2.2014, called the complainant's son to the college office and handed over an order stating that he should carry on his internship in some other college hospital. If he wants a No Objection Certificate, he should pay Rs.50,000/- and provide an undertaking per the format. According to the complainant, such an order was W.P.(C) No.13866 of 2016 3 passed on the basis of an enquiry commission allegedly constituted by the petitioner college. It is also the case of the complainant that in spite of earnest efforts made by the complainant, the college authorities were not prepared to permit the complainant's son to continue his internship in the college. Various other contentions are also raised. 4. Anyhow, after receiving an amount of Rs.50,000/- and the undertaking, the NOC was given to the complainant's son. Apparently, some untoward incident allegedly happened in the college hospital through the complainant's son in connection with a female patient admitted in the medical college. It seems, the female patient has given a complaint and the Duty Doctor made some enquiry and submitted a report. It was on the basis of the same, the complainant's son was directed to discontinue his internship in the college. 5. A written statement was filed by the petitioner college before the Human Rights Commission, in which it is stated that the complainant's son was expelled from the college during his internship for physically touching a female patient admitted in the medical college. It was also stated that he was earlier punished in 2007 by the college authorities for violating the hospital rules and a fine of Rs.5,000/- was imposed on him. W.P.(C) No.13866 of 2016 4 6. Anyhow, it is admitted that even though the complainant's son was suspended for 10 days, no disciplinary proceedings were taken against him. It is further contended that on 28.1.2014, when complainant's son was working in night shift, he went on rounds in the hospital and entered room No.5, where a lady patient was admitted and under the pretext of examining the patient, he physically abused her by touching her. It is also stated that the patient complained the matter to the Duty Doctor and the Duty Doctor has mentioned the same in the duty report and in the report, the manner in which the complainant's son behaved to the patient was narrated. The Duty Doctor, it seems, has reported the matter to the Managing Director of the petitioner college. According to the petitioner college, enquiry was conducted by the college, however, without giving any opportunity or notice to the complainant's son that a decision was taken to discontinue the internship in the college. 7.But fact remains, on receipt of Rs.50,000/-, a conduct certificate was issued dated 17.11.2014, marked as Exhibit P4 before the Human Rights Commission, wherein it is stated that the character and conduct of the complainant's son are good. According to the complainant, the allegations made against the complainant's son are false and further, the action of the petitioner college is violative of the human rights of the complainant's son and it has affected his dignity also. The complainant has also claimed compensation at W.P.(C) No.13866 of 2016 5 Rs.1,00,000/- and Rs.25,000/- spent for securing admission in the middle of the academic year in another institution for undergoing internship, apart from the repayment of Rs 50,000/-. As regards the claim of return of Rs.50,000/-, which was received by the petitioner college for issuing NOC, conduct certificate etc., the Human Rights Commission, after taking into account the factual circumstances and the judgments of various courts including the judgement of this Court in **P.M.Unni Raj and others v. Principal, Medical College, Trivandrum and other** [AIR 1983 Kerala 200(1)] and **George Roy v. Mar Athanasius College of Engineering** [(1992(1) KLT 94], has arrived at the following conclusions, and the translated version reads thus: “In this case, the Commission accepts the view that merely because the complainant was not examined or petitioners was not given an opportunity to examine her will not vitiate the enquiry. But, the Commission is of the opinion that before expelling a student from the college campus or compelling him to pay fine and getting an undertaking even for giving NOC he ought to have been heard and he ought to have been told what was the nature of complaint against him and a reasonable opportunity to rebut the allegation. Before taking such serious action and imposing punishment, fair hearing was not done. Hence, basic principles of natural justice are violated. It was stated that after giving an undertaking and paying the amount, petitioner cannot make a complaint. The Commission is unable to accept the above contention petitioner ought to. Petitioner has studied B.A.M.S. course and spent five years in the college. If his internship is not completed he W.P.