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2019 DIGILAW 422 (KER)

Sam. K. Sumesh, S/o. Kunjukunju v. Director, Institute of Human Resources Development (IHRD)

2019-06-06

P.V.ASHA

body2019
JUDGMENT : The petitioner challenges proceedings initiated against him in Exts.P5, P6, P8 and P9 for recovery of liquidated damages on the ground that he did not pass M.Tech Degree course undergone under QIP. 2. The petitioner is an Assistant Professor in the 2nd respondent College under the 1st respondent. While working there, he underwent M.Tech degree course under the Quality Improvement Programme [QIP), during 2010-12. He rejoined duty on 10.08.2012 after completing the course. When the respondents called for the course completion certificate, he informed that, he had to clear one more paper and sought time for production of the degree certificate. Thereupon the respondent issued Ext.P5 letter followed by Exts.P6 and P8, directing him to remit the liquidated damages i.e. towards the salary drawn by him during the period he underwent M.Tech Degree course. By Ext.P5 letter he was directed to remit the liquidated damages as per the Rules. By Ext.P6 letter he was directed to remit an amount of Rs.20,70,950/-[Rupees twenty lakh and seventy thousand nine hundred and fifty only) towards liquidated damages as per the bond executed by him. Along with Ext.P6 letter the details regarding the liquidated damages claimed for the period from 18.7.2010-16.7.2012 was also furnished by the Principal. 3. The writ petition is filed disputing the liability of the petitioner, on the ground that, the bond does not contain any provision that one has to pass the examination. According to the learned counsel for the petitioner 'successful completion of the course' does not mean that the petitioner should pass the examination. According to him, he need complete the course with due discipline. 4. The respondents have filed a counter affidavit, justifying their action in issuing the impugned proceedings for recovering the liquidated damages from him. 5. Having heard the learned Counsel for the petitioner, the learned Standing Counsel for the IHRD and the learned Government Pleader, it is seen that admittedly petitioner has undergone M.Tech course after executing Ext.P1 bond. The provisions in that bond would show that, the petitioner as well as the sureties have agreed for refunding the payment made to him during the course of higher studies/liquidated damages, on conditions specified therein as and when demanded. The provisions in that bond would show that, the petitioner as well as the sureties have agreed for refunding the payment made to him during the course of higher studies/liquidated damages, on conditions specified therein as and when demanded. The bond starts with : “-----(name and address of the petitioner-the bounden and his sureties) do hereby bind ourselves and each of us and each of the heirs, executors, executors and administrators jointly and severally to pay to the Director, IHRD (hereinafter called “the Institute”) on demand the sum equivalent to the amount spent by IHRD towards the pay and allowances paid round to the next thousand plus Rs.10000 (Rupees Ten Thousand only) as liquidated damages together with interest thereon at the rate of ten percent per annum on the date of demand or if payment is made in a country other than India, the equivalent of the said amount in the currency of that country converted at the official rate of exchange between that country and India and all costs between attorney and client and all charges and expenses that shall or may have been incurred by IHRD”. 6. It further proceeds with the following conditions:- “WHEREAS the Institute have in their order No.EA3/11063/2009/HRD(3) dated 15th July 2010 agreed to pay the bounden during the period of the said course an allowance equal to his pay and allowances which he would have drawn but for him undergoing the said course which the institute might give during the period of the said course and to treat the period of higher studies and the period of travel to and fro as duty and service, qualifying for increment, leave and pension if it will otherwise count. AND WHEREAS the IHRD have agreed to meet the said expenses on condition that immediately after successful completion of the higher studies within the prescribed period, the bounden shall serve the institute in any Department/Organization in any capacity as may be directed by the institute for a minimum period of five years and also subject to the terms and conditions hereinafter appearing and the bounden and sureties have agreed to the same.” 7. Conditions (a) to (k) are further provided as the obligations and clause (g) and (k) which are relevant in this case read as follows: “In the event of the bounden xxxx xxxx (g) Failing to complete the higher studies successfully as aforesaid, or discontinuing the higher studies without the explicit prior permission of IHRD, or xx (k) Not conforming to or observing the other rules and conditions subject to