List of Current Affairs

Source: Supreme Court

Why in News?

The Supreme Court (SC), has confirmed that the relevance of the res ipsa loquitur (Things Speak for Itself) principle in medical negligence cases and stressed upon the fact that when negligence is clear, the burden of proof transfers to the hospital or healthcare professionals.

What is the Background of the CPL Ashish Kumar Chauhan (Retd.) V. Commanding Officer & Ors Case?

• While on duty working in the Indian Air Force (IAF) the appellant complained of weakness, anorexia and other symptoms consequent to which he was admitted to the military hospital facility (171 MH Samba) for treatment and was advised to undergo a blood transfusion and one unit of blood was transfused to him in 2002.
  • The said medical facility did not have a license for a blood bank but has been termed by the Indian Army as an “ad-hoc blood bank”.
• The appellant again fell ill in 2014 and was admitted to Station Medicare Centre, Gandhinagar, Gujarat where he was checked for Human Immunodeficiency Virus (HIV) and his report came as negative.
  • He suffered complications while being admitted in Gandhinagar and was further transferred to medical facilities in Ahmedabad and thereafter Mumbai where it was revealed that the appellant was suffering from HIV.
• The appellant endeavored to trace the source of the virus and realized that the transfusion of virus infected blood at 171 MH Samba in 2002 was the cause of his condition.
• After detection of HIV, first medical board was constituted and as per its findings the infection with HIV was “non-attributable to service”.
• On being dissatisfied with the decision he further demanded copies of the record and found that – The case sheet prepared while he was undergoing treatment shows that though in 2002, one unit of blood was transfused to him, but whether Enzyme Linked Immunosorbent Assay (ELISA) test was conducted before infusing the blood in the appellant’s body was conspicuously absent from that medical case sheet.
• Further, Medical Boards constituted in 2014 and 2015 proceeded to state that the appellant’s disability was attributable to service owing transfusion of one unit of blood at 171 Military Hospital on 10th July 2002. His disability and the disability qualifying elements for the purpose of disability pension were also assessed by the medical board at 30% for two years.
• The appellant was denied extension of services and was discharged from service, without the due proceedings of the Release Medical Board. The appellant wrote a letter to obtain his disability certificate disability and his medical reports.
  • Pension was sanctioned in addition to his service pension, but he was denied the reports as to his blood transfusion.
• Aggrieved by the denial of medical reports as to his blood transfusion, the appellant preferred an RTI application.
• Dissatisfied with the information provided, he appealed to the First Appellate Authority which by its order rejected the appeal and observed that best efforts were made by the respondent authorities to trace the appellant’s medical document.
• Meanwhile, proceedings of the Court of Inquiry (CoI) were held to investigate circumstances under which the appellant was transfused blood at the 171 Military Hospital and the CoI concluded by its findings that blood provided to the appellant was duly screened for the HIV and other markers.
• Thereafter, the appellant filed a complaint before the National Consumer Disputes Redressal Commission seeking compensation plus litigation expenses and suitable pecuniary punishment to the delinquent officers.
• The Commission dismissed the appellant’s complaint, the appellant has hence preferred an appeal before SC.

What were the Court’s Observations?

• The two-judge bench of SC comprising of Justices S Ravindra Bhat and Justice Dipankar Datta relied on following judgements:
  • In favour of the concept of res ipsa loquitor:
    • V. Kishan Rao v. Nikhil Super Speciality Hospital (2010) Case: SC 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.
    • Nizam Institute of Medical Sciences case (2009) Case: SC stated that once the initial burden is discharged by the complainant by demonstrating negligence on the part of the hospital or doctors, the onus shifts to the hospital or attending doctors to prove the absence of negligence.
    • Smt. Savita Garg v. The Director, National Heart Institute (2004) Case: SC established that when evidence is presented suggesting that a patient suffered as a result of inadequate care, the hospital is then tasked with justifying the absence of negligence.
• Against relying solely on res ipsa loquitur:
  • Bombay Hospital and Medical Research Centre v. Asha Jaiswal (2021), SC observed that “maxim res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defendant. It only, when applied appropriately, allows the drawing of a permissive inference of fact, as distinguished from a mandatory presumption properly so-called, having regard to the totality of the circumstances and probabilities of the case. Res Ipsa is only a means of estimating logical probability from the circumstances of the accident.”
• The SC in light of above pronouncements affirmed the 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.

