Ashish Goel v. Railtel Corporation of India Ltd. and Another

1. This writ petition seeks refund of the amount of Rs.50,000/given by the petitioner to the respondent No.1/employer inasmuch as the petitioner left the services within the period of two years, and the terms and conditions were that if the petitioner leaves the service before two years, the petitioner will pay an amount of Rs.50,000/-.

2. Before the issue of recovery or entitlement in favour of the petitioner is decided, it will have to be decided whether the respondent has or has not been caused any loss, and if loss has been caused then how much. 2013:DHC:948 WP(C) No.2752/2010 These aspects are relevant as per Sections 73 and 74 of the Contract Act, 1872 and which provisions will come into play. These questions are disputed questions of fact which require evidence to be led by the parties and which cannot conveniently be decided in a writ petition.

3. In my opinion, matters such as these contractual matters have to be decided by the civil forum i.e. either by the Civil Court or through arbitration inasmuch as counsel for the respondent No.1 states that there was an arbitration clause in the contract of appointment.

4. In contractual matters the issue of hostile discrimination does not arise as forfeiture is dependent on facts of each case. Moreover, the concept of equality under Article 14 is a positive concept and Article 14 cannot be taken aid of to commit an illegality, assuming someone else has not been imposed the bond condition. There is also no violation of any policy which is alleged in the petition.

5. Dismissed with the aforesaid observations giving liberty to the petitioner to approach the appropriate forum.

VALMIKI J. MEHTA, J FEBRUARY 20, 2013 ak