Friday, October 27, 2023

No case of negligence if complications unrelated to medical procedure: SC

The court noted that no case of negligence is made out if complications suffered by the patients are not related to the medical process.

The Supreme Court has recently said that to apply the principles of Res Ipsa Loquitur, it is necessary that a 'Res' is present to establish the allegation of medical negligence.

Res Ipsa Loquitur is a Latin word that means "the thing speaks for itself".

A bench of justices AS Bopanna and Prashant Kumar Mishra's remark came while upholding a consumer commission order that did not give relief to a woman.

The court noted that no case of negligence is made out if complications suffered by the patients are not related to the medical process.

"In so far as the applicability of principles of Res Ipsa Loquitur, in the fact and circumstances of the case, it is to bear in mind that the principles get attracted where circumstances strongly suggest partaking in negligent behaviour by the person against whom an accusation of negligence is made. For applying the principles of Res Ipsa Loquitur, it is necessary that a 'Res' is present to establish the allegation of negligence. Strong incriminating circumstantial or documentary evidence is required for application of the doctrine," the court said in its October 17 order.

The court was hearing a woman whose husband died after suffering cardiac arrest. The woman has alleged that the hospital has not taken proper care of her husband from the time he was shifted to the Private room till he suffered a cardiac arrest.

The National Consumer Disputes Redressal Commission on Aug 3 2010 held that the petitioner has not been able to establish by any cogent evidence or material on record that the heart attack suffered by the deceased had any connection with the operation in question or on account of lack of post-operative care.

The woman challenged the Consumer Commission order in the Supreme Court.

The appellant submitted that the deceased died due to cardiac arrest, albeit, admittedly, the deceased had no cardiac problems. The woman's lawyer further submitted that at the time of admission, the deceased was informed that after the surgery he would be shifted to the ICU.

However, he was shifted from the recovery room directly to a private room and not to the ICU, the appellant argued. Refuting the appellant's submission, the lawyer representing the Hospital submitted that the patient had made an excellent recovery after neurosurgery and there were no postoperative complications, therefore, he was shifted to the recovery room and thereafter to a private room.

"It is significant to notice that the patient did not have any history of diabetes or hypertension or any cardiac problem. Therefore, it was difficult for treating doctors including the duty doctor or the hospital to assume that the patient may suffer cardiac arrest moreover, the patient had also not complained of pain in any other part of the body except the neck region," the court noted.

"The case in handstands on a better footing, in as much as there was no mistake in diagnosis or a negligent diagnosis by Respondent no. 2 (doctor). In the absence of the patient having any history of diabetes, hypertension, or cardiac problems, it is difficult to foresee a possible cardiac problem only because the patient had suffered pain in the neck region," the court said.

"For the foregoing, this Court is of the considered view that the appellant has failed to establish negligence on the part of Respondents in taking post-operative care and the findings in this regard recorded by the Commission does not suffer from any illegality or perversity," the court said.

Thursday, October 19, 2023

States/UTs Must Notify 'District Officers' Under Prevention Of Sexual Harassments Act : Supreme Court Issues Slew Of Directions

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The Supreme Court has issued a slew of directions to the Union government, and all State/UT governments to ensure the effective implementation of the provisions of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) read with its Rules.

Significant among them is the mandatory direction issued by the Court that the States and Union Territories must appoint a "District Officer" as per Section 5 of the Act. Though Section 5 says that the appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer, the Court read this as a mandatory condition.

The concerned Principal Secretary of the State/UT Ministry of Women and Child (or any other Department) will personally ensure the appointment of a district officer in each district within their territorial jurisdiction, as contemplated under Section 5 within four weeks from the date of this judgment.

Pursuant to this, each appointed district officer: (a) must in compliance with Section 6(2) appoint nodal officers in every block, taluka and tehsil in the rural or tribal area and ward or municipality in the urban area; (b)must constitute an LC, as contemplated under Section 6 and 7 of the Act; and (c) ensure the contact details of these nodal officers and LCs, shall be forwarded to the nodal person within the State Government Ministry of Women and Child Development within 6 weeks from the date of this judgment.

