Madras High Court
S.Austin Blessie vs The Tamil Nadu Dr. Mgr Medical ...
Bench: S.Vimala, S.Ramathilagam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 03.08.2018
Orders Pronounced on:05.10.2018
CORAM:
THE HON'BLE Dr. JUSTICE S.VIMALA
AND
THE HON'BLE MRS. JUSTICE S.RAMATHILAGAM
Writ Appeal No.2057 of 2013
& M.P.Nos.1 & 2 of 2013
S.Austin Blessie ... Appellant
versus
1. The Tamil Nadu Dr. MGR Medical University,
Rep. by its Registrar, No.69 Anna Salai,
Guindy, Chennai 600 032
2. The Christian Medical College Vellore,
Rep. by its Director, Idea Scudder Road,
Vellore 632 004
3. MMM College of Health Sciences,
(A Unit of Madras Medical Mission),
No.9 Block No.11, Kannadasan Salai,
Mogappair East, Chennai 600 037 ... Respondents
Writ Appeal filed under Clause 15 of the Letters Patent, against the order, dated 30.08.2013 passed in Writ Petition No.1091 of 2013.
For Appellant : Mr. S.Sathiachandran
For Respondents : Mr. P.R.Gopinathan, for R-1,
Mr. Krishna Srinivasan, for R-2,
No Appearance, for R-3
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J U D G M E N T
(Judgment of the Court was delivered by S.Vimala, J.,) Whether the conduct of the writ petitioner was that of a bull in a china shop (a person who breaks things or who often makes mistakes or causes damage in situations that require careful thinking or behavior) and hence the writ petitioner is not entitled to the claim made for return of certificates?
Whether the conduct of the second respondent in refusing to handover the certificates to the writ petitioner was akin to Shylock invoking the clause pound of flesh for enforcement of default clause and hence, it is imprudent to refuse to return the certificates to the writ petitioner?
These are the two rival contentions of the appellant and the second respondent.
2. The appellant, who lost her case before the learned Single Judge in W.P.No.1091 of 2013, has filed this Writ Appeal, challenging the dismissal of the writ petition, refusing to direct the second respondent to hand over the certificates pertaining to the Nursing Education of the petitioner.
3. The writ petitioner joined B.Sc., Nursing course as a candidate sponsored by CSI Diocese of Vellore. While joining, the petitioner entered into a Sponsorship Obligation Agreement, by which she was required to serve in one of the Institutions of the body for a minimum period of two years.
3.1. After the completion of the course, the writ petitioner, unwilling to perform as per the Sponsorship Obligation Agreement, wanted to go for higher studies in the subject of Hospital Administration.
3.2. The writ petitioner wrote a letter dated 18.09.2012 requesting for breaking of the bond through the Bishop of CSI Vellore Diocese, which was forwarded to the second respondent, who had chosen to reject the said request of the writ petitioner.
3.3. The writ petitioner wanted the second respondent to return all her certificates and on refusal, she has approached the Court by filing the writ petition in W.P.No.1091 of 2013.
4. The main contesting respondent, viz., the second respondent opposed the writ petition raising the issue regarding the maintainability of the writ petition itself. The second respondent contended that as per the Sponsorship Obligation Agreement, as the writ petitioner failed to discharge her obligation of serving for two years, as per the directions of the Sponsoring Agency, the writ petitioner has forfeited her right to claim any certificates (i.e., institutional certificates).
4.1. It is the specific case of the learned counsel appearing for the second respondent that the Institutional Certificates such as Transfer Certificate, Conduct Certificate and Transcripts cannot be issued to the writ petitioner unless the petitioner fulfills the service obligations. In other words, the contention of the second respondent is that the second respondent is authorized to withhold transcripts and other non-statutory certificates issued by the College, until the Sponsorship Obligations are fulfilled.
5. After hearing both sides and after going through the documents, the learned Single Judge gave a finding that the writ petitioner has acted in a manner contrary to the terms and conditions of the contract and therefore, it is not open to the petitioner to invoke the writ jurisdiction. Yet another finding is that the right vested with the second respondent under Article 30 of the Constitution of India cannot be taken away by the Writ Court. Challenging the same, this writ appeal is filed.
6. The appellant as well as the second respondent brand the character of each other by saying that the conduct of the writ petitioner is that of a bull in a china Shop and therefore, having committed a mistake she is not entitled to any relief.
