Rose Mary Antony v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **WP(C).No.26305 OF 2013(K)** ## **PETITIONER:** **ROSE MARY ANTONY D/O.ANTONY JOSEPH, MANADAN HOUSE, PONOTH ROAD, KALOOR, COCHIN - 682 017.** **BY ADV. SRI.S.R.DAYANANDA PRABHU** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.** - **2 SCHOOL OF COMMUNICATION & MANAGEMENT STUDIES REPRESENTED BY ITS PRINCIPAL, SCMS CAMPUS, PRATHAP NAGAR, MUTTAM, ALUVA, COCHIN - 683 106.** - **3 THE REGISTRAR SCHOOL OF COMMUNICATION AND MANAGEMENT STUDIES, PRATHAP NAGAR, MUTTAM, ALUVA, COCHIN - 683 106.** - **4 UNIVERSITY GRAND OF COMMISSION (UGC) REPRESENTED BY ITS EDUCATION OFFICER, SOUTH WESTERN REGIONAL OFFICE, PRASANA KUMAR BLOCK, PALACE ROAD, BANGALORE - 560 009, (KARNATAKA)** - **5 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (AICTE) REPRESENTED BY ITS DIRECTOR, SOUTH WESTERN REGIONAL OFFICE, PRASANA KUMAR BLOCK, PALACE ROAD, BANGALORE - 560 009 (KARNATAKA)** - **6 ADI SANKARA INSTITUTE OF ENGINEERING & TECHNOLOGY REPRESENTED BY ITS PRINCIPAL, VIDHYA BHARATHI NAGAR, KALADY - 683 574.** ## **7 MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR ATHIRAMPUZHA, KOTTAYAM.** **R1 BY ADV. SRI.S.KRISHNAMOORTHY CGC R1-2 BY ADV. SRI.MILLU DANDAPANI** **R1, R7 BY SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY** WP(C).No.26305 OF 2013(K) 2 **R1 BY DR.P.LEELAKRISHNAN, SC, M.G.UNIVERSITY R1 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY R4 BY ADV. SRI.S.KRISHNAMOORTHY, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.26305 OF 2013(K) 3 ## JUDGMENT ## This writ petition is filed seeking the following prayers:- “To issue a writ of mandamus or appropriate writ or direction directing the respondents 2 & 3 to forthwith release the original documents/mark lists detained by them as evidenced by Exhibit P2 and P3 to the petitioner. 1) To issue a writ of certiorari order or quashing Exhibit P9 order passed by the 3[rd] respondent. 2) To issue a writ of mandamus to appropriate writ or direction directing the 3[rd] respondent to refund Rs.1,30,750/paid by the petitioner as per Exhibit P1. 3) To issue a writ of mandamus or appropriate writ or direction directing the respondents 6 & 7 to permit the petitioner to continue her studies on the basis of photocopies of produce certificates. 4) To issue a writ of mandamus or appropriate writ or direction directing the 1[st] respondent to pass appropriate effective legislation to curb and control the Private Educational Institution from adopting unfair unjust and deceptive practices. 5) To issue a writ of mandamus or appropriate writ or direction directing the respondents 4 & 5 to take effective action on the Exhibit P10 complaint filed by the petitioner.” 2. Heard the learned counsel for the petitioner and the learned counsel appearing for the 2[nd] respondent college as well as the learned Government Pleader and the learned Standing Counsel appearing for the University. WP(C).No.26305 OF 2013(K) 4 3. It is submitted that the petitioner had been admitted in the 2[nd] respondent College for the PGDPM course of two years duration in July, 2013. All requisite fees had been paid by her. The petitioner had handed over her original CBSE certificate and Degree mark lists & certificates at the time of admission. It is stated that the course was a fully residential course and classes commenced on 29.07.2013. On 02.08.2013, holidays were declared for the college due to floods. It is submitted that the petitioner's mother had to be admitted in a hospital and due to her worsening health condition, the petitioner had to be available at home. It is submitted that the petitioner's father, by Ext.P4 letter dated 26.08.2013, had requested the 1[st] respondent to permit the petitioner to continue her studies as a day scholar. However, the said request was not allowed and the petitioner therefore had discontinued her studies and joined the Adi Sankara College at Kalady for MBA course. 4. It is submitted that the respondents had, by Ext.P9, required the petitioner to pay liquidated damages of Rs.5,50,000/- failing which, the original certificates of the petitioner were refused to be returned. Though the petitioner approached the UGC and AICTE, no action was taken thereon and WP(C).No.26305 OF 2013(K) 5 the petitioner was constrained to approach this Court. 