What is the Principle of Res Ipsa Loquitor?

• This maxim has a Latin origin, and it is believed that this phrase was used first by Cicero in his defense speech Pro Milone.
• It translates to things speak for itself; it suggests that the mere occurrence of the event implies negligence on the part of the defendant.
• It is a doctrine in tort law that allows for an inference or assumption that a defendant was negligent in an accident causing harm to the plaintiff, based on circumstantial evidence, if the accident is the type that typically doesn't happen without negligence.
• In an English case Morgan v. Sim, (1857), Lord Wensleydale observed that the party aiming to obtain compensation for damages must demonstrate that the party they are accusing was at fault. The burden of proof is on them, and they must establish that the loss can be attributed to the negligence of the opposing party.

What is Medical Negligence?

• About:
  • Medical negligence pertains to professional misconduct by a healthcare provider who does not adhere to the expected standards of their profession leading to loss suffered by the seeking medical intervention.
    • The loss suffered can be financial consequences, adverse health effects, worsening the patient's condition, inflicting emotional trauma, and leaving the patient in a permanent and irreparable state for the remainder of their life.
• Essentials to prove Medical Negligence:
  • Duty of Care: It must be established that a healthcare provider owed a duty of care to the patient. This duty of care arises when a doctor-patient relationship exists.
  • Breach of Duty: It must be shown that the healthcare provider breached the duty of care owed to the patient. This breach typically involves failing to meet the accepted standard of care that other competent medical professionals would have provided in similar circumstances.
  • Injury: It is necessary to demonstrate that a doctor had a responsibility to provide care to the patient and that the doctor's failure to fulfill this duty resulted in injury or death to the patient.
• Landmark Cases:
  • Bolam v. Friern Hospital Management Committee (1957): In this English case This case established the principle that a medical professional is not necessarily negligent if their actions align with the practice accepted by a responsible body of medical opinion within their field, even if other experts may disagree.
  • Bolitho v. City and Hackney Health Authority (1996): In this case, the House of Lords held that it is not sufficient for a medical professional to rely solely on established medical practice as a defense against negligence claims. Instead, the professional must also demonstrate that the practice has a logical and defensible basis, known as the "Bolitho test."
  • Kusum Sharma & Ors v. Batra Hospital & Medical Research (2010): In this case, SC defined negligence as “Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”.

Source: Allahabad High Court

Why in News?

Justice Neeraj Tiwari observed that after the conviction of an employee, while passing the removal or dismissal order, there must have been consideration of the conduct of the employee.

• Allahabad High Court gave this observation in the case of Vishwanath Vishwakarma v. State of UP Through Prin. Secy. Dept. of Revenue Lko. And Ors.

What is the Background of Vishwanath Vishwakarma v. State of UP And Ors Case?

• The petitioner worked as a Lekhpal in District Sultanpur, UP.
• He was charged under several sections of the Indian Penal Code, 1860 where he was convicted for murder and unlawful assembly.
• Pursuant to the conviction, he was dismissed from his service in 2014 just a day before his superannuation.
• The petitioner filed a departmental appeal where it was  held that he will only be entitled to General Provident Fund (GPF) and all other dues will be decided by the HC.
• The petitioner then challenged this order on the grounds of Article 311(2) of Constitution of India, 1950 stating that conviction cannot be only ground for dismissal of services.

What were the Court’s Observations?

• Allahabad HC observed that the authority had not applied its mind a gave a mechanical order of dismissing the petitioner merely on the basis of his conviction hence the order related to dismissal and post-retirement dues were set aside.