7. In order to appreciate the contention, it is necessary to read the relevant clauses in the agreement, which reads as under:-
The students binds herself/himself immediately after successful completion of the course to well and faithfully discharge the duties and observe and perform the terms and conditions of such employment, inclusive of professional service in the Hospital or other institutions as directed by the Sponsoring Body, according to the terms of service as may be stipulated for a period of two years and the guarantor guarantees performance of such service for such period by the student. 7.1. The agreement provides for the consequences of the failure to perform the agreement in the following terms:-
In the event of the failure of the student to fulfill any of the terms stipulated in this Sponsorship Obligation Agreement or the breach of any of the terms thereof, the student forfeits her / his right to claim any certificate other than what should be awarded to a student of the course as per the Regulations of the University.
8. The learned counsel appearing for the second respondent submitted that the act of the second respondent in refusing to hand over the certificates cannot be branded as arbitrary or illegal and it is only the conduct of the writ petitioner in not fulfilling the service obligations, which can be claimed to be illegal, and therefore, the dismissal of the writ petition is justified. The learned counsel has also relied upon the following judgments, in order to support the contention that the writ petitioner is not entitled to the ethical remedy of getting the certificates returned, when the petitioner is guilty of failure to fulfill the obligation under the Sponsorship Obligation Agreement:-
(i) Writ Petition No.3773 of 1997 (Dr. Corinne Sundar Rao v. Christian Medical College and two others).
11. ... It is clear that even though petitioner agreed to serve a hospital for 24 months, she did not serve in any hospital for the term and she served only for 11 months. She got married and left India. Having committed a breach of the obligation, she cannot seek equitable jurisdiction at the hands of this Court.
(ii) Writ Petition No.8840 of 1997 (John D.Ashok v. State of Tamil Nadu, Rep. by the Secretary to Government and two others):-
Having entered into solemn agreement with the college that he will work in any one of the Hospitals for a period of three years and having failed to comply with the undertaking, it is too much on the part of the petitioner to complain before this Court that the third respondent must be directed to return the transcript. Art.226 of the Constitution cannot be used for withdrawing from an unconditional undertaking, which was given at the time of admission. If the Court also supports such cases, the sanctity of a contract is also broken forever. It is also stated by the learned counsel for the third respondent that the petitioner was admitted to the Institution under a nominal fee of Rs.3,000/- per mensem whereas the Government has fixed an annual fee of Rs.1,72,000/- per seat/student. The third respondent has also stated that it is only because it is a charitable institution, it gave such a concession so that the society may be benefited at large and if the petitioner ultimately withdraws from the agreement, it is the Society that loses.....
(iii) Writ Petition No.16878 of 2003 (Dr. Biju Paul v. Tamil Nadu Medical Council):-
16. On a perusal of the records placed before this Court and on an analysis of the rival contentions made on behalf of either parties and based on the decisions cited, it is seen that there is no statutory obligation or a duty cast on the respondents to issue the certificates as required by the petitioner. The petitioner, having not fulfilled the service obligations under the agreement and the bond entered into between himself and the third respondent, cannot seek for a remedy as prayed for, invoking the writ jurisdiction of this Court.....
(iv) Writ Petition No.30947 of 2015 (P.Beula Bell Ninja v. The Registrar, Tamil Nadu Nursing Council and another):-
11. ... the petitioner has bounden duty to serve the subsidiaries, as per the agreement, which was admittedly violated. As stated earlier, the second respondent-College has got no obligation to issue those certificates demanded by the petitioner, that too, after six years of leaving the Institution. Thus, the conduct of the second respondent in refusing to return the certificates is justified by the learned counsel appearing for the second respondent. These decisions are applicable to the facts of the case, which would make the Court to accept the contention of the second respondent.
9. The learned counsel appearing for the appellant (writ petitioner) submitted that the Tamil Nadu Education Rules are made applicable to all collegiate institutions within Tamil Nadu, which form part of a University or constituent or affiliated colleges of a University are recognized by virtue of Rule 8 thereof; Rule 34 of the Tamil Nadu Education Rules stipulates that no pupil who previously studied in a recognized secondary school shall be admitted to another recognized secondary school unless he/she represents a Transfer Certificate in the prescribed form from that school showing the particulars mentioned therein; the Transfer Certificate is a statutory certificate issued under the Tamil Nadu Education Rules, which are held to be statutory Rules by this Court.
9.1. The Transfer Certificate is a statutory certificate as per the rules cited supra and therefore, it has to be issued irrespective of the contractual agreement between the management and the student.
10. It is further submitted by the learned counsel appearing for the appellant that the Course Completion Certificate is also a statutory certificate as the same is required for the purpose of registration of B.Sc., Nursing degree with the Tamil Nadu Nurses and Midwives Council, which is a statutory body constituted under the Tamil nadu Nurses and Midwives Act, 1926; the regulations of the second respondent / University do not deal with the Transfer Certificate and hence, the Tamil Nadu Education Rules, which is applicable to all Collegiate Institutions in the State of Tamil Nadu has to be treated as applicable with regard to the issue of those certificates; therefore, the learned counsel submitted that though Transfer Certificate and course completion certificate and conduct certificates are issued by the Institution, they are necessarily statutory certificates for all legal purposes.
