Patient admitted as Dengue later said as“aplastic anaemia” which is called blood cancer = patient died within 24 Hours - No Medical treatment Case record produced - Medical negligence proved - No expert need be examined = “It is admitted case of the opposite parties that as per the above tests, the disease suffered by the patient is known as ‘Aplastic Anemia’ which is called Blood Cancer in common language and not Dengue. It is not the case of the opposite parties that the patient was given the treatment of cancer or that the complainant was advised to shift his minor son (patient) to some other hospital for better treatment of cancer where the treatment of cancer was available. The patient was brought to the hospital of the opposite parties on 14.10.1998 and died on 15.10.1998. Thus, the opposite parties have rightly been held negligent and deficient in service while treating the minor son of the complainant. Though the opposite parties have taken the plea that they had given proper treatment to the patient, but before the District Forum the opposite parties failed to produce the treatment chart of the patient which proves the act and conduct of the opposite parties with respect to the treatment given to the patient. It is the case where the complainant has lost his hope due to death of his son aged about 10 years.” = expert opinion is not necessary in all cases where the negligence and deficiency in service of the treating doctor is established from the facts and circumstances of the case. Treating doctor can be involved in a criminal offence of medical negligence when there is some evidence of higher degree but the civil liability of the treating doctor for the wrong treatment given to a patient can be fastened on the basis of the facts and circumstances of the case.= Following observations of the Apex Court in the case of V. Kishan Rao (Supra) may be reproduced to clarify this aspect further:- “50. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.” 10. In view of the above enumerated position in law, the least that can be expected of the petitioner / opposite parties was to produce the treatment record of the deceased child so as to enable the foras below to conclude if the petitioners had taken a reasonable care of the deceased patient or they were negligent in their duty to treat the child. From the observations of the State Commission reproduced above, it is evident that the petitioners failed to produce the treatment chart of the deceased patient in their evidence. In the absence of the treatment record, which could have thrown light on the issue of medical negligence, we are of the view that the foras below have rightly concluded that the petitioners were negligent in the treatment of the deceased child. Thus, we do not find any illegality or infirmity in the impugned order which may call for interference by this Commission in exercise of the revisional jurisdiction. The revision petition is accordingly dismissed in liminie with no order as to costs.

published in http://164.100.72.12/ncdrcrep/judgement/00130816112150467RP46842012.htm

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO.4684 OF 2012

(From the order dated 12.09.2012 in  First Appeal No.238/2005 of the

Haryana State Consumer Disputes Redressal Commission, Panchkula)

                                                                      WITH         

IA/1/2012

IA/2/2012

(C/COPY & STAY)

1. Sun Flag Hospital Research Centre                                        ..…. Petitioners

Sector – 16A

Faridabad

Through its Authorise Representative    

2. Dr. Prem Kumar

Consultant/Medical Officer

Sun Flag Hospital Research Centre

Sector 16A, Faridabad

                                                               

                                             Versus

Shri Raghubir Singh Poswal                                                        ..... Respondent

S/o Sh. Pehlad Singh

R/o village Fulwarian

Tehsil Palwal

District Faridabad

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioners   :  Shri Rajesh Chhabra, Advocate

Pronounced on :  16^th August, 2013

ORDER

PER SURESH CHANDRA, MEMBER

This revision petition is directed against the order dated 12.09.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (‘State Commission’ for short) in First Appeal No.238 of 2005 by which the State Commission dismissed the first appeal of the petitioners filed against the order dated 05.07.2004 passed by the District Consumer Forum, Faridabad in CC No.399. Vide its order, the District Forum allowed the complaint of the respondent and granted the following relief:-

“…..In the circumstances, the complaint of the complainant succeeds and to satisfy the grouse of the complainant, following order is passed

1.      The respondents are ordered to pay Rs.Two Lakhs along with interest @ 12% p.a. w.e.f. the filing of the present complaint till its realization.

2.      The respondents are also ordered to pay Rs.5000/- on account of mental agony and Rs.500/- as litigation expenses.

The respondents are ordered to comply with the order of the Forum within 30 days after receiving the copy of the present order……….”

2.         The brief facts of this case which are relevant for its decision are that Vikas aged about 10 years, son of the respondent / complainant, was suffering from fever and was brought to Dr.Rahul Verma at the Verma Children Hospital, Palwal. Dr. Verma noticed symptoms of Dengue fever and hence he referred the patient to the OPs/petitioners. Vikas was admitted in the hospital of the petitioners on 14.10.1998 where he was kept in the ICU and tests were carried out on him. However, Vikas was declared dead at 9.40 a.m. on 15.10.1998 due to cardiac arrest. Alleging negligence during course of treatment and carrying of tests as well as blood transfusion, the complainant/respondent filed the consumer complaint before the District Forum in which allegations of wrong diagnosis leading to incorrect line of treatment were also made.

On the other hand, according to the petitioners/OPs, the patient was brought to their hospital on 14.10.1998 at 5.40 p.m. and after his admission, he was examined by doctor on duty who indicated possibility of Dengue but when the patient was checked by Dr. Prem Kumar, OP No.2, it was noticed that the patientwas  having acute breathlessness and air hunger and hence tests were carried out in the hospital lab. The blood test reports indicated the following results:-

Found in the patient as per tests	Normal requirement of this age group Normal values
Blood (HB) 2.5. grams	12 to 14 grams
White blood 3600	4,000 – 11,000
Platelets 40,000	1,50,000 to 4,00,000 lac
Nutro Pahils 26%	45-75

3.         According to the petitioners, the tests results ruled out the possibility of Dengue fever. The reports pointed towards “aplastic anaemia” which is called blood cancer in common language and not Dengue as claimed by the complainant/respondent. It was submitted by the OPs in their written statement that the patient could not be improved in spite of their best efforts and unfortunately died on 15.10.1998.

4.         Both the parties adduced their evidence before the District Forum by way of affidavits. After hearing the parties and considering the evidence before it, the District Forum allowed the complaint in terms of its order reproduced above. The State Commission also upheld the same and dismissed the appeal filed by the petitioners both on grounds of delay as well as on meritsvide its impugned order.

5.         We have heard learned Shri Rajesh Chhabra, Advocate for the petitioners. Learned counsel has submitted that the impugned orders of the Fora below are perverse and against the well established principles of law and hence not sustainable.  He said that the State Commission has not applied its judicious mind while passing the impugned order and contended that as the first appellate court it has failed to appreciate the fact that the treatment given to the patient was on the basis of the investigation reports.  He pointed out that neither the complainant/respondent had led any documentary evidence which could be suggestive of the fact that the patient was suffering from dengue nor any test/investigation of dengue was conducted on the patient or any such report was produced before the attending doctor i.e. petitioner no. 2.  

Since the first investigation report of the deceased patient was suggesting acute blood anaemia/blood cancer, the attending doctor had no other alternative but to start the treatment on the basis of this report. 

