Dr.Biju Paul v. Road

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.1.2007 CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.16878 of 2003Dr.Biju Paul.. Petitioner vs. 1. Tamil Nadu Medical Council D.Block, 100, Feet Road, Vadapalani, Chennai – 600 026.2. Tamil Nadu Dr. M.G.R. Medical University, No.69, Anna Salai, Guindy, Chennai – 600 032.3. Christian Medical College, Thorapadi, Vellore – 632 002... RespondentsWrit petition filed under Article 226 of the Constitution ofIndia as stated therein. For petitioner : Mr.R.Subrahmanyam For respondents : Mr.K.Sridhar for R1 Mr.M.Vellaisamy for R2 Mr.Krishna Srinivasan for M/s.S.Ramasubramaniam & Associates for R3 O R D E RThe writ petition has been filed for the issuance of a writ ofmandamus to direct the third respondent through the respondents 1and 2 to issue the necessary certificates, more particularly, theMedical transcript, certificate of clock hours, conduct certificate,reply to the request letter of Educational Commission for Foreign https://hcservices.ecourts.gov.in/hcservices/ Medical Graduates for confirmation, completion of M.B.B.S. coursecertificate.The brief facts of the case, as stated by the petitioner, areas follows:2. The petitioner was admitted to the M.B.B.S. Course duringthe month of September, 1993, in the third respondent College. Hehad successfully completed the M.B.B.S. Course in the month ofJanuary, 1999. The second respondent had also issued an M.B.B.S.degree certificate to the petitioner. Following which, thepetitioner had registered himself with the first respondent as aregistered medical practitioner. 3. The petitioner has further stated that after his completion ofthe M.B.B.S. Course, the third respondent College had refused toissue the necessary certificates to him, which the third respondentCollege was obliged to issue. The petitioner was sponsored for theM.B.B.S. seat in the third respondent College by M/s.N.M.WadiaHospital, Pune, which is a private Mission Hospital, being a part ofthe Pune Christian Medical Association. The Pune Christian MedicalAssociation is a part of the Church of North India, which is amember of the governing council of the third respondent College. Thepetitioner had written an entrance examination conducted by thethird respondent College during the month of May, 1993, and havingqualified in the written examination and in the interview conductedthereafter, he was offered a medical seat in the M.B.B.S. Course inthe third respondent College. At the time of admission in the saidCourse, there was a pre-condition for the candidates under thesponsorship to sign an agreement and the sponsorship bond with thethird respondent. The agreement and bond stated that after thesuccessful completion of the course, the candidates shall serve in aHospital or an institution, as directed by the sponsoring body or bythe Principal of the College, for a period of not less than twoyears, immediately, following the completion of the M.B.B.S. Courseas a "service obligation". Since the petitioner had been sponsoredby M/s.N.M.Wadia Hospital, Pune, he was asked to sign the agreementand bond with the third respondent. After the successful completionof the Course in the month of January, 1999, the petitioner wasdeputed to work at the M/s.N.M.Wadia Hospital, Pune. Accordingly,the petitioner had taken up the assignment, on 4.2.1999.4. The petitioner was made to suffer without regular salary beingpaid by the said Hospital and he was made to vacate theaccommodation provided by the Hospital. The working conditions inthe Hospital were very poor including non-availability of the powersupply, attributable to the failure of the Hospital to pay theelectricity bills. The petitioner was made to bear extremehumiliation by the Hospital Authorities and his services wereterminated by the Hospital Management from 16.9.1999 by a letter,dated 15.9.1999, even though the petitioner was ready and willing toperform his part of the obligation under the agreement. 5. The https://hcservices.ecourts.gov.in/hcservices/ petitioner had made a representation, dated 11.6.2001, to the thirdrespondent to issue the necessary documents for the course completedin the third respondent College. By a letter, dated 19.6.2001, thethird respondent College had stated that due to the non-completionof the service obligation, the documents requested by the petitionercannot be given. Since the petitioner needed the documents forfurther studies abroad, the Educational Commission for ForeignMedical Graduates had written to the third respondent College forconfirmation, by their letters of request, dated 11.6.2001 and26.4.2002. However, the third respondent College had not replied tothe said letters of request. Therefore, the petitioner had made awritten request, on 5.2.2003, requesting the third respondent toissue the following certificates, (1) Medical Transcript (2)Certificate of clock hours (3) Conduct certificate (4) Reply to therequest letter of Educational Commission for Foreign MedicalGraduates for confirmation (5) Completion of the M.B.B.S. Coursecertificate. The third respondent, however, has refused to issue thesaid documents, due to which, the petitioner has been put toconsiderable loss and hardship.6. In the counter affidavit filed by the first respondent, it isstated that the first