What is Article 311(2)?

• About:
  • Article 311(2) reads: "No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."
• Meaning:
  • This means that a person who is employed in a civil capacity under the Union or a State government cannot be dismissed, removed, or reduced in rank without being given a reasonable opportunity to defend themselves against the proposed action.
• Reasonable Opportunity:
  • The phrase "reasonable opportunity" is crucial, as it implies that the opportunity given to the government servant must be fair, adequate, and in accordance with the principles of natural justice.
• Exceptions:
  • Article 311(2) carves out certain exceptions to the general rule.
  • Where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.
  • This clause shall not apply on the following:
    • (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
    • (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
    • (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.

What are the Landmark Judgments?

• Union of India and another v. Tulsiram Patel (1985):
  • The Supreme Court in this case held that before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned government servant is such as justifies the penalty of dismissal, removal or reduction in rank.
• Shyam Narain Shukla v. State of UP (1988):
  • The Allahabad HC held that whenever a Government servant is convicted of an offence, he cannot be dismissed from service merely on the ground of conviction, but the appropriate authority has to consider the conduct of such employee leading to his conviction and then to decide what punishment is to be inflicted upon him.

Source: Allahabad High Court

Why in News?

Justice Alok Mathur observed that any dispute between an employer and employees of a cooperative society of UP does not fall under the UP Industrial Disputes Act, 1947 but the UP Cooperative Societies Act, 1965.

• Allahabad High Court gave this observation in the case of UP Cooperative Federation Limited through its Managing Director and Another v. Presiding Officer, Industrial Tribunal & Ors.

What is the Background of UP Cooperative Federation Limited v. Presiding Officer, Industrial Tribunal & Ors Case?

• The employee (respondent), initially served on an ad hoc basis for a period of 89 days.
• Subsequently, his employment tenure was consistently extended until 1984, at which point it was terminated.
• The respondent was dissatisfied with this termination and took the matter to the Conciliation Officer, who, in turn, referred it to the UP Industrial Tribunal.
• The UP Cooperative Federation Limited raised a preliminary objection before the Tribunal, questioning the validity of the reference.
• The Tribunal rejected the maintainability ground and dismissed the termination of employee.
• The appeal was then filed before the Allahabad HC which delved into the maintenance of reference to Industrial Tribunal.
• The reference to Industrial Tribunal through application of Section 70 of the UP Cooperative Societies Act, 1965 was also in question.

What were the Court’s Observations?

• Allahabad HC observed that Section 70 of the UP Cooperative Societies Act, 1965 eliminates the application of UP Industrial Disputes Act, 1947 from any disputes between the employer and employee of a cooperative society.

What is the U.P. Cooperative Societies Act, 1965?

• About:
  • The UP Cooperative Societies Act, 1965 governs the functioning and operations of cooperative societies in the state of Uttar Pradesh, India.
  • The Act provides the legal foundation for the establishment, registration, and management of various types of cooperative societies in UP.
• Legal Framework:
  • The Act received the assent of the President on 24th March 1966 and published in UP Gazette, dated 5th April 1966.
  • The Act has 135 Sections segregated into XV Chapters.
• Section 70 of the Act:
  • It covers the disputes which may be referred to arbitration.
  • The disputes under Section 70 are any dispute relating to the constitution, management or the business of a cooperative society other than a dispute regarding disciplinary action taken against a paid servant of a society.
  • The following shall be deemed to be included in disputes relating to the constitution, management or the business of a co-operative society, namely
    • (a) claims for amounts due when a demand for payment is made and is either refused or not complied with whether such claims are admitted or not by the opposite party;
    • (b) a claim by a society against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not;
    • (c) a claim by a society for any loss caused to it by a member, officer, agent, or employee including past or deceased member, officer, agent or employee, whether individually or collectively and whether such loss be admitted or not; and
    • (d) all matters relating to the objects of the society mentioned in the byelaws as also those relating to the election of office-bearers.