 Learned counsel argued that both the Fora below did not appreciate the fact that no specific negligence was proved by the respondent in the trial court by leading evidence of a medical expert.  On the other hand, he submitted that the reply filed by the petitioners before the District Forum clearly indicates that the deceased patient was rightly treated by the petitioners by giving immediate blood transfusion to improve the H.B. level and other symptoms.  Learned counsel, therefore, pleaded that in these circumstances, no liability could be fastened on the petitioners for the alleged negligence for which there was no proof before the Fora below and hence the revision petition should be allowed and the impugned order be set aside.

7.         We have considered the submissions made by learned counsel for the petitioners and perused the record.  We may note that this revision petition has been filed against the concurrent orders passed of the Fora below holding the petitioners guilty of negligence.  The main contention of learned counsel for the petitioners is that treatment of the deceased patient given by the petitioners was in accordance with the requirement of the patient based on the initial investigation reports and there is no expert evidence to establish any negligence on the part of the petitioners in this regard.  

No doubt that there is no expert opinion produced by the respondent/complainant before the Fora below to establish the negligence on the part of the petitioners.  However, it is not in dispute that the patient was admitted in the petitioners hospital on 14.10.1998 and died on the next day i.e. on 15.10.1998.  Such a sudden death of the patient within 24 hours of his admission into the hospital of the petitioners by itself raises suspicion about the line of treatment adopted by the petitioners while treating the deceased patient and would necessarily call for submission of further details in respect of the treatment and reasons for the sudden death of the patient in spite of the treatment.  

This also raises a question, if the condition of the patient was really so serious as was likely to result into his death so soon, was the hospital of the petitioners well-equipped to deal with such an emergency?  If not, the question would arise as to whether the petitioners briefed the respondent/complainant about the condition of the patient and to refer him to a better equipped hospital?  It is here that we find that the fora below came to the conclusion about negligence on the part of the petitioners.  

In this context, the State Commission while upholding the order of the District Forum has observed as under:-

“It is admitted case of the opposite parties that as per the above tests, the disease suffered by the patient is known as ‘Aplastic Anemia’ which is called Blood Cancer in common language and not Dengue.  It is not the case of the opposite parties that the patient was given the treatment of cancer or that the complainant was advised to shift his minor son (patient) to some other hospital for better treatment of cancer where the treatment of cancer was available.  The patient was brought to the hospital of the opposite parties on 14.10.1998 and died on 15.10.1998.  Thus, the opposite parties have rightly been held negligent and deficient in service while treating the minor son of the complainant.  Though the opposite parties have taken the plea that they had given proper treatment to the patient, but before the District Forum the opposite parties failed to produce the treatment chart of the patient which proves the act and conduct of the opposite parties with respect to the treatment given to the patient.  It is the case where the complainant has lost his hope due to death of his son aged about 10 years.”  

8.         In view of the facts and circumstances of this case, the State Commission referring to the ratio laid down by the Apex Court in the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital And Another (2010) CTJ 868/2010 5 Supreme Court Cases 513 has rightly concluded that expert opinion is not necessary in all cases where the negligence and deficiency in service of the treating doctor is established from the facts and circumstances of the case.  Treating doctor can be  involved in a criminal offence of medical negligence when there is some evidence of higher degree but the civil liability of the treating doctor for the wrong treatment given to a patient can be fastened on the basis of the facts and circumstances of the case.

9.         Following observations of the Apex Court in the case of V. Kishan Rao (Supra) may be reproduced to clarify this aspect further:-

“50. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself.  In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.” 

10.       In view of the above enumerated position in law, the least that can be expected of the petitioner / opposite parties was to produce the treatment record of the deceased child so as to enable the foras below to conclude if the petitioners had taken a reasonable care of the deceased patient or they were negligent in their duty to treat the child.  From the observations of the State Commission reproduced above, it is evident that the petitioners failed to produce the treatment chart of the deceased patient in their evidence.  In the absence of the treatment record, which could have thrown light on the issue of medical negligence, we are of the view that the foras below have rightly concluded that the petitioners were negligent in the treatment of the deceased child.  Thus, we do not find any illegality or infirmity in the impugned order which may call for interference by this Commission in exercise of the revisional jurisdiction.  The revision petition is accordingly dismissed in liminie with no order as to costs. 

……………Sd/-……..………..

     (AJIT BHARIHOKE, J.)

      PRESIDING MEMBER

                                                            

  …………Sd/-…….……………

(SURESH CHANDRA)

MEMBER

SS/

No case was made out under sec.498 A, 304 B and 302 of I.P.C. = In view of the specific case of the prosecution that the accused had poured kerosene on the deceased and thereafter set her on fire and had gagged her mouth with a piece of cloth to prevent her from screaming, which version has been unfolded by PWs 1, 2, 3 and 4, it is difficult to see as to how the charge against the accused-appellant under Section 304-B of the IPC could be sustained. The evidence of PW-12 Thiru Subramaniyam, Investigating Officer of the case, that the investigation did not reveal any harassment and ill-treatment of the deceased by the accused prior to her death makes the prosecution case against the accused under the aforesaid Section as well as under Section 498A of the IPC wholly unsustainable. Insofar as the offence under Section 302 of the IPC is concerned, there is no eye witness to the occurrence. PWs-1 to PW-4 though examined as eye witnesses cannot be understood to have actually witnessed any of the events that would be crucial for the determination of the liability of the accused-appellant. By the time they had reached the place of occurrence the deceased was already engulfed in flames. The fact that PW-6 had stated that the deceased had come to his clinic unaccompanied by PWs 1, 2, 3 and 4 who in their depositions have claimed otherwise is too significant a contradiction to be ignored. There is a further contradiction in the evidence of PWs 1 and 2 on the one hand and PW-12 on the other. According to PW-1 and PW-2 they had made a complaint to the police station immediately after the occurrence and thereafter went to the hospital whereas PW-12 had deposed that the complaint was lodged after PW-1 and PW-2 had returned from the hospital. The evidence of PW-10 Dr. N.Usha that the deceased herself had stated that she was injured due to bursting of the stove while she was cooking casts a further doubt on the prosecution story. The absence of the proof of seizure of the material objects, made by the Mahazar (Exh. P-10) and the contradiction between the oral testimony and the contents of Exh. P-9 with regard to the actual place of occurrence, in our considered view, further demolishes the credibility of the prosecution version. In the above facts the view taken by the Trial Court in acquitting the accused cannot be held to be a view impossible of being reached. We, therefore, allow this appeal, set aside the order of the High Court dated 27.04.2006 and restore the order of acquittal dated 16.07.2003 passed by the learned Trial Court.

                    PUBLISHED IN     http://judis.nic.in/supremecourt/imgst.aspx?filename=40660     
   REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.462 OF 2008

Venkatesan                              ...  Appellant(s)
                                   Versus
Rani & Anr.                             ...  Respondent(s)



                               J U D G M E N T

RANJAN GOGOI, J.

