HC tells DMER to relieve doctor from bond service, GMC directed to Return Certificates Withheld for not Fulfilling Bond Terms
Madras High Court
Chennai: Holding that authorities cannot exercise their "right of lien" over the educational certificates, the Madurai bench of Madras High Court recently directed the Dean of Government Chengalpattu Medical College Hospital to return the original certificates of a doctor. Further, the HC bench of Justice G.R. Swaminathan also directed the authorities to relieve the doctor from bond service.
After completing MBBS, the petitioner doctor got admitted to MD Paediatrics course at Changalpattu Medical College Hospital. At the time of admission she executed a bond undertaking to serve the State of Tamil Nadu for two years after completion of the course. In the event of failure to honour the undertaking, the petitioner was liable to pay a sum of Rs 40 lakhs towards liquidated damages. Later, the bond period was reduced to one year and the quantum of the damages to Rs 20 lakhs.
However, the petitioner doctor argued that while pursuing her PG medical education, she rendered "covid duty", which she wanted to be treated as bond service. She relied on the certificate issued by the Dean of the Medical College in this regard. She argued that this certificate was issued to avail incentive marks in the recruitment process being conducted by MRB for the post of Assistant Surgeon.
At this outset, the bench referred to the court order dated 25.04.2024 in the case of Dr. Yedupati Kondala Rao where after referring to the earlier orders passed by the Madras High Court, the court had concluded that the covid duty performed by the P.G. students shall be treated as bond service.
"Having held so, the question of going into the purpose of issuance of certificate need not be gone into. I however refrain from going into the factual aspects," observed the Court.
Noting that only the Dean of the college could certify the period for which the petitioner rendered COVID duty, the Court further observed that the counsel for the authorities pointed out that the certificate relief by the petitioner made it appear as if she had done COVID duty up to 15.05.2023.
"Of-course, this is improbable. It is for this reason, I leave it to the fourth respondent to re-visit the issue and determine the actual period for which the petitioner carried out covid duty," the Court observed in this regard.
However, going back to the primary issue- the question of whether there can be a lien on the petitioner's certificates, the bench cited the Supreme Court's order in the case of R.D. Saxena vs Balram Prasad Sharma and the single-bench HC order in the case of A. John Paul Vs. State of Tamil Nadu.
Holding that educational certificates cannot be retained, the single judge bench had specifically held that the Certificates, Mark Sheets, and Conduct Certificates are all properties which cannot be transferred at all. The property which is transferable alone can be transferred. Even by means of an agreement a property which cannot be transferred cannot be a subject of transfer under the guise of the agreement.
"The right of lien has been set out in Sections 170, 171 and 221 of the Indian Contract Act, 1872. Section 170 talks about Bailee's particular lien. Section 221 states that Agent has lien on the principal's property under certain circumstances. Obviously, the respondents are neither “bailees” nor “agents”," the Court observed.
The Court noted that the authorities argued that since there was an express contract providing for lien, they were entitled to retain the certificates of the petitioner. "This argument overlooks a fundamental element. Section 171 which can be the only source of the right of lien makes abundantly clear that this right can be exercised only on goods. R.D.Saxena had already authoritatively laid down what can be characterized as goods. The defence of the respondents fails the Saxena test," the Court observed in this context.
Therefore, granting relief to the doctor, the Court also directed the authorities to formally relieve the petitioner from the bonded service. It ordered,
"I hold that the respondents cannot exercise the right of lien over the petitioner's educational certificates. The fourth respondent is directed to return the petitioner's original certificates forthwith and without delay. The second respondent is directed to formally relieve the petitioner from the bonded service. This shall be done within a period of four weeks from the date of receipt of a copy of this order."
To read the order, click on the link below:
https://medicaldialogues.in/pdf_upload/madras-high-court-order-247254.pdf