respondent is a statutory authorityconstituted under the provisions of the Tamil Nadu MedicalRegistration Act. The main functions of the first respondent relateto registration of the Allopathic Doctors, publishing the MedicalRegisters and the Disciplinary jurisdiction over the Doctors. Thefirst respondent has no role or connection with the act of issuingthe documents requested by the petitioner and it is beyond the scopeof the powers vested with the first respondent to interfere with theagreement made between the petitioner and the third respondentCollege. There is no statutory duty cast on the first respondent toissue the direction to the third respondent College to issue thecertificates sought for by the petitioner.7. A counter affidavit has also been filed on behalf of the thirdrespondent College, in which, it is stated that the third respondentCollege is a Society registered under the Societies RegistrationAct. It is not discharging any statutory duties and therefore, it isnot amenable to the writ jurisdiction under Article 226 of theConstitution of India. Further, the writ petition is barred due tolaches as having completed the course in the year 1999, thepetitioner has filed the present writ petition only in the year,2003, praying for the issuance of the certificates mentionedtherein.8. It is the further case of the third respondent that thecertificates sought for by the petitioner are not statutorilyrequired to be given and all the certificates, which the thirdrespondent has to receive, has already been given to the petitioner,for which he has acknowledged. Therefore, there is no statutory duty https://hcservices.ecourts.gov.in/hcservices/ or obligation cast on the third respondent to issue thecertificates, as required by the petitioner. The Tamil Nadu MedicalCouncil Registration Certificate, Original internship Certificates,Provisional Pass Certificate and date of Birth Certificate were sentto the petitioner by registered post with acknowledgment due, asearly as 4.3.1999. The conduct and course certificates were alsoissued, on 23.4.1998. Even though various allegations have been madeby the petitioner against the Pune Christian Medical Association, ithas not been made a party in the present writ petition norM/s.N.M.Wadia Hospital, Pune, has been made a party. Therefore, thewrit petition is liable to be dismissed for non-joinder of thenecessary parties. 9. It has been further stated that the petitioner was acandidate sponsored by the Pune Christian Medical Association, inthe year 1993, and the petitioner being a sponsored candidate, hadsigned an agreement under which the petitioner had undertaken toserve in the Hospital of the sponsoring body or any otherInstitution approved by the constitutional body, for a period of notless than two years following his graduation. Only on suchundertaking by the petitioner, he was given admission in the thirdrespondent College. Only under extraordinary circumstances, the bondcould be relaxed, on payment of a proportionate amount asstipulated. In the case of the petitioner, no such extra-ordinarycircumstances existed, under which the bond could have been relaxed.The petitioner, having completed his course in the month of January,1998, did his internship for one year, till the year 1999. As perhis bond, he has worked in the M/s.N.M.Wadia Hospital, Pune, from4.2.1999 and his services were discontinued from 16.9.1999. Havingcompleted seven months in the Hospital, the petitioner had failed tocomply with the obligations under the bond. Therefore, thepetitioner is not entitled to the relief claimed by him. 10. Heard the learned counsel appearing for the petitioner as wellas for the respondents.11. The learned counsel appearing on behalf of the petitionerhas submitted that the non-performance of the service obligationagreed by the petitioner, by way of an agreement under bond, was notdue to the petitioner but was due to the failure of M/s.N.M.WadiaHospital, Pune, to provide him with sufficient opportunity toperform his functions as a Medical Practitioner. Due to the non-issuance of the certificates as requested for, the petitioner hasbeen put to irreparable loss in the career prospects and has beensubject to severe mental agony. The third respondent College isunder an obligation to issue the certificates as required by thepetitioner and being a public body, refusal to issue thecertificates would amount to infringement of the petitioner'sfundamental rights. https://hcservices.ecourts.gov.in/hcservices/

12. The learned counsel appearing on behalf of the petitionerhad also relied on the following decisions in support of hiscontentions.12.1. In EXECUTIVE COMMITTEE OF U.P. STATE WAREHOUSING CORPN.,LUCKNOW VS. CHANDRA KIRAN TYAGI (AIR 1970 S.C.1244), the Supreme Court has held that normally a contract of personalservice will not be enforced by an order for specific performancenor will it be open for a servant to accept the repudiation of acontract of service by his master and say that the contract hasnever been terminated. The remedy of the employee is a claim fordamages for wrongful dismissal or for breach of contract.12.2. In re ANANDAN NAMBIAR (AIR (39) 1952 MADRAS 117), thisCourt has held that "Article 226 of the Constitution of Indiaconfers on the High Court extremely wide powers of interference