1.    What are the true contours of the  jurisdiction  vested  in  the  High
Courts under Section 397 read with Section  401  of  the  Code  of  Criminal
Procedure, 1973 (hereinafter for  short  ‘the  Code’)   while  examining  an
order of acquittal passed  by  the  Trial  Court?   Whether  the  principles
governing the exercise of  the  aforesaid  jurisdiction  have  been  rightly
determined by the High Court in the present case and,  therefore,  had  been
correctly applied  to  reverse  the  order  of  acquittal  of  the  accused-
appellant passed by the learned Trial Court and to remit the matter  to  the
said Court for a de novo disposal, is the further question  that  arises  in
the present appeal filed against an order dated  27.04.2006  passed  by  the
High Court of Judicature at Madras.

2.    The appellant is the husband of one  Anusuya  who,  according  to  the
prosecution, was put to death by  the  appellant  on  19.4.2000  by  pouring
kerosene on her and thereafter setting her on fire.   The  marriage  between
the appellant and the deceased took place sometime in the year 1998  on  the
own accord  of  the  parties.   According  to  the  prosecution,  after  the
marriage, the appellant raised demands for  various  dowry  items  including
cash.  As such demands were  only  partially  met  by  the  parents  of  the
deceased the appellant, according  to  the  prosecution,  harassed  and  ill
treated the deceased and eventually caused her death on 19.4.2000.   On  the
basis of the aforesaid  facts  alleged  by  the  prosecution,  the  accused-
appellant was put to trial for commission of offences under  Sections  498A,
304-B and 302 of the Indian Penal Code.  The Trial  Court,  on  the  grounds
and reasons assigned, which will be duly  noticed,  acquitted  the  accused-
appellant.  Aggrieved, the mother of the  deceased  invoked  the  revisional
jurisdiction of the High Court to challenge the acquittal.  By the  impugned
judgment and order dated 27.04.2006 the High Court held that  the  order  of
acquittal passed by the learned Trial Court suffered from  certain  inherent
flaws which justified a reversal of  the  same  and  for  remission  of  the
matter for a fresh decision in accordance with law and  the  directions  set
out in the said order of the High Court.

3.    We have heard Mr. K.K. Mani, learned counsel  for  the  appellant  and
Mr. M. Yogesh Kanna, learned counsel appearing for the State.

4.    Learned counsel for the appellant has submitted that the acquittal  of
the accused-appellant made by the learned Trial Court is  based  on  a  full
and complete consideration of the evidence and materials on record.   It  is
submitted that cogent reasons have been assigned by the learned Trial  Court
in support of the acquittal ordered by it.  It is also  contended  that  the
High Court has erroneously taken the view that  the  order  of  the  learned
Trial Court lacks clarity on the vital aspects of the case  as  outlined  in
the order of the High Court dated 27.04.2006.  All  the  issues  highlighted
by the High Court in its order dated 27.04.2006 have, in  fact,  been  dealt
with by the learned Trial Court.  The reversal of the acquittal by the  High
Court is, therefore, contended to be wholly unjustified.

5.    Opposing the contentions advanced on behalf of the  accused-appellant,
learned counsel for the State has urged that no  acceptable  basis  for  the
impugned acquittal is evident in the  order  of  the  learned  Trial  Court.
Learned counsel has supported the findings recorded by  the  High  Court  by
contending that  there  is  lack  of  clarity  and  absence  of  categorical
findings on vital issues of the case which  makes  it  imperative  that  the
impugned order of  remand  made  by  the  High  Court  by  its  order  dated
27.04.2006 be maintained. No interference with the same would be justified.

6.    To answer the questions that have  arisen  in  the  present  case,  as
noticed  at the  very  outset,  the  extent  and  ambit  of  the  revisional
jurisdiction of the High Court, particularly  in  the  context  of  exercise
thereof in respect of a judgment of acquittal, may be briefly noticed.   The
law in this regard is well settled by a catena of decisions of  this  Court.
Illustratively,  as  also  chronologically,  the   decisions   rendered   in
Pakalapati Narayana Gajapathi Raju vs. Bonapalli Peda Appadu[1], Akalu  Ahir
v. Ramdeo Ram[2], Mahendra Pratap Singh v. Sarju  Singh[3],  K.  Chinnaswamy
Reddy v. State of A.P.[4]  and Logendranath Jha v. Polai Lal  Biswas[5]  may
be  referred  to.   Specifically  and  for  the  purpose   of   a   detailed
illumination on the subject the contents of paras 8 and 10 of  the  judgment
in the case of Akalu Ahir v. Ramdeo Ram (supra) may  be  usefully  extracted
below.
        “8. This Court, however, by  way  of  illustration,  indicated  the
        following categories of cases which would justify the High Court in
        interfering with a finding of acquittal in revision:
              (i) Where the trial court has  no  jurisdiction  to  try  the
           case, but has still acquitted the accused;
              (ii) Where the trial court  has  wrongly  shut  out  evidence
           which the prosecution wished to produce;
              (iii) Where the appellate court has wrongly held the evidence
           which was admitted by the trial court to be inadmissible;
              (iv) Where the material evidence  has  been  overlooked  only
           (either) by the trial court or by the appellate court; and
              (v) Where the acquittal is based on the  compounding  of  the
           offence which is invalid under the law.
        These categories were, however,  merely  illustrative  and  it  was
        clarified that other cases of similar nature can also  be  properly
        held  to  be  of  exceptional  nature  where  the  High  Court  can
        justifiably interfere with the order of acquittal.”


        “10. No doubt, the appraisal of evidence by the trial Judge in  the
        case in hand is not perfect or free from flaw and a Court of appeal
        may well have felt justified in disagreeing  with  its  conclusion,
        but from this it does not follow that  on  revision  by  a  private
        complainant, the High Court is entitled to re-appraise the evidence
        for itself as if it is acting as a Court of appeal and then order a
        re-trial. It is unfortunate that  a  serious  offence  inspired  by
        rivalry and jealousy in the matter of election  to  the  office  of
        village Mukhia, should go unpunished. But that can  scarcely  be  a
        valid ground for ignoring or for not strictly following the law  as
        enunciated by this Court.”

      The observations in para 9 in  the  case  of  Vimal  Singh  v.  Khuman
Singh[6] would also be apt for  recapitulation  and,  therefore,  are  being
extracted below.
         “9. Coming to the ambit of power of the High  Court  under  Section
         401 of the Code, the High Court in its revisional  power  does  not
         ordinarily interfere with judgments  of  acquittal  passed  by  the
         trial court  unless  there  has  been  manifest  error  of  law  or
         procedure. The interference with the order of acquittal  passed  by
         the trial court is limited only to exceptional  cases  when  it  is
         found that the order under revision suffers from glaring illegality
         or has caused miscarriage of justice or when it is found  that  the
         trial court has no jurisdiction to try the case or where the  trial
         court has illegally shut out the evidence which otherwise ought  to
         have been considered or where the material evidence which  clinches
         the issue has been overlooked. These are the  instances  where  the
         High Court would be justified in  interfering  with  the  order  of
         acquittal. Sub-section (3) of Section 401 mandates  that  the  High
         Court shall  not  convert  a  finding  of  acquittal  into  one  of
         conviction.  Thus,  the  High  Court  would  not  be  justified  in
         substituting an order of acquittal into one of conviction  even  if
         it is convinced that the accused deserves conviction. No doubt, the
         High Court in exercise of its revisional power  can  set  aside  an
         order of acquittal if it comes  within  the  ambit  of  exceptional
         cases enumerated above, but it cannot convert an order of acquittal
         into an order of conviction. The only course left to the High Court
         in such exceptional cases is to order retrial.”

