Jiby P. Chacko v. Principal, Mediciti School Of Nursing, Ghanpur, Ranga Reddy District

1. The petitioner hails from Kottayam District in Kerala. She joined the three-year Nursing Course in the first respondent Nursing School, namely, Mediciti School of Nursing ('Nursing School' for brevity). Allegedly she paid a hefty fees of Rs. 53,000/- and for that purpose her parents mortgaged the only house they possessed. She joined the course on 5-8-1999 and would be completing the course by January, 2003. She passed first year course and is likely to appear for the examination of second year course in January/February, 2002. On 6-9-2001 she was permitted to leave the Nursing School situated at Ghanpur to enable her to meet her relatives, who came from Kerala. On her return the Principal of the Nursing School summoned her and she was told that she is no longer eligible to continue nursing course as her character is not good. The Principal extracted a confession from the petitioner by force. On 20-9-2001 the impugned order/letter was issued to the father of the petitioner. The said letter reads as under.

This has reference to the discussion regarding your daughter Ms. Jiby P. Chacko held with you and her local guardian Mr. P.G. Kuriakose on September 12, 2001 in the office of the undersigned.

You are aware that you daughter Ms. Jiby P. Chacko has been actively indulging in acts of gross misconduct within and also outside the premises of this institution. You are also aware that in her attempts to cover up such acts she has taken recourse to falsehood and also falsification of official records. You are also aware that she was counselled and warned several times in the past in such matters but to no avail.

Her attitude and wilful acts have imposed a serious risk on her personal safety. Her example has jeopardized the discipline and reputation of the institution. Her continuation here is therefore neither in her interest nor in the interest of the institution.

Considering all aspects, including the fact that she has been wilfully and consistently indulging in misconduct disregarding repeated warnings, Ms. Jiby P. Chacko is hereby terminated from the training in this institution.

2. Challenging the order terminating her training in Nursing School the petitioner filed this writ petition praying this Court to issue a writ of mandamus declaring the impugned letter as illegal, arbitrary and violative of principles of natural justice and further direct the Nursing School to continue the petitioner in the Nursing Course.

3. While ordering Notice before admission, this Court by order dated 5-11-2001 suspended the impugned order till 31-12-2001. The Principal of the Nursing School has filed an application being WVMP No. 3199 of 2001 praying to vacate the suspension order. As the matter involves education career of a student, the matter was heard finally with the consent of both the learned Counsel and the same is being disposed of at the admission stage.

4. The learned Counsel for the petitioner Sri P. Srinivasa Yadav submits that the petitioner has been rusticated duly terminating her training without following the principles of natural justice, that confession was obtained by the Principal by force which is the basis for passing the order and that the allegations of misconduct were never enquired into by the Principal. Therefore, the learned Counsel would submit that the action of the Nursing School is grossly in violation of principles of natural justice and it also violates fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India.

5. Sri Koka Satyanarayana Rao, learned Counsel for the first respondent submits that Private Nursing School is not an instrumentality of the State within the meaning of Article 12 of the Constitution of India and therefore not amenable to jurisdiction under Article 226 of the Constitution of India. He has drawn my attention to the relevant paragraphs of the counter-affidavit to submit that on many occasions the petitioner obtained permission in writing to leave the hostel for private visits, but on 12-8-2001 without written application and authorised permission of the Warden of the hostel visited the house of a person who is not her relative or local guardian. Again on 6-9-2001 the petitioner left the hostel and came to Mediciti Hospital in Hyderabad to go to Nursing School by the hostel bus which was to leave at 9-00 p.m. This is unbecoming of a student of Nursing. The same was intimated to the local guardian and the father of the petitioner. The local guardian discussed with the first respondent and took away the petitioner on 8-9-2001. Again on 12-9-2001 the local guardian and the father of the petitioner discussed with the first respondent and agreed for termination of training course of the petitioner. He also submitted that on a written request from the father of the petitioner on 8-10-2001, the balance of fees of Rs. 14,100/- was refunded by way of Bank draft. He made a passionate plea to sustain the impugned order, as according to the first respondent the acts committed by the petitioner are not in consonance with the training course for Nurses. The learned Counsel has placed reliance on the judgment of the Supreme Court in VST Industries Limited v. VST Industries Workers Union, (2001) 1 SCC 298, in support of the contention that the petitioner is not amenable to the jurisdiction under Article 226 of the Constitution of India. On the other hand, the learned Counsel for the petitioner, however, relied on the judgment of the Supreme Court in U.P. State Co-operative Land Development Bank v. Chandra Bhan Dubey, , to submit that directions and orders can be issued to any person or authority discharging public functions and public duties and therefore the writ petition is maintainable.