Due compliance with Section 21(1) and (2), and Section 22, must be undertaken by each District Officer, of the State including collecting the reports from the IC/employers (or information where no report is available), and from the LC, and preparation of a brief report to be shared with the State government.

Wednesday, October 18, 2023

When Notice Is Returned As ‘Unclaimed’, It Must Be Deemed Proper Service; 'Unclaimed' Same As 'Refusal': Supreme Court

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The Supreme Court recently held that when notice is returned as ‘unclaimed’, it shall be deemed to be served on the addressee and considered proper service. The Apex Court also clarified that the word ‘refusal’ can be interpreted as synonymous to the word ‘unclaimed’.

Notice issued to the respondent had returned with the remarks ‘unclaimed’. The Registry in its office report had mentioned that when the notice is returned as ‘refusal’, it constitutes complete/proper service, but when it is returned as ‘unclaimed’, is considered incomplete service.

The Court relied on the decisions in K.Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, (1999) 7 SCC 510 and Ajeet Seeds Limited Vs. K. Gopala Krishnaiah (2014)12 SCC 685 (2014) to observe that when notice is returned as ‘unclaimed’, it must be deemed to be proper service on the addressee.

“…The word ‘refusal’ can be interpreted as synonymous to the word “unclaimed”. As held by the Hon’ble Supreme Court in the above decisions, when a notice is served to the proper address of the addressee, it shall be deemed to be served unless the contrary is proved. Thus, when the notice is returned as unclaimed, it shall be deemed to be served and it is proper service. Therefore, service of notice to the sole respondent which has returned as unclaimed is considered as deemed to be served but none has entered appearance”, the Court held.

When Can Two Establishments Clubbed Together For EPF Act Coverage? Supreme Court Explains

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A Division Bench of the Supreme Court recently determined the legal position pertaining to the clubbing of different institutes for the purpose of coverage under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (EPF Act).

After referring to several decisions with respect to the subject matter, the Court concluded that there is a financial integrity between the two institutes and thus, they can be interconnected and can be clubbed for the purpose of coverage.

the Court highlighted that under the provisions of the EPF Act, if any establishment employs 20 or more persons, the same shall be covered under the provisions of the EPF Act for grant of various benefits thereunder to the employees working there.

Moving forward, the Court also narrowed the issue raised in the present appeal and clarified that the same is not regarding the calculation of dues under the EPF Act, rather it is regarding the coverage of the EPF Act by clubbing of two Institutes.

It thereafter relied upon several precedents that laid down the law regarding the adjudicated issue. These decisions included Associated Cement Co. v. Workmen, AIR 1960 SC 56, wherein it was opined that it is impossible to lay down any one test as absolute and invariable for all cases to determine the issue regarding clubbing of two establishments for the purpose of coverage under the EPF Act. The real purpose is to find out true relations between the two establishments and finally opine thereon. In one case, ‘unity of ownership, management and control’ may be an important test whereas in another ‘functional integrity’ or ‘general unity’ may be important. There can also be a case where the test can be of the ‘unity of employment’.

The Court also placed its reliance upon Noor Niwas Nursery Public School v. Regional Provident Fund Commissioner and others, (2001) 1 SCC 1 wherein it was held that no straight jacket formula or test can be laid down for the purpose of clubbing of the two establishments and coverage under the EPF Act.

After perusing various orders and documents produced on record, the Cout was of the opinion that the appellant had taken the case very casually. At the foremost, the Court observed that after the inspection of the institute, report was submitted by the Enforcement Officer on July 01, 2003, wherein it was stated that the establishment would be covered under the provisions of the EPF Act.

The coverage was confirmed vide order dated August 12, 2003. At this, the Court pointed out that both these orders were not challenged by the appellant. It is only after the order was passed by the Commissioner on September 23, 2005, under Section 7-A of the EPF Act, that the proceedings were initiated.

When the matter travelled to the Tribunal, therein it was recorded that the onus to prove that the employees were less than 20 for exclusion of the applicability of EPF Act before the Commissioner, was on the appellant and the appellant had failed to discharge the same. Thus, it did not interfere with the order of the commissioner.