7.     The  above  consideration  would  go  to  show  that  the  revisional
jurisdiction of the High Courts while examining an  order  of  acquittal  is
extremely narrow and ought to be exercised only in  cases  where  the  Trial
Court had committed a manifest error of law or procedure or  had  overlooked
and ignored relevant and material evidence thereby  causing  miscarriage  of
justice.  Re-appreciation of evidence is an exercise  that  the  High  Court
must refrain from while examining an order of acquittal in the  exercise  of
its revisional jurisdiction under the Code.  Needless to say, if within  the
limited parameters, interference of the High Court  is  justified  the  only
course of action that can  be   adopted  is    to  order  a  re-trial  after
setting aside the acquittal.  As the language of Section  401  of  the  Code
makes it amply clear there is no power vested in the High Court  to  convert
a finding of acquittal into one of conviction.

8.    In the present case, the  prosecution  had  examined  as  many  as  12
witnesses.  PW-1 Thiru Srinivasan is the father of the deceased whereas  PW-
2 Thirumathi Rani (petitioner before the High Court) is  the  mother.   Both
the aforesaid witnesses had stated in their depositions that  there  was  no
demand for dowry by the accused  and  that  the  accused  and  deceased  had
married on their own volition.  
The two witnesses had  further  stated  that
whatever was given by them as dowry items was voluntary.
Insofar as  demand
for cash (allegedly made on three different occasions)  is concerned,  PW-1 and PW-2 could not account for the source from which the aforesaid  payments were allegedly made.
PW-1 Thiru Srinivasan and  PW-2  Thirumathi  Rani  are
admittedly not eye witnesses to the occurrence because they had come to  the
house where the accused and the  deceased  had  lived  only  after  noticing
smoke from the said  house.   PW-3  Thiru  Vincent  (brother-in-law  of  the
deceased) and PW-4 Thirumathi Mary (sister of the  deceased)  are  also  not
eye witnesses to the occurrence.
It must also be taken  note  of  that  all
the aforesaid witnesses, i.e., PW-1 to PW-4 had deposed that when  they  had
reached the house of the deceased they saw her in flames  and  the  deceased
was unable to speak as there was  a  piece  of  cloth  in  her  mouth.  
The
aforesaid part of the prosecution story,  however,  does  not  find  support from  the  testimony  of  PW-11  Dr.  Santhakumar  who  had  conducted   the postmortem of the  deceased  inasmuch  as  in  cross-examination  PW-11  had clearly stated that he did not  find  any  blisters  in  the  mouth  of  the deceased.
PW-5 Thiru  Balaraman  did  not  sign  the  mahazar  (Exh.  P-10)
showing the seizure of a burnt kerosene can, a partially burnt saree  and  a
matchbox allegedly  recovered  from  the  place  of  occurrence.
PW-6  Dr.
Prakash had deposed that the deceased was brought to  his  clinic  at  about
7.30 a.m. on 19.4.2000 but considering the burn  injuries  suffered  he  had
referred the case to the government hospital.
PW-7  Dr.  Vijayalakshmi  had
deposed that though a magistrate had come to  the  hospital  to  record  the
dying declaration, the deceased was unconscious and not  in  a  position  to
make any statement.
PW-10 Dr. N. Usha  who  was  working  in  the  casualty
section of the Chennai Kilpauk Government Hospital  had  deposed  that  when questioned, the deceased Anusuya had reported to her that  she  got  injured due  to  bursting  of  the  stove  while  she  was  cooking.   
PW-11     Dr. Santhakumar had conducted the postmortem and the most  significant  part  of
his evidence has already been noticed hereinabove, namely, that he  did  not
find any blisters in the mouth of the deceased.  
PW-12  Thiru  Subramaniyam
is the Investigating Officer of the case who had, inter alia,  deposed  that the investigation did not disclose that the accused  had  harassed  or  ill-treated the deceased Anusuya prior to her death.

9.    In view of the specific case of the prosecution that
the  accused  had
poured kerosene on the deceased and thereafter  set  her  on  fire  and  had gagged her mouth with a piece of cloth to prevent her from screaming,  which version has been unfolded by PWs 1, 2, 3 and 4, 
it is difficult  to  see  as to how the charge against the accused-appellant under Section 304-B  of  the IPC  could  be  sustained.   The  evidence  of  PW-12  Thiru   Subramaniyam,
Investigating Officer of the case, that the  investigation  did  not  reveal
any harassment and ill-treatment of the deceased by  the  accused  prior  to
her  death  makes  the  prosecution  case  against  the  accused  under  the
aforesaid  Section  as  well  as  under  Section  498A  of  the  IPC  wholly
unsustainable.
Insofar as the offence under  Section  302  of  the  IPC  is
concerned, there is no eye witness to the occurrence.
PWs-1 to PW-4  though
examined as eye witnesses cannot be understood to  have  actually  witnessed
any of the events that  would  be  crucial  for  the  determination  of  the
liability of the accused-appellant.  
By the time they had reached the  place
of occurrence the deceased was already engulfed in flames.   
The  fact  that
PW-6 had stated that the deceased had come to his  clinic  unaccompanied  by
PWs 1, 2, 3 and 4 who in their depositions have  claimed  otherwise  is  too
significant  a  contradiction  to  be   ignored.    
There   is   a   further
contradiction in the evidence of PWs 1 and 2 on the one hand  and  PW-12  on
the other.  
According to PW-1 and PW-2 they had  made  a  complaint  to  the
police station immediately after the occurrence and thereafter went  to  the
hospital whereas PW-12 had deposed that the complaint was lodged after  PW-1
and PW-2 had returned from the hospital.  
The  evidence  of  PW-10   Dr.  N.Usha that the deceased herself had  stated  that  she  was  injured  due  to bursting of the stove while she was cooking casts a  further  doubt  on  the
prosecution story.  
The absence of the proof  of  seizure  of  the  material
objects, made by the Mahazar (Exh. P-10) and the contradiction  between  the
oral testimony and the contents of Exh. P-9 with regard to the actual  place
of occurrence, in our considered view, further  demolishes  the  credibility
of the prosecution version.  
In the above facts the view taken by the  Trial
Court in acquitting the accused cannot be held to be a  view  impossible  of
being reached.  
Keeping in mind the  extremely  limited  keyhole  available
for a scrutiny of the foundation of the order of  acquittal  passed  by  the
learned Trial Court the reversal ordered by the High Court does not  commend
to us.  We have also noticed that the High Court had found the order of  the
learned Trial Court to be vitiated by lack of clarity on several  counts  as
specified in its  order  dated  27.04.2006.   The  said  deficiencies,  when
juxtaposed against the reasoning of the learned Trial Court, appear to  have
been adequately answered by the learned Trial Court  in  the  light  of  the
evidence and the material brought before it.