Whether writ lies against private nursing school ?

6. Article 12 of the Constitution of India defines 'the State' mainly for the purpose of Part III of the Constitution of India. The three beginning words of the said Article "in this part....." makes this very clear. For the purpose of Part-111 the 'State' is defined to include the Central Government, the Parliament, the State Government, the State Legislature, all the local authorities in India and other authorities under the control of the Government. The definition of the State in Article 12 serves a specific purpose. If any legislative, quasi-legislative or administrative or executive action is inconsistent with the fundamental rights, the same would be void. The constitutional injunctions in Part III of the Constitution are enforced by the Supreme Court and High Court by exercising power of judicial review. Fundamental rights of the citizens being the heart and soul of the Constitution without which democracy would be a teasing illusion, the definition of State in Article 12 received expansive construction in constitutional adjudication. The decisions are galore. (See Ramana Dayaram Shetty v. IAAI, , UP. Warehousing Corporation v. Vijay Narayan, , Som Prakash Rekhi v. Union of India, AIR 1981 SC 212, Ajay Hasia v. Khalid Mujib Sehravardi, , Ramachandraiah v. Union of India, , Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly, , Chairman, Pradhan Bank v. Vijay Kumar, .

7. All the above decisions adopt the method of purposive interpretation. In these different tests for deciding whether an agency or concern is a 'State" were evolved. Krishna, Iyer, J., in Som Prakash Rekhi case (supra) culled out five tests from Ramana Dayaram Shetty case (supra). These are:

1. One thing is clear that if the entire share capital of the corporation is held by the Court, it would go a long way towards indicating that the corporation is an instrumentality or agency or Government.

2. Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.

3. Whether the corporation enjoys monopoly status which is State conferred or State protected would be relevant factor.

4. If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.

5. Specifically, if a department of Government is transferred to a corporation it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of the Government.

8. In Ajay Hasia case (supra), Bhagwati, J., (as he then was) visualised six tests from Ramana Dayaram Shetty case adding the following additional test to five tests deduced in Som Prakash Rekhi case (supra).

Whether the financial assistance of the State is so much as to meet almost entire expenditure of the corporation it would afford some indication of the corporation being impregnated with Governmental character.

9. To my mind these six tests can be broadly categorised as (i) pervasive State control test; (ii) financial participation/control test and (iii) supplemental Government activity test. If there is deep and pervasive control by the Government in the establishment, management and organisation of the agency whether or not the functions discharged are sovereign functions or prerogative duties or public duties, it would be State within the meaning of Article 12. If any instrumentality or agency has substantial share capital participation by the Government or financial assistance and grants that would broadly satisfy the financial participation test. In applying the test of supplemental Government activity the fact that the Government Department is transferred to a corporation or that the corporation enjoys the monopoly or that the corporation or agency discharges public functions or sovereign functions would be relevant.

10. The Nursing School in question was established by an organisation called Share Medical Care. It is a society registered under A.P. (Telangana Area) Public Societies Registration Act. It is a non-profitable charitable institution. Its objective is to establish an integrated complex for international collaborative exchange in the field of health and allied sciences, information technology, research education and for providing health care in super speciality hospitals and also to provide rural health care. As a society established under the said Societies Act, it is a body of private persons with certain common objectives. The managing committee is elected by the general body and there is no deep and pervasive control insofar as the management and organisation of the Nursing School is concerned. It is not the case of the petitioner that the Nursing School is getting substantial financial aid nor its expenditure is met by the State exchequer. It is also a fact that the Government is not financially participating in the venture. Therefore, the Nursing School does not satisfy the pervasive control test and financial participation test. Does it satisfy the supplement Government activity test?

Whether Supplemental Government Activity Test is Satisfied?

11. This aspect of the matter requires examination of the questions whether the activities of Government Department are transferred to Nursing Schools and whether the Nursing Schools discharge supplemental Government/public functions.