10.1. This contention cannot be accepted, as the Tamil Nadu Education Rules nowhere contemplates issuance of conduct certificate and the course completion certificate. The requirement of course completion certificate for registration under B.Sc., Nursing degree with the Tamil Nadu Nurses and Midwives Council (which is a statutory body constituted under the Tamil nadu Nurses and Midwives Act, 1926) cannot be interpreted to mean that the issuance of course completion certificate is a statutory certificate to be issued under the enactment. It may be an institutional certificate or a statutory certificate. When the statute does not expressly state that the institution has to issue the certificate, it cannot be said that it is a statutory certificate.
11. The learned counsel appearing for the appellant further submitted that the Indian Nursing Council has issued two circulars, dated 29.08.2011 and 23.09.2011, whereby, it has termed the practice of taking service bonds from students and forcefully retaining their original certificates as unethical practice and directed that it be stopped immediately; in the Resolutions approved by the governing body for improvement of Nursing Educational Standards under Section 16 of the Indian Nursing Council Act, Resolution 12 declares that withholding of original certificates and marks card will be considered as unethical practice, so also the obtaining of service bonds, which will entail penal action against such institutions.
12. The learned counsel further submitted that the appellant is entitled to get all statutory certificates including TC and Course completion certificate from the second respondent; as regards Sponsorship Obligation, the appellant had offered to pay some compensation for breaking the bond, but the second respondent is only keen on the pound of flesh like Shylock and has been successfully withholding the certificates for the past six years, due to which the appellant has suffered her higher education. Hence, the appellant prays to allow the writ appeal.
13. Admittedly, the petitioner joined the course of B.Sc Nursing, sponsored by CSI Diocese, Vellore and entered into the Sponsorship Obligation Agreement.
14. The nurses work tirelessly to identify and protect the needs of the individual. Beyond the time-honored reputation for compassion and dedication lies a highly specialised profession, which is constantly evolving to address the needs of Society. From ensuring the most accurate diagnoses, to the ongoing education of the public about critical health issues; nurses are indispensable in safeguarding public health.
15. Nursing can be described as both an art and a science; a heart and a mind. At its heart, lies a fundamental respect for human dignity and an intuition for a patients needs. This is supported by the mind, in the form of rigorous core learning. Due to the vast range of specialisms and complex skills in the nursing profession, each nurse will have specific strengths, passions and expertise.
16. In this case, the writ petitioner / appellant thinks that money is a key motivating factor. But when the situation improves and money becomes sufficient or abundant, it loses its importance. Security, good working conditions, opportunity for promotion, mental satisfaction, status, etc., usually become more important.
17. Marx said that work should always be an expression of personality and never become just an instrument of livelihood. The concept of work is invested with varying degrees of moral evaluation. Calvin said that man, in order to prove worthy of Gods Creation, was morally obliged to work; that is, to work for the production of wealth. Wealth, he asserted, was not for enjoyment but for the investment, that is, for further production of wealth.
18. Some kinds of work are regarded as more fulfilling or more dignified. Thus the terms vocation, career or profession, or occupation, all carry slightly higher prestige than the word job. Without understanding the significance, the appellant is refusing to work for the needy. The refusal is unjustified. Therefore, the appellant is not entitled to ask for return of certificate.
19. Under the circumstances, the writ appeal is liable to be dismissed and it is dismissed accordingly. No costs. Consequently, the connected MPs are closed.
(S.V. J.,) & (S.R.T. J.,) 05.10.2018 Index : yes / no Web : yes / no speaking order / non-speaking order srk S.VIMALA, J., AND S.RAMATHILAGAM, J., srk W.A.No.2057 of 2013 & M.P.Nos.1 & 2 of 2013 05.10.2018 Justice S.Vimala Judge High Court, Madras 22.09.2018 For consideration Pre-Delivery Judgment in Writ Appeal No.2057 of 2013 & M.P.Nos.1 & 2 of 2013 Justice S.Vimala To The Hon'ble Mrs. Justice S.Ramathilagam, Judge, High Court, Madras. Pre-Delivery Judgment in Writ Appeal No.2057 of 2013 & M.P.Nos.1 & 2 of 2013 To The Hon'ble Dr. Justice S.Vimala and The Hon'ble Mrs. Justice S.Ramathilagam Most Respectfully submitted: S.Ramkumar Pvt. Secy., to the Hon'ble Judges.