10.   For  the  aforesaid  reasons  we  find  it  difficult  to  accept  the
conclusion reached by the High Court in the present matter.  We,  therefore,
allow this appeal, set aside the order of the High  Court  dated  27.04.2006
and restore the order of acquittal dated 16.07.2003 passed  by  the  learned
Trial Court.

                                       ...………………………CJI.




                                        .........……………………J.
                                        [RANJAN GOGOI]
New Delhi,
August 19, 2013.

-----------------------
[1]   (1975) 4 SCC 477
[2]    (1973) 2 SCC 583
[3]    AIR 1968 SC 707
[4]    AIR1962 SC 1788
[5]    AIR 1951 SC 316
[6]     (1998) 7 SCC 223

-----------------------
14

Industrial Dispute Act - Since the claim was made after six years of termination, compensation only awarded to the workman = “Whether 18.02.86 termination of labour Shri Mohan Lal S/o Shri Dhanna Lal (Post-Mistri), who has been represented by Regional Secretary, Hind Mazdoor Sabha, Kota Cantt., from service by the Employer – Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division – Kota is legal and justifiable? If not, then applicant – labour is entitled to get what relief and compensation?”= In our opinion, interest of justice will be subserved if in lieu of reinstatement, the compensation of Rs.1,00,000/- (one lac) is paid by the appellant (employer) to the respondent (workman). We order accordingly. Such payment shall be made by the appellant to the respondent within six weeks from today failing which the same will carry interest @ 9% per annum. 23. The appeal is partly allowed to the above extent with no order as to costs.

                   published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40659                                         
   REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                 CIVIL  APPEAL NO.      6795         OF 2013
                  (Arising out of SLP(C) No.11305 of 2006)


           Assistant Engineer, Rajasthan State
           Agriculture Marketing Board, Sub-Division, Kota    … Appellant


                              Versus


           Mohan Lal                                          …Respondent








                                  JUDGMENT






           R.M. LODHA, J.




                       Leave granted.
           2.          The consequent relief to be granted to  the  workman
           whose termination is held to be illegal being  in  violation  of
           Section 25-F of the Industrial Disputes Act,  1947  (for  short,
           “ID Act”) is the sole question for our decision in this  appeal.
           
Were it not for the argument strongly pressed  by  the  learned
           counsel for the respondent that
 the delay in raising  industrial
           dispute in the absence of any such objection having been  raised
           by the employer before the Labour Court is no  ground  to  mould
           the relief of reinstatement, we would not  have  gone  into  the
           question which is already answered in a long line  of  cases  of
           this Court.
           3.          Mohan Lal, the workman, was engaged as  “Mistri”  on
           muster roll by  the  appellant,  employer,  from  01.11.1984  to
           17.02.1986.  On 18.02.1986,   the services of the  workman  were
           terminated. While doing so, the workman was  neither  given  one
           month’s notice nor was he paid one month salary in lieu of  that
           notice. He was also not paid retrenchment compensation.
           4.          In 1992, the workman raised industrial dispute which
           was referred by the appropriate government to the Labour  Court,
           Kota (Rajasthan) for adjudication. The dispute referred  to  the
           Labour Court reads as under:
                       “Whether 18.02.86 termination of  labour  Shri  Mohan
                       Lal S/o Shri Dhanna Lal (Post-Mistri), who  has  been
                       represented  by  Regional  Secretary,  Hind   Mazdoor
                       Sabha, Kota Cantt., from  service by the  Employer  –
                       Assistant  Engineer,  Rajasthan   State   Agriculture
                       Marketing Board, Sub-Division –  Kota  is  legal  and
                       justifiable? If  not,  then  applicant  –  labour  is
                       entitled to get what relief and compensation?”


           5.          The Labour Court in its award dated 03.02.1999  held
           that the workman had completed more than 240 days in a  calendar
           year and his services were terminated in violation of Section 25-
           F of the ID Act. Having held that,  the  Labour  Court  declared
           that the workman was entitled to be reinstated  with  continuity
           in  service and 30% back wages.
           6.          The employer was successful in challenging the above
           award before the Single Judge of  the  High  Court.  The  Single
           Judge in his judgment dated 23.08.2001 though  agreed  with  the
           Labour Court that the employer had terminated workman’s services
           in violation of Section 25-F but he was of  the  view  that  the
           Labour Court was not justified in directing the reinstatement of
           the workman  because  the  workman  had  raised  the  industrial
           dispute after 6 years of his  termination.    Relying  upon  the
           decision of this Court in  Balbir  Singh[1],  the  Single  Judge
           substituted the order of reinstatement by the compensation which
           was quantified at Rs.5,000/-.
           7.          The workman challenged  the  order  of  the  learned
           Single Judge in an intra-court appeal.  The  Division  Bench  of
           the High Court allowed the workman’s  appeal  on  19.11.2005  by
           relying upon the decision of this Court in Ajaib Singh[2].   The
           Division Bench restored the award passed by the Labour Court.
           8.           In Nagar Mahapalika[3], it was held by  this  Court
           that non compliance with the provisions of Section  6-N  of  the
           U.P. Industrial Disputes Act, 1947 (this  provision  is  broadly
           pari materia with Section 25-F), although, leads to the grant of
           a relief of reinstatement with full back wages and continuity of
           service in favour of the workman, the same would not  mean  that
           such relief is to be granted automatically or  as  a  matter  of
           course.  It was emphasised that the Labour Court must take  into
           consideration the relevant facts for exercise of its  discretion
           in granting the relief.
           9.          The same Bench that  decided  Nagar  Mahapalika3  in
           Municipal  Council,  Sujanpur[4],  reiterated  the  above  legal
           position.  That was a case where the Labour  Court  had  granted
           reinstatement in service with full back wages to the workman  as
           statutory provisions  were  not  followed.  The  award  was  not
           interfered with by the High Court.  However, this Court  granted
           monetary compensation in lieu of reinstatement.
           10.         In Mamni[5] following Nagar Mahapalika3, this  Court
           held that the reinstatement granted to the workman because there
           was violation of Section 25-F, was not  justified  and  modified
           the order of reinstatement by directing that the  workman  shall
           be compensated by  payment of a sum of  Rs.25,000/-  instead  of
           the order of the reinstatement.
           11.         In M.C. Joshi[6], this Court was concerned with  the
           situation which was  very  similar  to  the  present  case.  The
           workman in that case was  employed  as  a  daily  wager  by  the
           Uttaranchal Forest Development Corporation on  01.08.1989.   His
           services were terminated on 24.11.1991 in contravention  of  the
           provisions of Section 6-N of the U.P. Industrial  Disputes  Act.
           He had completed 240 days of continuous  work  in  a  period  of
           twelve months preceding the order of termination.   The  workman
           approached the Conciliation  Officer  on  or  about  02.09.1996,
           i.e., after a period of about  five  years.   The  Labour  Court
           granted to the workman, M.C. Joshi, relief of reinstatement with
           50% back wages.  In the writ petition filed by the  Corporation,
           the direction of reinstatement was  maintained  but  back  wages
           were reduced from 50% to 25%.  This Court substituted the  award
           of reinstatement by compensation for a sum of Rs.75,000/-*.
           12.         In Ashok Kumar[7], this Court was concerned with the
           question as  to  whether  the  Labour  Court  was  justified  in
           awarding relief of reinstatement in favour of  the  workman  who
           had worked as daily wager for two  years.  His  termination  was
           held to be violative of  U.P.  Industrial  Disputes  Act.   This
           Court held that  the  Labour  Court  should  not  have  directed
           reinstatement of the workman  in  service  and  substituted  the
           order of reinstatement by awarding compensation  of  Rs.50,000/-
           **.
           13.         In Keshab Deb[8], the termination of the workman who
           was a daily wager, was held illegal on diverse grounds including
           violation of the provisions of Section 25-F.   This  Court  held
           that even in a case where  order  of  termination  was  illegal,
           automatic direction for reinstatement with full back  wages  was
           not  contemplated.   The  Court   substituted   the   order   of
           reinstatement by an award of compensation of  Rs.1,50,000/-****.