At this juncture, it is necessary to notice the nature of public health care system. It is trite that the primary duty of the State is to protect the life of its citizens. The life is not a mere animal existence. The right to life and liberty must enable the human being to enjoy every facet and faculty of life. Unhealthy person can never be said to be enjoying the right to life fully. Indeed, Article 47 of the Constitution of India obligates the State to rise to the level of nutrition standard of living of the people and improve public health. It is the directive principle of the Constitution that the State shall improve public health as its primary duty. Historically the Sovereign whether they are monarchies, kingdoms or chieftains gave importance for improvement of public health and towards that end provided hospitals for dispensing free medical care.

12. There cannot be two opinions that right to life is a fundamental right under Article 21 of the Constitution of India. In Vincent Parikurlangara v. Union of India, (1987) 2 SCC 165, the Supreme Court dealt with the legal obligations of the State to prohibit sale and use of banned drugs. In that context, it was observed that

.....healthy body is the very foundation of all human activities and in a welfare State it is the obligation of the State to enforce creation and sustenance of conditions of good health.

The same view was reiterated in Pandit Paramananda Kataria v. Union of India, , and apex Court observed that Article 21 of the Constitution of India casts obligation on the State to preserve and protect life and take all necessary steps for protecting health of the people. The right to healthy life was held to be a fundamental right in State of Punjab v. M.S. Chawla, . It is not only right to life, but it is compelling constitutional obligation of the State to protect citizens from ailments and diseases and create a society which is free from ailments and diseases.

13. The system of medical education including Nursing Education has an important role in helping the State in its activities to achieve the objects of Article 47 of the Constitution of India. Medical Education in India had always been the monopoly of the Government. Nursing forms an important and inseparable tertiary health care service since the days prior to Florence Nightingale. All the nursing courses were therefore part of Medical Colleges till recently. The Regulation of Nursing education and training has been taken care of by the Indian Nursing Council Act, 1947 (hereinafter called 'the Act').

14. The Act was made for constituting Indian Nursing Council in order to establish a uniform standard of training for Nurses, Midwives and Health Visitors in India. The Council constituted under the Act is empowered to recognise various qualifications to enable a person to be enrolled in the State Nursing Register as a Nurse, Midwife or Health Visitor and to recognise qualification. A person with a Degree/Diploma in Nursing, Midwifery etc., cannot be permitted to practice the profession unless the qualification is recognised by the Nursing Council. It is the plenary body to grant recognition to institutions for granting any qualification, prescribe syllabus, standards of proficiency required for the candidates of nursing examinations and to conduct examination leading to grant of certificates/degrees. No person or body of persons or organisation is empowered to conduct courses and award certificates unless such body is recognised by the Nursing Council.

15. The International Council of Nurses described the unique functions of Nurse, saying that a Nurse is to assist the individual sick in the performance of those activities contributing to health or its recovery. (See Syllabi and Regulations, 1986 prescribed by the Indian Nursing Council). The Indian Nursing Council also recognises Nursing as profession interdependent of allied professions and occupations for promoting, restoring and maintaining health and in preventing diseases. Therefore, there cannot be any doubt that nursing care is part and parcel of public health care system. On this point, I may conclude that "heath care" and its allied functions are part of Government activity. In this background, let us examine whether the Nursing School is amenable to writ jurisdiction of this Court.

16. Medical Education and Nursing Education was in public sector. As there was growing demand for more medical seats and Nursing seats it was thrown open and Private Medical Colleges and Nursing Colleges were permitted to be established. However, State continued to retain the power of regulation either under the Nursing Council Act or the State Education Act. Private Educational Institutions were permitted merely to supplement the efforts of the State in educating the people. As held by the Supreme Court in Unnikrishnan v. State of A.P., ,

"private educational institutions do not perform an independent activity and they perform the activity supplemental to principal activity carried on by the State."

The educational institutions would not attract alumni unless the degrees and diplomas offered by them are recognised by the affiliating University or recognising agency like Nursing Council. The recognition granted by the University to a private educational institution is not exclusively in the interest of such private institution, but in the interest of general public and the nation. In Unnikrishnan's case it was held.