anda corresponding extremely heavy burden of responsibility. Theframers of the Constitution could never have contemplated HighCourts constituting themselves on applications by all sorts ofaggrieved persons into inquisitorial tribunals supervising,criticising, modifying or cancelling the actions and orders ofdifferent departments of executive authority, institutions, publicbodies and last but not least of the legislatures as regards theirinternal affairs which are controlled by the Speaker and the Houseand its committees. It is only in exceptional cases that writs underthese wide powers "for any other purposes" can be issued, such asfor instance when there has been a clear violation of statutory law,when principles of natural justice have been violated or perhapswhere there has been mala fide discrimination against an individualto the detriment of his rights. It is impossible to define withexactitude the cases in which Article 226 of the Constitution can berightly invoked. They should be comparatively exceptional and veryfew."12.3. In K.SHEKAR Vs. V.INDIRAMMA AND OTHERS ((2002) 3 SCC586), the Supreme Court has held as follows:"21. We can take judicial notice of thefact that NIMHANS is an institution of repute.It has already been so recognised by this Courtin B.R. Kapoor v. Union of India (1989)3 SCC 387.It is also true that generally speaking Courtshave been reluctant to interfere with therunning of educational institutions. But therecan be "no islands of insubordination to therule of law"(1980) 3 SCC 418. The actions ofeducational institutions, however highlyreputed, are not immune from judicial scrutiny.Indeed to preserve the High reputation, there isa greater need to avoid even the semblance ofarbitrariness or extraneous considerationscolouring the Institution's actions." https://hcservices.ecourts.gov.in/hcservices/

12.4. In M.S.GREWAL Vs. DEEP CHAND SOOD (AIR 2001 SC 3660), theSupreme Court has held as follows:"26. Next is the issue 'maintainability ofthe writ petition' before the High Court underArticle 226 of the Constitution. The appellantthough initially very strongly contended thatwhile the negligence aspect has been dealt withunder penal law already, the claim forcompensation cannot but be left to beadjudicated by the Civil law and thus the CivilCourt's jurisdiction ought to have been invokedrather than by way of a writ petition underArticle 226 of the Constitution. This plea ofnon-maintainability of the writ petition thoughadvanced at the initial stage of the submissionsbut subsequently the same was not pressed and assuch we need not detain ourselves on that score,excepting however recording that the law courtsexists for the society and they have anobligation to meet the social aspirations ofcitizens since law courts must also respond tothe needs of the people. In this contextreference may be made to two decisions of thisCourt. The first in line, is the decision inNilabati Behera (Smt) alias Lalita Behera(Through the Supreme Court Legal Aid Committee)v. State of Orissa and Others 1993 (2) SCC 746,wherein the Court relying upon the decision inRudal Sah (Rudal Sah v. State of Bihar & Anr.,1983(4)SCC 141) decried the illegality andimpropriety in awarding compensation in aproceeding in which court's power under Articles32 and 226 of the Constitution stand invoked andthus observed that it was a clear case for awardof compensation to the petition for custodialdeath of her son. It is undoubtedly true howeverthat in the present context there is noinfringement of State's obligation unless ofcourse the State can also be termed to be ajoint tort-feasor, but since the case of theparties stand restricted and without impartingany liability on the State, we do not deem itexpedient to deal with the issue any furtherexcept noting the two decisions of this Court asabove and without expression of any opinion inregard thereto. https://hcservices.ecourts.gov.in/hcservices/

27. The decision of this Court in D.K. Basuv. State of West Bengal, 1997(1) SCC 416, comesnext. This decision has opened up a new vesta inthe jurisprudence of the country. The olddoctrine of only relegating aggrieved to theremedies available in civil law limits standsextended since Anand, J. (as His Lordship thenwas) in no uncertain terms observed:"The courts have the obligation tosatisfy the social aspirations of thecitizens because the courts and thelaw are for the people and expected torespond to their aspirations. A courtof law cannot close its consciousnessand aliveness to stark realities. Merepunishment of the offender cannot givemuch solace to the family of thevictim - civil action for damages is along drawn and a cumbersome judicialprocess. Monetary compensation forredressal by the court finding theinfringement of the indefeasible rightto life of the citizen is, therefore,useful and at time perhaps the onlyeffective remedy to apply balm to thewounds of the family members of thedeceased victim, who may have been thebreadwinner of the family."28. Currently judicial attitude has taken ashift from the old draconian concept and thetraditional jurisprudential system - affectationof the people has been taken note of ratherseriously and the judicial concern thus standson a footing to provide expeditious relief to anindividual when needed rather than takingrecourse to the old conservative doctrine ofcivil Courts obligation to award damages. As amatter of fact the decision in D.K. Basu has notonly dealt with the issue in a manner appositeto the social need of the country but thelearned Judge with his usual felicity ofexpression firmly established the current trendof 'justice oriented approach. Law courts willlose its efficacy if it cannot possibly respondto the need of the society - technicalities https://hcservices.ecourts.gov.in/hcservices/ there might be many but the justice orientedapproach ought not to be thwarted on the basisof such technicality since technicality cannotand ought not to outweigh the course ofjustice." 