           14.         In Jagbir Singh[9], the Court speaking  through  one
           of us (R.M. Lodha,J) in a case where the workman had worked from
           01.09.1995 to 18.07.1996 as a daily wager  granted  compensation
           of Rs.50,000/- to the workman in lieu of reinstatement with back
           wages*******.
           15.         It is not necessary to  refer  to  subsequent  three
           decisions of this  Court,  namely,  Laxmi  Kant  Gupta[10],  Man
           Singh[11] and Santosh Kumar Seal[12], where the  view  has  been
           taken in line with the cases discussed above.  As  a  matter  of
           fact in Santosh Kumar Seal12, this Court awarded compensation of
             Rs.40,000/-  to  each  of  the  workmen  who  were   illegally
           retrenched as they were engaged as daily wagers about  25  years
           back and worked hardly for two or three years.  It was held that
           the relief of reinstatement cannot be said to be  justified  and
           instead granted monetary compensation.
           16.         Recently in the case of Gitam Singh[13], this  Court
           speaking through one of us (R.M. Lodha,J)  on  consideration  of
           the most of the  cases  cited  above  reiterated  the  principle
           regarding exercise of judicial discretion by the Labour Court in
           a matter where the termination of the  workman  is  held  to  be
           illegal being in violation of Section 25-F in these words : “The
           Labour  Court  has  to  keep  in  view  all   relevant  factors,
           including  the  mode  and  manner  of  appointment,  nature   of
           employment,  length  of  service,  the  ground  on   which   the
           termination has been set aside and  the  delay  in  raising  the
           industrial dispute before  grant  of  relief  in  an  industrial
           dispute”.
           17.         Mr. Badri Prasad  Singh,  learned  counsel  for  the
           workman, however,  vehemently  contended,  which  was  also  the
           contention of the workman before the Division Bench,  that  plea
           regarding delay was  not  raised before the  Labour  Court  and,
           therefore, the delay in raising the  industrial  dispute  should
           not come in the way  of  the  workman  in  grant  of  relief  of
           reinstatement. He relied upon Ajaib Singh2. In  that  case,  the
           services  of  the  workman,  Ajaib  Singh  were  terminated   on
           16.07.1974.  Ajaib  Singh  issued  the  notice  of   demand   on
           18.12.1981.  No plea regarding delay was taken by  the  employer
           before the Labour Court. The Labour Court directed the  employer
           to reinstate Ajaib Singh with full back  wages.  The  award  was
           challenged before the High Court. The  Single  Judge  held  that
           Ajaib Singh was disentitled to relief  of  reinstatement  as  he
           slept over the matter for 7 years and confronted the  management
           at a belated stage when it might have  been  difficult  for  the
           management to prove the guilt of the workman.  The  judgment  of
           the Single Judge was upheld by the Division Bench. The  judgment
           of the Division Bench was challenged by the workman before  this
           Court. The Court was persuaded  by the grievance of the  workman
           that in the absence of any plea on behalf of  the  employer  and
           any evidence regarding delay, the workman could not be  deprived
           of the benefits under the I.D. Act merely on the  technicalities
           of law.  However, the Court was of the opinion that  on  account
           of  th  admitted  delay,  the  Labour  Court   ought   to   have
           appropriately moulded the relief by denying  some  part  of  the
           back wages.******
           18.   Ajaib Singh2, in our view, cannot be read as  laying  down
           an absolute proposition of law that where plea of delay  is  not
           raised by the employer, the  delay  in  raising  the  industrial
           dispute by the workman pales into insignificance and the  Labour
           Court will be  unjustified  in  taking  this  circumstance  into
           consideration for moulding the relief. On the contrary, in Ajaib
           Singh2, the Court said that on account of  admitted  delay,  the
           Labour Court ought to  have  appropriately  moulded  the  relief
           though this Court moulded the relief by denying the workman some
           part of the back wages.
           19.         In a subsequent  decision  in  Balbir  Singh1,  this
           Court observed that Ajaib Singh2 was confined to the  facts  and
           circumstances of that case. It is true that  in  Balbir  Singh1,
           the plea of delay was raised before the Industrial Tribunal  but
           we would emphasize the passage from Balbir Singh1 where  it  was
           said: “Whether relief to the workman should  be  denied  on  the
           ground of delay or it should be appropriately moulded is at  the
           discretion  of  the  Tribunal  depending  on   the   facts   and
           circumstances of the case.  No doubt the  discretion  is  to  be
           exercised judicially”.
           20.         We are clearly of the view  that  though  Limitation
           Act, 1963 is not applicable to the reference made under the I.D.
           Act but delay in raising industrial  dispute  is  definitely  an
           important circumstance which the Labour Court must keep in  view
           at the time of exercise of discretion irrespective of whether or
           not such objection has been raised by the other side. The  legal
           position laid down by this Court in Gitam  Singh13  that  before
           exercising its judicial discretion, the Labour Court has to keep
           in view all relevant factors including the mode  and  manner  of
           appointment, nature of employment, length of service, the ground
           on which termination has been set aside and the delay in raising
           industrial dispute before  grant  of  relief  in  an  industrial
           dispute, must be invariably followed.
           21.         Now, if the facts of the present case are seen,  the
           position that emerges is this:
the workman  worked  as  a  work-charged employee for a period from 01.11.1984 to 17.02.1986  
(in all he worked for 286 days during his employment).  
The services
           of the workman were terminated with effect from 18.02.1986.  
The workman raised the industrial dispute in  1992,  i.e.,  
after  6 years of termination. 
The Labour Court  did  not  keep  in  view
           admitted delay of 6 years in raising the industrial  dispute  by the workman. 
The judicial discretion  exercised  by  the  Labour
           Court is, thus, flawed and unsustainable.  
The Division Bench of the High Court was clearly in error in restoring  the  award  of the Labour  Court  whereby  reinstatement  was  granted  to  the workman. 
Though, the compensation awarded by  the  Single  Judge
 was too low and needed to be enhanced by the Division Bench  but surely  reinstatement  of  the  workman   in   the   facts   and
           circumstances is not the appropriate relief.
           22.          In  our  opinion,  interest  of  justice  will   be subserved if in  lieu  of  reinstatement,  the  compensation  of
           Rs.1,00,000/- (one lac) is paid by the appellant  (employer)  to  the respondent (workman). 
We order  accordingly.   Such  payment
shall be made by the appellant  to  the  respondent  within  si weeks from today failing which the same will carry interest @ 9% per annum.
           23.         The appeal is partly allowed  to  the  above  extent
           with no order as to costs.
                                                   ………………………J.
                                                   (R.M. Lodha)