The private educational institutions merely supplement the effort of the State in educating the people as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory - in the interest of general public-upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution of India.....In our opinion, no Government, authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part-III .....To reiterate, what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Articles 14 and 15. If so, it cannot confer such immunity upon its affiliates,

17. As the private Nursing School carry out supplemental Government activity it must be held to be limited in exercise of its powers by provisions in Part-III of the Constitution of India. The first respondent cannot act arbitrarily in dealing with students and escape the rigor of Article 14 of the Constitution. As already noticed, Medical and Nursing Education was part of Governmental activity which now as supplemental activity stands transferred to the Nursing Schools in private sector.

18. Though a private Nursing School performs activities supplemental to principal Government activity, as there is no pervasive control and financial participation (though there is control and regulation for different purposes), the Nursing School cannot be held to be 'State' for the purpose of Article 12 of the Constitution. No doubt, when an agency performs supplemental Government activity, its activities are to be disciplined by the fundamental rights including Articles 14 and 21 of the Constitution. Nevertheless, the fact that it is performing supplemental Government activity gives abundant indication as to its amenability to the jurisdiction under Article 226 of the Constitution, which aspect is considered in the paragraphs infra.

19. Thus far, I have examined the question of amenability from the point of view of only Article 12 of the Constitution of India. In addition to this, it is well settled that even if an agency or organisation cannot be termed as a 'State' or instrumental of the State, still under Article 226 of the Constitution of India, the High Court can issue a writ compelling such organisation to perform its duties if such organisation discharges public functions.

20. In R v. Panel On Takeovers, (1987) 1 All. ER 564, the Court of appeal was considering the question whether the Panel on Takeovers and Mergers which was an unincorporated organisation without legal personality is amenable to judicial review. The Panel on Takeovers was a self-regulating organisation overseeing and regulating takeovers and mergers in corporate sector. The said panel, however, had no statutory, prerogative or common law powers. M/s. Datafin, for takeover of which company two other companies were vying with each other, complained to the Panel that both the companies acted in concert contrary to the terms of the takeover Code. The complaint was rejected by the Panel. The High Court refused to entertain an application for judicial review on the ground that it had no jurisdiction to entertain the application. Before the Court of appeal, the Panel on Takeovers contended that the Courts' power of judicial review is confined to bodies whose power is derived solely from the legislation or exercise the prerogative power. The contention was rejected holding that any body discharging public duties is amenable to judicial review. The noble and learned Master of the Rules, Sir John Donaldson (as he then was) observed:

In determining whether the decisions of a particular body were subject to judicial review, the Court was not confined to considering the source of that body's powers and duties but could also look to their nature. Accordingly, if the duty imposed on a body, whether expressly or by implication, was a public duty and the body was exercising public law functions the Court had jurisdiction to entertain an application for judicial review of that body's decisions. Having regard to the wide-ranging nature and importance of the matters covered by the City Code on Takeovers and Mergers and to the public consequences of non-compliance with the code, the Panel on Takeovers and Mergers was performing a public duty when prescribing and administering the Code and its rules and was subject to public law remedies. Accordingly, an application for judicial review of its decisions would lie in an appropriate case.

21. In Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust v. V.R. Rudani, , the Supreme Court of India considered the scope and extent of power of High Court to issue writs to those bodies performing public functions though such bodies cannot strictly fall within the realm of Article 12 of the Constitution of India. The Supreme Court after referring to De Smith's 'Judicial Review of Administrative Action* and relevant case-law held:

The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental right as well as non-fundamental rights. The words "Any person or authority" used in Article 226 are, therefore not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duly imposed on the body. The duly must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.

22. It was also held that the private educational institutions like Government institutions discharge public functions by way of and Regulations of the affiliating University and therefore their activities are not devoid of any public character. It was also held that if any private organisation discharges public functions and public duties a writ of mandamus can be issued under Article 226 of the Constitution of India.

23. In De Smith's is 'Judicial Review of Administrative Act' (5th Edn. By Lord Woolf and Jowell) 'public function' is explained as under:

A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public Junctions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance a body is performing a public Junction when it provides "public goods" or other collective services, such as health care, education and personal social services, from funds raised by taxation.

24. Therefore, I hold that Private Nursing School is amenable to writ jurisdiction as it satisfies the test of supplemental Government activity. In any event, it discharges a public function and must be subjected to power of judicial review by this Court.