At the end, the Court opined that the documents produced by the appellant themselves show that it is not an independent establishment but an arm of the Society.

Pertinently, one of the documents was the letter dated 09.12.1987 from the University Grants Commission conveying the Registrar, Gulbarga University, Gulbarga, about the inclusion of the appellant college in the list of the approved colleges under the non-Government colleges, teaching upto Bachelor’s degree. The name of the college was mentioned as ‘The Ideal Fine Arts Society’s College of Visual Art’.

It is in this context, the Court held that “the College is nothing but an extended arm of the Society”, while refusing to accept the appellant’s contentions and dismissing the appeal.

Tuesday, October 17, 2023

Supreme Court rules 5-0 against same-sex marriage, 3-2 against adoption

limitations of the judiciary on entering the domain of law-making to recognise same-sex marriages, the Supreme Court, by recognising non-heterosexual relationships and articulating that they are deserving of equal rights and state protection, has moved the needle on the journey of queer rights.

Tuesday, October 10, 2023

Cheque Dishonour Cases - What Should Courts Ask Accused Once Presumption Under S.139 NI Act Is Applicable? Supreme Court Explains

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Reiterating the principles relating to the presumption under Section 139 of the Negotiable Instruments Act 1881, the Supreme Court reversed the acquittal of an accused in a case for cheque dishonour.

A bench comprising Justices Aravind Kumar and SVN Bhatti observed that there was a "fundamental flaw" in the approach taken by both the Trial Court and the High Court.

Summarising the law relating to the presumption under Section 139 NI Act and the mode of its rebuttal, the Court stated :

"Once the presumption under Section 139 was given effect, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift to the case set up by the accused since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking the aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly".

Two questions that the Courts should ask?

When the Courts have concluded that the signature in the cheque has been admitted and its execution has been proved, then the Courst should inquire into either of the two questions :

1. Has the accused led any defence evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of the cheque?

2. In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the nonexistence of debt/liability by a preponderance of probabilities by referring to the ‘particular circumstances of the case’?

Referring to a catena of precedents, the Court reiterated that as soon as the complainant proves the execution of the cheque, the burden of proof shifts to the accused by virtue of Section 139. "Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further." the Court explained.

The standard of proof to discharge this burden of proof on the accused is not heavy and can be established through the preponderance of probabilities. The accused can either adduce direct evidence or through circumstantial evidence.

Insisting That Donor Egg Cannot Be Used For Gestational Surrogacy Is Prima Facie Against Surrogacy Rules: Supreme Court

The Supreme Court has observed that insisting that only the egg and the sperm of the intending couple can be used for gestational surrogacy is prima facie against Rule 14(a) of the Surrogacy (Regulation) Rules, 2022.

A new amendment introduced in March 2023 to Form 2 read with Rule 7 of the Surrogacy Rules specifies that donor eggs cannot be used for gestational surrogacy of an intending couple.

The Court made this observation while hearing a batch of pleas filed by married women, suffering from a congenital disorder known as Mayer-Rokitansky-Kuster-Hauser (MRKH), who want to achieve biological motherhood through gestational surrogacy. MRKH syndrome causes absolute uterine factor infertility and the only way for a person suffering from such a condition to attain biological motherhood is through gestational surrogacy. This is because the petitioners are not able to produce eggs due to their medical condition.

The petitioners had challenged the amendment dated 14.03.2023 made to Form 2 under Rule 7 of the Surrogacy Rules, which is the form for Consent of the Surrogate Mother and Agreement for Surrogacy.

“Having regard to the challenge made to paragraph 1(d) in Form 2 namely, the substitution as referred to above, we find, prima facie, that this is a case where the said substitution is contrary to what is stipulated in Rule 14(a) of the Surrogacy Rules,” a bench of Justice B V Nagarathna and Justice Ujjal said.

Thursday, October 5, 2023

Hindu marriage can be dissolved through a customary divorce deed if such a customary right is established through existence- SC

The Supreme Court of India recently observed that a Hindu marriage can be dissolved through a customary divorce deed, provided that the party relying on the same should prove that such a customary right exists. The bench also said that a specific pleading regarding the existence of such a customary right should be established through existence before the top Court. This is identified in context with Section 29(2) of the Hindu Marriage Act of 1955 which states that any right recognized by custom or conferred by any special enactment to obtain the dissolution of Hindu marriage will not be affected by the provisions of the Act. 