                                                   ………………………J.
                                                   (Madan B. Lokur)
           NEW DELHI
           AUGUST 16, 2013.
-----------------------
           [1]    Balbir Singh v. Punjab Roadways; (2001) 1 SCC 133
           [2]     Ajaib  Singh  v.  Sirhind   Cooperative   Marketing-cum-
           Processing Service Society Limited and
                    Anr.; (1999) 6 SCC 82
           [3]    Nagar Mahapalika v. State of U.P. and Ors.; (2006) 5 SCC
           127
           [4]    Municipal Council, Sujanpur v. Surinder Kumar; (2006) 5
           SCC 173
           [5]    Haryana State Electronics Development Corporation Ltd. v.
           Mamni; (2006) 9 SCC 434
           [6]    Uttaranchal Forest Development Corporation v. M.C. Joshi;
           (2007) 9 SCC 353
           *     * Pg. 358; (2007) 9 SCC 353
                 “We are, therefore, of the opinion that  keeping  in  view
            the nat?
-----------------------
            12

Student - A fresh Mark Sheet not necessary to issue on improvement examination result when division not changed - “Whether Pandit Ravishankar Shukla University, Raipur (the University) is liable to issue mark sheet to the students, who are permitted to appear in the examination for improving division of M.Com examination (the subsequent-examination) under Ordinance 24 of the University (the Ordinance), even if the division does not change?”= The High Court answered the question in the affirmative. We disagree. Ordinance No.24 of the University does not oblige it to issue a fresh mark sheet to a student who does not improve his division on taking a subsequent examination held for improving the division.= Ordinance No. 24 entitles a student to take a repeat examination only to improve the division obtained. If there is no improvement in the division after the repeat examination, there is no occasion for the University to issue a fresh degree to that candidate. The question of issuing a fresh mark sheet, if there is an improvement in the marks after the repeat examination, simply does not arise from the plain language and scheme incorporated in Ordinance No. 24. 19. Under these circumstances there is no option but to set aside the Judgment and Order passed by the High Court and allow this appeal. We do so but with no order as to costs.

                                     published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40658       
       NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NO.……6794………..  OF 2013
                  (Arising out of SLP(C) No. 14896 OF 2013)



Pt.  Ravishankar Shukla University & Anr.      …..Appellants

                                  Versus

Gopal Mishra                                  …..Respondent


                               J U D G M E N T


Madan B. Lokur, J.


1. Leave granted.

2.    In the judgment under appeal, the High Court  of  Chhattisgarh  framed
the following question for adjudication, namely:-
           “Whether  Pandit  Ravishankar  Shukla  University,  Raipur  (the
           University) is liable to issue mark sheet to the  students,  who
           are  permitted  to  appear  in  the  examination  for  improving
           division of M.Com examination (the subsequent-examination) under
           Ordinance 24 of the University  (the  Ordinance),  even  if  the
           division does not change?”



3.     The  High  Court  answered  the  question  in  the  affirmative.   We
disagree. Ordinance No.24 of the University does not oblige it  to  issue  a
fresh mark sheet to a student who does not improve his division on taking  a
subsequent examination held for improving the division.
4.    The respondent Shri Gopal Mishra completed  his  two  year  Master  of
Commerce course with an aggregate of 49.54% marks. This placed  him  in  the
second division as per Ordinance No. 24 of the University which  relates  to
the Master of Commerce examination.
5.    The Ordinance is in the nature of a composite scheme for  obtaining  a
degree of Master of Commerce.  It provides, inter alia,  for  improving  the
division obtained by a student based on the aggregate  percentage  of  marks
obtained by him/her by taking  a  repeat  examination  without  attending  a
regular course of study in a college affiliated to the University  or  in  a
teaching department of the University.
6.    The relevant clauses of the Ordinance relating to  the  division  that
may be obtained by a student and the procedure for  improving  the  division
obtained by him or her are given in Clauses 7, 8 and  9  of  the  Ordinance.
These read as follows:-
      “7.   For both the Previous  and  Final   examination  a     candidate
will be declared       successful if he/she  obtains at  least  36%  of  the
aggregate marks in the subject.

                       No division will be assigned on  the  result  of  the
           previous examination. The division in which a candidate is placed
           shall be determined on the basis of aggregate of  marks  obtained
           in both the M. Com Previous and M. Com Final Examination.


           8.     Successful candidates  who  obtain  60%  of  more  of  the
           aggregate marks shall be placed  in  the  First  Division,  those
           obtaining less than 60% but not  less  than  48%  in  the  Second
           Division and all other successful candidates obtaining less  than
           48% in the Third Division.


           9.     Candidates who have passed the M.Com  examination  of  the
           University in Third or Second Division and desire  to  appear  at
           the  M.Com  examination  for  improving  division  may,   without
           attending a regular course of study in a  college  affiliated  to
           the University or in a Teaching Department of the  University  be
           allowed to appear at the aforesaid examination as non  collegiate
           student on the following conditions.


             i) There shall be only two division for such  candidates  i.e.
                First Division and Second Division.  The marks required for
                obtaining these divisions shall be the same  as  prescribed
                in the Ordinance i.e. examinees who are successful in final
                of the examination and have obtained 60%  or  more  of  the
                aggregate of  the  marks  in  Previous  and  Final  of  the
                examinations taken together shall be placed  in  the  First
                Division and examinees who are successful in Final  of  the
                examination and have obtained less than 60%  but  not  less
                than 48% of the aggregate marks in Previous  and  Final  of
                the Examination taken  together  shall  be  placed  in  the
                Second Division.


            ii) The results of the candidates obtaining less  than  48%  of
                the  aggregate  marks  in  Previous  and   Final   of   the
                examination taken together shall not be declared.


           iii) Candidates shall have the option  to  appear  at  both  the
                Previous and Final Examination in one and the same year and
                for being successful at  the  examination,  the  candidates
                shall obtain 48% of the aggregate marks.


                Provided that such candidates who opt to appear in Previous
                and Final Examinations  separately  shall  have  to  obtain
                minimum aggregate required for the Previous examination but
                he will have to obtain at least 48% in the aggregate of the
                Previous and Final examinations taken together or else  his
                result will be cancelled.


            iv) The syllabus for the examinations  shall  be  the  same  as
                prescribed for the year in which the examination is held.


             v) Not more  than  two  attempts  shall  be  allowed  to  such
                candidates.  Failure or non-appearance at  the  examination
                after permission has been accorded by the University, shall
                be counted as an attempt.