(C) No.13866 of 2016 6 cannot practice and the entire effort in his studies and valuable five years will be lost unless internship is completed. He had no option but to give the undertaking and pay the penalty as demanded. If, at that time, he started to contest the same, it would have taken years. Even now, for giving the undertaking paying the amount for getting admission in another college etc. took time and he has lost six months in doing the internship. It is to be noted that he was one of the four students who passed the final examination in the first chance out of the 23 students appeared for the examination. He was compelled to pay Rs.50,000 and give an undertaking because respondent insisted that NOC will not be given unless the above conditions are complied with. Without an NOC no other college will accommodate him imposing of fine of Rs.50,000 is illegal as Exhibit P1 punishment order was issued totally violating the principles of natural justice. It is prayed that it is because of the mental agony caused to petitioner and his son and loosing of six months precious time due to the alleged action violating principles of natural justice, a compensation of Rs.One lakh apart from return of Rs.50,000/-imposed on him as penalty and Rs.20,000 spent for securing admission in the middle of an academic year in another institution for doing internship in another college etc. There is no evidence to prove that he paid Rs.20,000/- to join another college hospital though naturally there is likelihood as it is not an institution where the petitioners son studied. Considering these facts and circumstances of the case, it is just and fair on the part of the respondent to return the fine of Rs.50,000/-. Therefore respondent should pay Rs.50,000 to the petitioner within two months from the date of receipt of a copy of this proceedings. However even though petitioner's son has lost six months in his life by losing precious time in doing the internship and mental agony caused to him, on the facts and circumstances of this case, Commission is not separately ordering any W.P.(C) No.13866 of 2016 7 damages or compensation. An action taken report should be filed by the first respondent within one month of the receipt of a copy of the proceedings. Issue a copy of the proceedings to the first respondent and petitioner.” 8. It is thus challenging the legality and correctness of the order of the Human Rights Commission, the writ petition is filed. 9. We have heard learned counsel for petitioner Sri.Ann Maria Francis, learned counsel for the 2[nd] respondent/complainant Sri.Pirappancode V.S.Sudhir and perused the pleadings and materials on record. 10. The paramount contention advanced by the petitioner is that the State Human Rights Commission has been constituted under section 21 of the Protection of Human Rights Act, 1993 and as per section 29 thereof, the powers of State Human Rights Commission is as is applicable to the National Human Rights Commission. It is further pointed out that section 18 of the Act, 1993 only empowers the Commission to make a recommendation to the concerned Government or authority to make the payment of compensation or damages to the complainant. 11.The sum and substance of the said contention is that the Commission has no power to issue directions requiring the petitioner to effect payment in the form W.P.(C) No.13866 of 2016 8 of compensation. That apart, it is contended that when the Act, 1993 empowers the State Human Rights Commission to enquire into the allegations of human rights violation, it is only the committee consisting of all the members, which can look into the allegations. 12. However, in the case at hand, the Chairperson alone has considered the complaint and finally passed orders in the nature of Exhibit P8. It is also pointed out that the Act, 1993 circumscribes the power of the Commission in an enquiry or violation of human rights only in respect of matters relatable to any of the entries enumerated in List II & III of the 7[th] Schedule of the Constitution. That apart, it is submitted that section 12 of the Act, 1993 only permits the Commission to enquire suo motu or on petition presented to it by a victim or any person on his behalf for violation of human rights or abutment thereof. It is the contention of the petitioner that the victim in the instant case, who was a major, did not present the petition. It is also pointed out that when the victim himself accepted Exhibit P3 order dated 3.2.2014, it was not open for the father of the victim to institute the complaint. Other contentions are also raised to the effect that the Human Rights Commission has exceeded its jurisdiction in directing return of the amount of Rs.50,000/- secured by the petitioner college towards the penalty. That apart, it is pointed out that the college has every right to impose a penalty in order to issue a NOC and a conduct certificate favouring the student, W.P.(C) No.13866 of 2016 9 bearing in mind his prospects. 13.On the other hand, the 2[nd] respondent has filed a detailed counter affidavit refuting the allegations and also stating that there was no enquiry at all conducted before expelling the student from the college and the entire incident narrated are cooked up stories. It is also pointed out that the petitioner college could not produce any material before the Human Rights Commission in order to establish its contention that the complainant's son has indulged in illegality and immorality, as alleged. 14. Petitioner has filed a reply affidavit reiterating the stand adopted in the writ petition. 15. The sole question to be considered is whether any manner of interference is required to the order passed by the Human Rights Commission ? The operative portion of the order of the Human Rights Commission extracted above would make it clear that the Human Rights Commission did not order any compensation but it has only directed to return Rs.50,000/- secured by the petitioner college from the complainant or his son in order to issue the NOC and conduct certificate. W.P.