These observations were made while considering an appeal filed against the Himachal Pradesh High Court’s judgment quashing a wife’s complaint under the Protection of Women from Domestic Violence Act of 2005. While delivering the judgment, the HC relied on the purported customary divorce deed produced by the husband in order to quash a complaint filed by the wife. Aggrieved by the decision of the HC, the wife approached the Supreme Court challenging the HC’s order. During the SC proceedings, the husband claimed that the dissolution of the marriage was conducted through a customary divorce deed. 

The SC bench observed, “The issue whether the parties are governed by the custom under which a divorce can be obtained without resource to Sections 11 and 13 of the 1955 Act, is essentially a question of fact which is required to be specifically pleaded and proved by way of cogent evidence. Such question can ordinarily be adjudicated only by a civil court.” The top Court also highlighted that a mere application filed by the husband cannot allow the Judicial Magistrate to decide the validity of a customary divorce deed. It added that the husband has to lay a proper foundation in pleadings and produce evidence to prove long-time custom. Further, the husband has to establish that their marriage was dissolved by resorting to customary rights.

Moreover, the Supreme Court set aside the HC’s order and remitted the matter back to it for fresh consideration without relying on a customary divorce deed


State Govt Has Power To Impose Permit Fee On Erection Of Mobile Towers : Supreme Court

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The Supreme Court has held that a State Government has the competence to impose permit fees on the erection of mobile towers. The Court rejected the argument that the State cannot realise the permit fee on mobile towers in the absence of a Parliamentary law empowering it to do so.

The Court upheld a judgment of the Chhattisgarh High Court which held that the Chhattisgarh Government had the competence to issue the Circulars as well as the Rules for the purpose of realising one-time permit fee while granting sanction for the erection of a mobile tower in the area under the jurisdiction of the Municipal Corporations/Municipalities/Gram Panchayats. e.

The bench of Justices BV Nagarathna and Ujjal Bhuyan refused to accept the case of Bharat Sanchar Nigam Limited, the appellant, that the subject of permit fee on mobile towers would fall within the scope of Entry 31 of List I of the Seventh schedule of the Indian Constitution which lies exclusively within the domain of the Central Legislature. Entry 31 deals with posts and telegraphs; telephones, wireless, broadcasting, and other like forms of communication.

At first, the Court highlighted judgments wherein it had already delved into the scope and ambit of the Entries in various Lists of Seventh Schedule. These included Ahmedabad Municipal Corporation v. GIL Infrastructure Ltd. (2017) 3 SCC 545.

In this matter, the Court had observed that in the context of a mobile tower located on land and building, incidence of a tax or charge or fee is not on the structure of the mobile tower as such, rather it is on the use of the land and building on which the mobile tower is erected. Therefore, the person who is using the land and building for the purpose of installation of the mobile tower so as to make use of the said structure for the purpose of telecommunication or telegraph services is liable to pay the tax or fee or charge.

Acquittal In Criminal Proceedings Does Not Automatically Result In Discharge In Corresponding Disciplinary Proceedings: Supreme Court

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The Supreme Court ruled that an acquittal in connected criminal proceedings does not entail any benefit in the surviving proceedings and thus does not automatically result in a corresponding discharge in disciplinary proceedings pending against an employee.

A Division Bench of Justice Hrishikesh Roy and Justice Sanjay Karol clarified that the two proceedings operate in different domains and had distinct objectives.

"The nature of proceedings being wholly separate and distinct, acquittal in criminal proceedings does not entitle the delinquent employee for any benefit in the latter or automatic discharge in departmental proceedings."

The Apex Court relying on precedents culled out the following essentialities for the operation of clause 4:

a. At least one year ought to have passed since attempts to get the delinquent employee prosecuted;

b. If, after the passage of such time, no prosecution is initiated, then the department may proceed in accordance with its procedure for disciplinary action;

c. If the prosecution commences later in point of time to the disciplinary proceedings, the latter shall be stayed, but not indefinitely. Such proceedings are to be stayed only for a reasonable period of time, which is a matter of determination per the circumstances of each case.