5. By an interim order dated 30.10.2013, this Court directed the respondents to return the original certificates surrendered by the petitioner at the time of granting admission on her executing a simple bond forthwith. The said order was taken in appeal by the 2[nd] respondent and by judgment dated 07.11.2013 in W.A No.1685/2013, the interim order was modified. It was directed that the petitioner shall produce a bank guarantee for an amount of Rs.5,50,000/-. However, it was made clear that the writ petition could be decided untrammeled by any observation made by the Division Bench. 6. The learned counsel for the petitioner would contend that there is absolutely no justification in the respondents requiring the petitioner to pay liquidated damages since the case in question was not one of voluntary discontinuance of studies. It is submitted that it was only due to the health condition of the petitioner's mother that she was unable to continue her studies as residential scholar. Ext.P4 would show that aspect had been brought to the notice of the 2[nd] respondent and that a request was made to continue her studies as a day scholar. It is only because the said request was not allowed by the 2[nd] respondent WP(C).No.26305 OF 2013(K) 6 to the petitioner was forced to take admission in another college. It is stated that Ext.P13 decision of the National Consumer Disputes Redressal Commission as well as Ext.P14 AICTE regulations would make it clear that the 2[nd] respondent had no manner of right or authority to withhold the original documents of the petitioner and to demand liquidated damages. Reliance is also placed by the learned counsel for the petitioner on a decision of this Court in Shireen v. State of Kerala (2017 (2) KLT 691) in support of the contentions that the respondents are not justified in insisting on payment of liquidated damages. It is stated that the factual aspects of the case has been considered along with the decisions of the Apex Court on the point and that this Court has come to the conclusion that the agreements obtained by the College from the petitioner authorizing them to withhold certificates of the students for payment of the amounts covered by the bonds would be unethical and unconscionable and that as such unsustainable has been opposed to public policy, in the light of Section 23 of the Indian Contract Act. The writ petition was allowed and the respondents therein were directed to issue the original certificates to the petitioner. It is submitted by the learned counsel for the petitioner that this Court in W.P(C) WP(C).No.26305 OF 2013(K) 7 No.24526/2013 which had been tagged along with this writ petition also directed the release of the original certificates to the petitioner without insisting on payment of any liquidated damages. 7. A statement has been placed on record by the 2[nd] respondent. It is contended therein that the prospectus issued by the college in respect of the course had specifically mentioned that in case any student discontinues the course after the course commences, they would have to pay liquidated damages amounting to the fees for the entire course. It is contended that the course was specifically a residential course and it was mandatory for the students to stay in the hostel. It is stated that classes are held in the evening also and it was imperative that the students should be available in the campus during the duration of the course except on holidays. 8. A counter affidavit has been placed on record by the UGC and AICTE wherein it is stated that the action of the 2[nd] respondent in refusing to issue the certificates is unjustifiable. 9. I have considered the contentions advanced. It is not in dispute that the student had joined the course and had been forced to discontinue her studies on account of ill health of her WP(C).No.26305 OF 2013(K) 8 mother. It is also not in dispute that Ext.P4 letter had been sent by the petitioner's father to the 3[rd] respondent requesting that the petitioner be permitted to continue her studies as a day scholar in view of the difficulties faced by the family. The factual aspects in the matter are not in dispute. The respondents had, pursuant to the interim order of this Court, issued the original certificates to the petitioner on retaining a bank guarantee for an amount of Rs.5,50,000/-. 