25. The learned Counsel for the first respondent has placed reliance on the judgment of the Supreme Court in VST Industries case (supra) in support of his contention that the writ petition is not maintainable against the first respondent. In VST Industries case the Supreme Court categorically came to a conclusion that the activity of a company manufacturing and selling cigarettes in establishing a canteen in the factory does not amount to any public duty and therefore writ cannot be issued. , There cannot be any demurral to say that no writ would lie if an agency does not discharge public functions or public duties. Indeed, in coming to the conclusion the Supreme Court in VST Industries case (supra) relied on the judgment in Shri Anadi Mukta Sadguru S.M.V.S.S.J.M.S. Trust case (supra).

The question of arbitrariness

26. It is well settled that a student of a College or a School cannot be rusticated without following the principles of natural justice and without conducting enquiry. In Board of High School v. Ghanshyam, AIR 1962 SC 1110, a Statutory Board cancelled examination results of three candidates and debarred them from appearing at the examinations for one year. The charge against them was that they used unfair means in the examinations. The action was impugned as violating principles of natural justice which was upheld by the High Court. In appeal before the Supreme Court a Constitution Bench of the Supreme Court considered whether or not the College rules provide for 'audi alteram partem' when a student's examination is cancelled as the authority would be acting quasi-judicially principles of natural justice should be followed. It was laid down that:

......Though therefore there is nothing express one way or the other in the Act or the Regulations casting a duty on the Committee to act judicially, the manner of the disposal, based as it must be on materials placed before it, and the serious effects of the decisions of the Committee on the examinee concerned, must lead to the conclusion that a duty is cast or, the Committee to act judicially in this matter particularly as it has to decide objectively certain facts which may seriously affect the rights and careers of examinees, before it can take any action in the exercise of its power under Rule 1(1). We are therefore of opinion that the Committee when it exercises its powers under Rule 1(1) is acting quasi-judicially and the principles of natural justice which require that the other party, (namely, the examinee in this case) must be heard, will apply to the proceedings before the Committee.

27. In the Board of High School and Intermediate Examination v. Kumari Chittra Srivastava, , the Board sought to cancel the examination of a candidate on the ground of shortage of attendance. The High Court allowed the writ petition holding that cancellation of examination involves quasi-judicial approach and if opportunity had been given to a candidate she might have persuaded the Board not to cancel the examination. The Supreme Court after referring to Ghansyam 's case (supra) affirmed the High Court judgment and held:

Whether a duty arises in a particular case to issue a show-cause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalized has no defence but on the nature of the order proposed to be passed. We agree with the High Court that the impugned order imposed a penalty. The petitioner had appeared in the examination and answered all the question papers. According to her she had passed. To deny her the fruits of her labour cannot but be called a penalty. We are unable to appreciate the contention that the Board in "cancelling her examination" was not exercising quasi-judicial functions. The learned Counsel urges that this would be casting a heavy burden on the Board. Principles of natural justice are to some minds burdensome but this price a small price indeed - has to be paid if we desire a society governed by the rule of law. We should not be taken to have decided that this rule will also apply when a candidate is refused admission to an examination. We are not concerned with this question and say nothing about it.

28. In matters of student discipline all actions of educational institutions cannot be termed as quasi-judicial. The matters of domestic discipline where for non-compliance with curricular instructions or deviant student behaviour resulting in inconvenience to other students etc., the educational institution would only be acting administratively. However, in the matter of explusion or rustication, the same is not the case. This was explained in Glynn v. Keele University, (1971) 2 A11.ER 89. The Vice-Chancellor of Keele University took disciplinary action against a number of students who are found standing or sitting naked in the University Campus by fining ten pounds and expelling them from the hostel. The action was questioned by one student. The Court noticed the distinction -the nature of administrative powers and quasi-judicial powers of an educational society in the following manner :

The context of education societies involves a special factor which is not present in other contexts, namely, the relation of tutor and pupil i.e., the society is charged with the supervision and upbringing of the pupil under tuition, be the society a university or college or a school. Where this relationship exists it is quite plain that on the one hand in certain circumstances the body or individual acting on behalf of the society must be regarded as acting in a quasi-judicial capacity - expulsion from the society is the obvious example. On the other hand, there exists a wide range of circumstances in which the body or individual is concerned to impose penalties by way of domestic discipline. In these circumstances it seems to me that the body or individual is not acting in a quasi-judicial capacity at all but in a magisterial capacity, i.e., in the performance of the rights and duties vested in the society as to the upbringing and supervision of the members of the society.