Furthermore, it was also highlighted that an acquittal in criminal proceedings did not automatically result in a corresponding discharge in disciplinary proceedings.

In this specific case, the disciplinary proceedings against the employee had been initiated well after the one-year period mentioned in clause 4. Additionally, the employee had not raised objections based on clause 4 at the outset, and there was no indication of prejudice caused by simultaneous proceedings.

Consequently, the Court set aside the High Court's judgment and restored the employee's dismissal from service based on the disciplinary proceedings.

Tuesday, October 3, 2023

ED Can't Be Vindictive, Grounds Of Arrest Must Be Furnished In Writing To Accused At The Time Of Arrest : Supreme Court

The Court went to the extent of stating that the ED's conduct "reeks of arbitrariness" and directed the immediate release of both the accused.

In a significant judgment pronounced on Tuesday (October 3), the Supreme Court held that the Directorate of Enforcement (ED) should furnish the grounds of arrest to the accused in writing at the time of arrest.

"We hold that it would be necessary, henceforth, that a copy of written grounds of arrest is furnished to the arrested person as a matter of course and without exception." pronounced a bench comprising Justices AS Bopanna and Sanjay Kumar while setting aside the arrest of Pankaj Bansal and Basant Bansal in the money laundering case against the real estate group M3M.

 The central agency approach was taken in the instant case by which the grounds of arrest were not furnished to the accused in written form. Noticing that the ED officer merely read out the grounds of arrest, the Court held that such conduct would not fulfil the mandate of Article 22(1) of the Constitution and Section 19(1) of the Prevention of Money Laundering Act.

Sunday, October 1, 2023

Medical Negligence & Res Ipsa Loquitur - Where Negligence Is Evident, Burden Of Proof Shifts To Hospital: Supreme Court

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Judgment delivered on September 26, the Supreme Court affirmed the applicability of the principle of res ipsa loquitur in the context of medical negligence cases, emphasizing its applicability in cases where negligence is evident and shifts the burden of proof onto the hospital or medical practitioners. Res ipsa loquitur means "the thing speaks for itself”.

The Court affirmed this principle while awarding Rs 1.5 crore compensation to an ex-Indian Air Force official who contracted HIV during a blood transfusion at a military hospital.

It observed that “the condition in which the appellant found himself, was the direc consequence of the two hospital establishments and their breach of the standards of care, resulting in the transfusion of the HIV-positive infected blood into the appellant, which was the causative factor. The necessary foundational facts, to hold that the application of res ipsa loquitur was warranted, were proved in all detail. The respondents failed to discharge the onus that fell upon them, to establish that due care was in fact exercised and all necessary care standards, applicable at the time, were complied with. As a result, it is held that the respondents are liable to compensate the appellant for the injuries suffered by him.”

The Court held both the Indian Army and the Indian Air Force jointly and severally liable for medical negligence

The bench comprising Justices S Ravindra Bhat and Justice Dipankar Datta was hearing an appeal against a judgment of the National Consumer Disputes Redressal Commission(NCDRC) which denied the compensation claimed by the Air Veteran.

The Court began by citing Charlesworth & Percy on Negligence(14th Ed. 2018) to define this principle as a case that "calls for some answer from the defendant and will arise upon proof of:

(1) the happening of some unexplained occurrence;

(2) which would not have happened in the ordinary course of things without negligence on the part of somebody other than the claimant; and

(3) the circumstances point to the negligence in question being that of the defendant, rather than that of any other person."

The Court referred to several previous judgments, including V. Kishan Rao v Nikhil Super Speciality Hospital (2010) 5 S.C.R. 1 which emphasized that when negligence is evident, "the principle of res ipsa loquitur operates, and the complainant does not have to prove anything as the thing proves itself." In such cases, it becomes the responsibility of the respondent to demonstrate that they have taken due care and fulfilled their duty to refute the charge of negligence.