(C) No.13866 of 2016 10 16. At the outset, we wish to say that either before the Human Rights Commission or before this Court, the petitioner has produced any evidence to show that any inquiry was conducted to the alleged incident of immorality attributed against the complainant's son with an opportunity to the student; or otherwise. Moreover, the petitioner could not produce any order rules or bye- law before this Court enabling the college to impose a penalty on the student of its own volition to issue a NOC and a conduct certificate. The learned counsel for the petitioner in fact submitted before us that in view of the bad reputation suffered by the college consequent to the illegal action of the student, the petitioner college was entitled to impose a fine of Rs.50,000/-. That apart, it is contended that there is no human rights violation enabling the Commission to entertain a complaint. In fact, ‘human rights’ is defined under section 2(d) of the Act, 1993 to mean, the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. In exercise of the powers conferred under Act, 1993, the Human Rights Commission has made regulations. 17. In Kerala State Human Rights Commission (Procedure) Regulations, 2002, regulation 2(e) defines 'complaint' to mean, all petitions or communications received by the Commission from a victim or any other person on his behalf in person or by post or by telegram or by fax or by any other means whatsoever W.P.(C) No.13866 of 2016 11 alleging violation of human rights or abetment thereof or negligence in the prevention of such violation by public servant of all or any of the human rights defined in clause (d) of sub-section (1) of section 2 read with sub-section (5) of section 21 of the Act. Moreover, by virtue of the provisions of Regulations,2001, the Commission has a Chairperson and two members. As per the provisions of the Regulations, 2001, the Chairperson of the Commission is vested with powers to constitute a Division Bench or Full Bench and the Chairperson has also the power to distribute the work to the members. It also contemplates a Single Bench consisting of Chairperson or any member of the Commission as may be constituted by the Chairperson. Therefore, the definition of human rights clearly shows that whenever there is an action interfering with the dignity of an individual, it is a human rights violation and therefore, either a victim or any person representing him, is vested with the authority to approach the Human Rights Commission. It is also clear from the Regulations, 2001 discussed above that in accordance with the distribution of work made by the Chairperson, the functions of the Human Rights Commission can be carried on. The Chairperson also has powers to constitute a Single Bench with himself or any other member. 18. Therefore, the contentions raised in the writ petition against the provisions of the Regulations, 2001, as discussed above, cannot be sustained under law. Anyhow, this is a case, where the Human Rights Commission refused W.P.(C) No.13866 of 2016 12 to order any compensation but it has only directed to return the amount of Rs.50,000/- secured by the petitioner college towards penalty. 19. As we have pointed out above, the petitioner could not produce any evidence to show that it had the authority and power to impose a penalty for defaming the college by its own volition, and for calculating the damages. In our view, if there is no power conferred on the college by any statute, the college was not entitled as of right to quantify compensation, because only the civil court or any authority vested with the powers, are entitled to do so. 20. In that view of the matter, we are of the considered opinion that the petitioner has not made out a case to interfere with the order passed by the Human Rights Commission. We are also of the view that the Human Rights Commission has passed the order after taking into account the entire pros and cons of the matter and bearing in mind the principles of law evolved by various High Courts and this Court. We are also of the view that the petitioner could not establish any illegality, arbitrariness or any other legal infirmities in the impugned order justifying our interference in a proceeding under Article 226 of the Constitution of India. It is also clear from the impugned order that every opportunity was provided to the petitioner to participate and contest the W.P.(C) No.13866 of 2016 13 proceedings by the Human Rights Commission; it was also taking note of the contentions advanced in the written statement, and the arguments advanced that the Human Rights Commission has passed the Order. Needless to say, the writ petition fails, accordingly it is dismissed. Sd/- **S.MANIKUMAR CHIEF JUSTICE** Sd/- **SHAJI P.CHALY** smv **JUDGE** W.P.(C) No.13866 of 2016 14 ## **APPENDIX OF WP(C) 13866/2016** |**PETITIONER EXHIBITS**|| |---|---| |**P1**|**TRUE COPY OF THE REPORT DATED 29/1/2014 PREFERRED BY**| ||**THE MEDICAL OFFICER**| |**P2**|**TRUE COPY OF THE REPORT DATED 28/2/2014.**| |**P3**|**TRUE COPY OF THE INTIMATION DATED 3/2/2014 ISSUED TO**| ||**THE RESPONDENT'S SON.**| |**P4**|**TRUE COPY OF THE UNDERTAKING DATED 26/6/2014.**| |**P5**|**TRUE COPY OF THE LEGAL NOTICE DATED 9/1/2015.**| |**P6**|**TRUE COPY OF THE COMMUNICATION DATED 27/1/2015 ISSUED**| ||**TO THE LAWYER OF THE 2ND RESPONDENT'S SON.**| |**P7**|**TRUE COPY OF THE COMPLAINT DATED 8/1/2015 PREFERRED**| ||**BEFORE THE COMMISSION**| |**P7(A)**|**TRUE COPY OF THE NOTICE DATED 28/1/2015.**| |**P8**|**TRUE COPY OF THE PROCEEDINGS DATED 3/9/2015 PASSED BY**| ||**THE COMMISSION.**| |**P9**|**TRUE COPY OF THE LETTER NO.PKAMC/ADM/06/14 ISSUED TO**| ||**MR.ARUN RADHEESH DATED 29.01.2014**| |**P10**|**TRUE COPY OF THE LETTER ISSUED TO THE COLLEGE COUNCIL**| ||**DATED 3.2.2014**| |**P11**|**TRUE COPY OF THE COURIER REGISTER COPY MAINTAINED BY**| ||**THE PETITIONER**|