12.5. In Zee Tele Films Ltd. And another Vs. Union of India andothers (AIR 2005 S.C.2677), the Supreme Court has held that eventhough the aggrieved party may not have a relief by way of apetition under Article 32, it does not mean that the violator ofsuch right would go scot-free merely because it or he is not astate. Under the Indian Jurisprudence there is always a just remedyfor violation of a right of a citizen. Though the remedy underArticle 32 is not available, an aggrieved party can always seek aremedy under the ordinary course of law by way of a writ petitionunder Article 226 of the Constitution of India which is much widerthan Article 32. 13. On the contrary, the learned counsel appearing on behalf ofthe third respondent College has contended that the writ petition isnot maintainable, as there is no obligation or a duty cast on thethird respondent College to issue the certificates required by thepetitioner. All the certificates and the documents, which the thirdrespondent College is obliged to give to the petitioner, as part ofthe statutory obligation, have already been given and the receipt ofwhich has been acknowledged by the petitioner himself. Further, thepetitioner has not impleaded the Pune Christian Medical Associationand the M/s.N.M.Wadia Hospital, Pune, as party respondents, eventhough he has made certain allegations against them. Further, therehas been a long delay in coming before this Court and therefore, thewrit petition would also be hit by laches. 14. The learned counsel appearing on behalf of the thirdrespondent has pointed out that the writ petition is notmaintainable against the third respondent, as held by this court inW.P.No.3773 of 1997, by an order, dated 29.8.1997, after citing thevarious authorities relating to the issue. 15. Further, the learned counsel appearing on behalf of thethird respondent has also pointed out that by an order, dated30.9.1997, in W.P.No.8840 of 1997, this Court has held that sincethe petitioner therein was bound by his service obligation, which hehad undertaken to discharge at the time of admission to the medicalcourse, the writ petition praying for the issuance of a writ ofmandamus could not be issued as prayed for by the petitioner. In theWrit Appeal No.1479 of 1997, filed against the said order, the FirstBench of this Court had confirmed the order of the learned singleJudge. 16. On a perusal of the records placed before this Court and onan analysis of the rival contentions made on behalf of eitherparties and based on the decisions cited, it is seen that there isno statutory obligation or a duty cast on the respondents to issuethe certificates as required by the petitioner. The petitioner, https://hcservices.ecourts.gov.in/hcservices/ having not fulfilled the service obligations under the agreement andthe bond entered into between himself and the third respondent,cannot seek for a remedy as prayed for, invoking the writjurisdiction of this Court. The third respondent College,admittedly, is an Institution registered under the SocietiesRegistrations Act and, as held by the learned single Judge inW.P.No.8840 of 1997 and confirmed by the Division Bench of thisCourt in W.A.No.1479 of 1997, the third respondent College is notamenable to the writ jurisdiction as such. Further, it is also seenthat there has been a considerable delay on the part of thepetitioner in seeking his remedy by way of filing the present writpetition. 17. Even though this Court has wide powers under Article 226 of theConstitution of India to issue any order or direction to any personor authority, it is normally exercised with caution and this Courtcannot be like a "bull in a china shop", especially, in view of thefact that the petitioner has not availed of other legal remediescontemplated under the ordinary law of the land. It is further clearthat all the documents required to be given to the petitioner, aspart of the obligation of the third respondent Institution, havebeen received by the petitioner as early as 4.3.1991.18. In such circumstances, this Court is of the considered view thatthe relief sought for by the writ petitioner cannot be granted.However, it is open to the writ petitioner to seek his remedy beforethe concerned authority/Appropriate forum in the manner known tolaw.With the above observations, the writ petition is dismissed. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. Tamil Nadu Medical Council D.Block, 100, Feet Road, Vadapalani, Chennai – 600 026.2. Tamil Nadu Dr. M.G.R. Medical University, No.69, Anna Salai, Guindy, Chennai – 600 032.+ one cc to Mr. K. Sridhar, Advocate sr no. 5394MJ(CO)NM(12.02.07)W.P.No.No.16878 of 2003