which he had been deputed for the higher studies, as the bounden and sureties shall forthwith pay to the IHRD on demand all monies paid to the bounden or spent by IHRD on his account by way of deputation allowance, tuition fees, scholarship, etc, fees, travelling expenses, study tour expenses, etc plus a penalty at the rate of ten percent on the whole amount to be remitted to IHRD in respect of the said higher studies xxxxx” 8. Going by the provisions in the bond, it is clear that, the petitioner and the sureties have agreed for refund of the pay and allowances the petitioner has drawn for the period during which he underwent M.Tech degree course, in the event of his failure to complete his studies successfully. It would also show that in the event of non-payment, the respondents are free to recover the same along with liquidated damages from the petitioner and his sureties. 9. The Learned counsel for the respondent rightly contended that the purpose of sending the petitioner for higher studies is defeated as he did not pass the examination even now and therefore there is nothing illegal in their action, in the light of the judgment of the Apex Court in Sant Longowal Instt of Engg. & Tech & Anr. Vs. Suresh Chandra Verma, (2013) 10 SCC 411 , which was also relating to demand for liquidated damages where the appellant after availing study leave for completing his Ph.D studies, did not acquire the same. In para 15 of the judgment is held as follows:- “The above mentioned provision has a laudable object to achieve. A Government servant or person like the respondent is given study leave with salary and allowances etc. so as to enable him to complete the course of study and to furnish the certificate of his successful completion, so that the institute which has sanctioned the study leave would achieve the purpose and object for granting such study leave. A Government servant or person like the respondent is given study leave with salary and allowances etc. so as to enable him to complete the course of study and to furnish the certificate of his successful completion, so that the institute which has sanctioned the study leave would achieve the purpose and object for granting such study leave. The purpose of granting study leave with salary and other benefits is for the interest of the Institution and also the person concerned so that once he comes back and joins the institute the students will be benefited by the knowledge and expertise acquired by the person at the expense of the institute. A candidate who avails of leave but takes no interest to complete the course and does not furnish the certificate to that effect is doing a disservice to the institute as well as the students of the institute. In other words, such a person only enjoys the period of study leave without doing any work at the institute and, at the same time, enjoys the salary and other benefits, which is evidentially not in public interest. Public money cannot be spent unless there is mutual benefit. Further, if the period of study leave was not extended or no decision was taken on his representation, he could have raised his grievances at the appropriate forum.” 10. The contention of learned Counsel for the petitioner that successful completion means only completion of the course and it is nowhere insisted that one should pass the examination or that since no period is prescribed for passing the examination and since petitioner has completed the course and rejoined duty in 2012 and has been working for more than 5 years after rejoining, the respondents cannot take any action against him, is unsustainable. One cannot expect that the institute where he works sent him for higher studies under the QIP for mere completion of the course and he need not pass the examination or that successful completion of the course means mere completion of the course. It cannot be said that there would be any improvement in quality (QIP) by mere completion of the course. It is seen that respondent have taken steps demanding liquidated damages when petitioner did not produce his pass certificate even after about 7 years of the completion of the course. It cannot be said that there would be any improvement in quality (QIP) by mere completion of the course. It is seen that respondent have taken steps demanding liquidated damages when petitioner did not produce his pass certificate even after about 7 years of the completion of the course. The respondents have demanded the expenses incurred by them during the period of his study along with penalty of Rs.10000, along with interest for which they have furnished a calculation statement also along with Ext P6, which is seen issued in terms of Ext P1 bond. Therefore, I do not find any reason to interfere with the action of the respondents. However, as it is pointed out that interest is claimed at exorbitant rate and that compound interest is claimed, the respondent shall consider the said question in case the petitioner submits a representation. The writ petition is accordingly dismissed.