                Provided however such candidates who opt to appear  at  the
                Previous and Final examinations separately will be  allowed
                one attempt at the Previous examination and two attempts at
                the Final examination.


            vi) Candidates who wish  to  avail  the  opportunity  given  in
                foregoing para’s will  have  to  apply  for  permission  as
                required in the Ordinance relating  to  Admission  of  non-
                collegiate students to  the  University  examination  along
                with requisite Registration Fees.


           vii) In case a student improves his division under provision  of
                this para, the fresh degree will be issued after cancelling
                his first degree.”


7.    As mentioned above, Mishra obtained 49.54% marks which places  him  in
the second division.  Since he was desirous of  improving  his  division  by
obtaining a first division, he appeared in a repeat examination  as  a  non-
collegiate student in March 2010.    After  he  took  the  examination,  his
result was not declared.  This led him to file a writ petition in  the  High
Court of Chhattisgarh for a declaration of his result and for  the  issuance
of a mark sheet based on the result of  the  repeat  examination.  The  writ
petition was disposed of by a learned Single Judge by an  order  dated  29th
September, 2011 in which it was held, inter alia, that in  the  present  age
of transparency there is no reason to conceal the marks obtained  by  Mishra
in the repeat examination.   Accordingly,  a  direction  was  given  to  the
University to supply the marks obtained by Mishra in the repeat  examination
held in March, 2010.
8.    In compliance with the orders passed by the learned Single  Judge  the
University did intimate to Mishra the marks he had  secured  in  the  repeat
examination, but that was in the form of a letter. No formal mark sheet  was
issued to him.
9.    Mishra was of the view that the University had committed  contempt  of
the orders of the learned Single Judge by not issuing a  fresh  mark  sheet.
Accordingly, he moved  a  contempt  petition  which  was  dismissed  by  the
learned Single Judge on 31st January, 2012 holding that the  University  was
obliged only to intimate the marks obtained by Mishra but  was  not  obliged
to issue a fresh mark sheet.
10.   In view of the above, Mishra filed another writ petition in  the  High
Court, for the issuance of a fresh  mark  sheet.   That  writ  petition  was
withdrawn on 3rd September, 2012 with  liberty  to  take  recourse  to  such
other forum as may be available to him under the provisions of law.
11.    Mishra then filed an application for review of the order  dated  29th
September, 2012 passed in the writ petition.  The  application  came  to  be
disposed of by the learned Single Judge on 16th January, 2013,  inter  alia,
with the following observations:-
      “By this petition, the petitioner seeks  modification  of  the  order
      dated 29.09.2011 to the extent  that  the  respondent  University  be
      directed to issue a fresh/new mark sheet to the  petitioner  for  the
      repeat M.Com (Previous  &  Final)  examination.  This  tantamount  to
      attempt of the petitioner to seek opportunity  to  argue  the  entire
      case  afresh  under  the  garb  of  review  petition,  which  is  not
      permissible and tenable in law.   This  review  petition  is  in  the
      nature of appeal, which cannot be  considered  and  decided  by  this
      Court”.

12.   Thereafter, Mishra preferred an intra-court appeal against  the  order
dated 29th September, 2012 and the order  dated  16th  January,  2013.   The
appeal was disposed of by the Division Bench of the High Court by the  order
under appeal dated 20th February, 2013.
13.   In our view, Ordinance No. 24 prescribes a scheme  which,  inter  alia
enables a student to improve the division obtained by  him  or  her  in  the
Master of Commerce examination.  The Ordinance  does  not  postulate  giving
the student an opportunity  merely  for  improving  the  marks  without  any
improvement in the division obtained.  Were this so,  the  language  of  the
Ordinance would have been explicit and would have clearly spelt out that   a
student could appear in a repeat examination not only for  the  purposes  of
improving the division obtained by him or her but even for the  purposes  of
improving the marks.
14.   Factually, Mishra improved upon the marks  earlier  obtained  by  him.
But he did not improve  his  division  despite  the  improvement  in  marks.
Since Mishra did not improve his division, he was not entitled  to  a  fresh
degree in terms of Clause 9 (vii) of the Ordinance. As mentioned above,  the
Ordinance does not postulate any obligation on the  University  to  issue  a
fresh mark sheet.
15.   Learned Counsel sought to draw support  from  the  conclusion  of  the
High Court that nothing prohibited the University from issuing a fresh  mark
sheet.  While this may  be  so,  there  is  equally  no  obligation  on  the
University to issue a fresh mark sheet, nor does Mishra have  any  right  to
obtain a fresh mark sheet from the University merely because his  marks  had
improved in the repeat examination. The submission of learned  counsel  does
not advance Mishra’s case in any manner.
16.   The High Court concluded  that  the  word  “division”  includes  marks
also.  We are unable to accept this conclusion.  It is quite  clear  from  a
reading of Clause 8 of the Ordinance that there are three divisions  that  a
student can obtain on the basis of the  aggregate  marks:  those   obtaining
more than 60% aggregate marks  are  placed  on  the  first  division;  those
obtaining less than 60% aggregate marks but  not  less  than  48%  aggregate
marks are placed in the second division and all other successful  candidates
obtaining less than 48% marks (and obtaining at least 36%  aggregate  marks)
are placed in the third division.  If the  word  “division”  is  to  include
marks, as held by the High Court, some  of  the  clauses  in  the  Ordinance
would lose their substance and meaning and the entire concept  of  divisions
as against marks would be rendered meaningless.
17.   Learned counsel for Mishra pointed out  that  Clause  9  (ii)  of  the
Ordinance provides that the results of candidates obtaining  less  than  48%
of the aggregate marks  taken  together  shall  not  be  declared.   It  was
submitted on this basis that the results of candidates obtaining  more  than
48% in the aggregate taken together (such as  in  Mishra’s  case)  shall  be
declared. It is difficult to accept the relevance of this  contention  since
it is not in dispute that  Mishra’s  results  were  declared  in  the  first
instance and the marks obtained  by  him  in  the  repeat  examination  were
communicated.
18.   Ordinance No. 24 entitles a student to take a repeat examination  only to improve the division  obtained.   If  there  is  no  improvement  in  the division after  the  repeat  examination,  there  is  no  occasion  for  the University to issue a fresh degree to  that  candidate.    The  question  of issuing a fresh mark sheet, if there is an improvement in  the  marks  after the repeat examination, simply does not arise from the  plain  language  and scheme incorporated in Ordinance No. 24.
19.   Under these circumstances there is no option  but  to  set  aside  the Judgment and Order passed by the High Court and allow this  appeal.   We  do so but with no order as to costs.



                                                             …..……………………..J.
                                            (R.M.Lodha)






                                         ….……………………..J.
    New Delhi;                                         (Madan B. Lokur)
August 16, 2013