29. Lord Justice Viscount Pennycuick on the above premise allowed the application holding:

I must next decide whether, in exercising his powers in the present case, the Vice-Chancellor complied with the requirements of natural justice. I regret that I must answer that question without hesitation in the negative. It seems to me that once one accepts that the Vice-Chancellor was acting in a quasi-judicial capacity he was clearly bound to give the plaintiff an opportunity of being heard before he reached his decision on the infliction of a penalty, and if so what penalty. In fact he did not do so. I have already read his account of what happened. It seems to me that having by 29th and 30th June received clear and reliable evidence that the incident had indeed occurred and that the offenders included the plaintiff, he ought certainly as a matter of natural justice to have sent for the plaintiff before he left Keele, and given him an opportunity to present his own case. With all respect to the Vice-Chancellor I think that he failed in his duty by omitting to send for the plaintiff and, instead, by writing him a letter merely announcing his decision.

30. The imputations for terminating the training course as disclosed in the impugned order are of serious nature. The Principal came to a conclusion that (i) the petitioner has been actively engaging in acts of gross misconduct within and outside the premises of institution; (ii) to cover up such acts the petitioner has taken recourse to falsehood and falsification of official records; (iii) the petitioner's example has jeopardized the discipline and reputation of the institution and her continuance is not in the interest of institution; (iv) the petitioner was counselled and warned several times in the past in such matters; and (v) the petitioner has been wilfully and consistently indulging in misconduct disregarding warnings and her attitude and wilful acts have imposed serious risk on her personal safety and her continuance in the institution is neither in her interest nor in the interest of the institution. The first respondent has not placed any material before me to show that the petitioner was warned earlier. Indeed, it is the case of the first respondent that the petitioner went out on many occasions after obtaining permission in writing to leave the hostel for private visits. No contemporaneous record of basis for conclusions in the impugned order are placed before this Court. The petitioner was terminated from the school in most capricious and arbitrary manner. If only an enquiry had been conducted, the petitioner would have an opportunity like in the case of Kumari Chittra Srivastava case (supra). No enquiry was conducted and based on some discussion with the father and the local guardian on 12-9-2001 in the office of the Principal, the impugned order was passed. This procedure adopted by the Principal of the Nursing School is illegal and cannot be sustained.

31. It is trite law that natural justice is part of Article 14 and arbitrary action in violation of principles of natural justice would attract wrath of Article 14. In Union of India v. Tulsiram Patel, , it was held that violation of rule of natural justice results in arbitrariness which is the same as discrimination violating Article 14 and therefore violation of principles of natural justice is violation of Article 14.

32. The petitioner has explained that a confession was forcibly obtained from her by the Principal and no enquiry was conducted. It is not denied that any enquiry preceded before issuing the impugned letter. A feeble attempt is made that at the request of the father the balance of fee of Rs. 14,100/- was also refunded to him. In my considered opinion the same does not amount to waiver especially when the petitioner is alleging that her fundamental rights under Articles 14 and 21 of the Constitution of India are violated.

33. The principle of estoppel and waiver do not dilute fundamental rights (See Basheshar Nath v. CIT, , and Olga Tellis v. Bombay Municipal Corporation, . Therefore, whether or not balance of tuition fee was refunded and whether or not the petitioner by force gave letter accepting her truance, do not estop her from seeking relief under Article 226.

34. As no enquiry is conducted before terminating the training course of the petitioner, this Court shall refrain from considering other disputed questions of facts though both the learned Counsel vehemently made submissions in support of their respective contentions on the questions of fact. However, it must be observed that a nursing student by joining in a Nursing School and impliedly agreeing to adhere to the College Code of Conduct does not lose her right to life and liberty. What is good or what is bad must be left to the whims of the student especially when the student is a major and normally she is presumed to know what is good for her. The 'right to be left alone' is integral to right to liberty. The fact that the Principal or any elder person does not appreciate a particular species of deviant conduct of a student does not mean that the right of the student to pursue and complete her nursing course must be withdrawn. The action of the respondent-Nursing School in terminating the Nursing Training in the said institution cannot be sustained and is liable to be set aside.

35. Accordingly, the writ petition is allowed. A direction shall issue to the first respondent to permit the petitioner to complete the three year Nursing Course without any let or hindrance having regard to the fact that the student has already completed about two years of her course. There shall be no order as to costs.