10. Having considered the contentions advanced on either side and having perused the judgments of this Court as well as the Apex Court, I am of the opinion that the condition in the prospectus to the effect that the student who discontinued the course is liable to pay liquidated damages to the College is completely unenforceable in the facts of the instant case. The decision of this Court in Shireen v. State of Kerala (supra) squarely covers the issue. There is no provision in the prospectus empowering the college to retain the original certificates of a student who wishes to discontinue her studies. The learned counsel for the respondents reliance on a decision of the Division Bench of this Court in Principal, Sree Narayana Mangalam Institute of Management and Technology, Maliankara v. Fee Regulatory WP(C).No.26305 OF 2013(K) 9 Committee and Others (2016 (5) KHC 462), I notice that the facts of the said case are completely different from the facts available in the instant case. The question which arose for consideration before the Division Bench was with regard to the provisions of the KEAM prospectus and an admission secured by a student in the merit quota in an Engineering College. The facts would also disclose that the student, who was then a major, had made a statement before the Fee Regulatory Committee that he had lost interest in the course for which he had secured admission and had absented himself from the course and eventually secured admission for another course. The facts of the instant case are completely different. The petitioner has pointed out cogent reasons for the request made to continue as a day student in the course. The said request was evidently not considered by respondents 2 and 3. It was in the above circumstances that she had to quit the course and join elsewhere where she could continue her studies as a day scholar. In the facts and circumstances of the instant case, I am of the opinion that the action of the respondents in imposing liquidated damages on the petitioner, who had discontinued her studies in the institution as a pre-condition for releasing her WP(C).No.26305 OF 2013(K) **==> picture [15 x 9] intentionally omitted <==** certificates is completely unsustainable. Ext.P9 is, therefore, set aside. It is declared that the respondents cannot insist on payment of any liquidated damages by the petitioner as a precondition for release of original certificates. The writ petition is accordingly allowed. The Bank guarantee furnished by the petitioner shall stand discharged. This will not affect the rights of the respondents instituting appropriate proceedings against the petitioner for realisation of any fee due. However, the petitioner shall be free to raise all contentions available in case such a course of action is adopted by the respondents. Sd/- ## ANU SIVARAMAN JUDGE Bng/17.12.19 WP(C).No.26305 OF 2013(K) 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF MONEY RECEIPT DATED 4/4/2013 ISSUED BY 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF RECEIPT DATED 4/4/2013 ACKNOWLEDGING ORIGINAL CERTIFICATE ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P3 TRUE COPY OF RECEIPT DATED 30/7/2013 ACKNOWLEDGING ORIGINAL CERTIFICATE ISSUED BY THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF LETTER DATED 26/8/2013 SUBMITTED BY ANTONY JOSEPH (FATHER OF THE PETITIONER) TO THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF MEDICAL CERTIFICATE DATED 26/8/2013 ISSUED BY LISIE HOSPITAL, ERNAKULAM. EXHIBIT P6 TRUE COPY OF CERTIFICATE DATED 12/9/2013 ISSUED TO THE RESPONDENT TO THE PETITIONER. EXHIBIT P7 TRUE COPY OF MEMO DATED 7/10/2013 ISSUED BY 6TH RESPONDENT TO THE PETITIONER. EXHIBIT P8 TRUE COPY OF LETTER DATED 24/9/2009 ISSUED BY PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P9 TRUE COPY OF LETTER DATED 20/9/2013 ISSUED BY 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P10 TRUE COPY OF COMPLAINT DATED 8/10/2013 SUBMITTED BY PETITIONER TO THE RESPONDENTS 4 & 5 EXHIBIT P11 TRUE COPY OF LETTER DATED 14/10/2013 ISSUED BY 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P12 TRUE COPY OF LETTER DATED 17/10/2013 ISSUED BY 6TH RESPONDENT TO THE PETITIONER. EXHIBIT P13 TRUE COPY OF DECISION DATED 7/11/2008 REPORTED IN NIPUN NAGAR V.SYMBIOSIS INSTITUTE OF INTERNATIONAL BUSINESS (2009) CPJ3 (NC).** WP(C).No.26305 OF 2013(K) 12 **EXHIBIT P14** **TRUE COPY OF REGULATIONS 2012 ISSUED BY THE 5TH RESPONDENT AND PUBLISHED IN INDIA GAZETTED DATED 25/5/2012.** **EXHIBIT R2(A) A TRUE COPY OF THE E-MAIL LETTER DATED 12TH JULY, 2013 ISSUED BY SCMS, COCHIN** **EXHIBIT R2(B) A TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER ON 24.09.2013 FOR RETURN OF ORIGINAL RECORDS.** **EXHIBIT R4(A) TRUE COPY OF THE PUBLIC NOTICE NO.13/2007(CPP-II) DATED 23.04.2007 EXHIBIT R4(B) TRUE COPY OF THE LETTER NO.F.1-3/2007 (CPPII) DATED 4TH/7TH JUNE, 2007** **EXHIBIT R4(C) TRUE COPY OF THE LETTER NO.6-1 (7)/2006 (CPP-I) DATED 21.06.2011**