THE SUPREME COURT OPINION IN BATRA HOSPITAL’S – CASE*

Basic Facts:- This was a case where Kusum Sharma ( Complainant) W/o one Late R.K. Sharma a Senior Operation Manager with Indian Oil Corporation filed a complaint for medical negligence against Batra Hospital. The patient developed high blood pressure in the year 1989; was obese and complained of swelling and breathlessness who was referred to Batra Hospital at the behest of Indian Oil Corporation, the employer. Amongst various tests Ultrasound and C.T. Scan it was diagnosed that there was a smooth surface of mass in the left adrenal and that surgery was imperative. The tumor concerned was also found to be malignant ;however surgery was duly performed. As alleged during the surgery the body of the pancreas was damaged and which was treated and drain was fixed to drain out the fluids. Unfortunately the patient died on account of “pylogenic meningitis” the contention of the complainant obviously being pancreatic abscess was evident as a result of pancreatic injury during the surgery. Complaint Dismissed:- The National Commission did not find any merit in the allegations of the patient and dismissed the same primarily for want of adequate evidence. On the contrary on the basis of medical literature and evidence of eminent doctors of AIMS it was confirmed that the treating doctors had not committed any negligence. It was also found that all the standard medical protocol was duly followed and that in the circumstances no malafides can be attributed against the hospital. The court referred to in details the case sheet; medical literature; and the discharge summary. ( Thus the audience of this article may take a note that it is important for the treating doctors and hospitals to maintain proper and complete records of treatment administered on the patient and which is an important tool of defense) Legal principles reiterated:- That the law of medical negligence has yet again been dealt quite exhaustively by the Hon’ble Supreme Court of India in this case ; both international as well as Indian; and on scrutiny of the leading cases of medical negligence both in our country and other countries especially the United Kingdom the Apex Court has reiterated that the courts are to keep in mind while deciding the cases of medical negligence ; the following principles:- ( Which would be an useful guide to readers of this article both on the civil liability and criminal liability of medical negligence) “ 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. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his / her suffering which did not yield the desired result may not amount to negligence. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a took for pressurizing the medical professionals / hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.” * 2010(3) SCC 480

Pt. Nehru's Resolution on August 14,1946- A Great Motivator

Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom. A moment comes, which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance. It is fitting that at this solemn moment we take the pledge of dedication to the service of India and her people and to the still larger cause of humanity. At the dawn of history India started on her unending quest, and trackless centuries are filled with her striving and the grandeur of her successes and, her. failures. Through good and ill fortune alike she has never lost sight of that quest or forgotten the ideals which gave her strength. We end today a period of ill fortune and India discovers herself again. The achievement we celebrate today is but a step, an opening of opportunity, to the greater trumphs and achievements that await us. Are we brave enough and wise enough to grasp this opportunity and accept the challenge of the future? Freedom and power bring responsibility. That responsibility rests upon this' Assembly, a sovereign body representing the sovereign people of India. Before the birth of freedom we have endured all the pains of labour and our hearts are heavy with the memory of this sorrow. Some of those pains continue even now. Nevertheless the past is over and it is the future that beckons to us now. That future is not one of ease or resting but of incessant striving so that we might fulfil the pledges we have so oft-en taken and the one we shall take today. The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to, wipe every tear from every eye. That may be beyond us but as long as there are tears and suffering, so long our work will not be over

Aam Admi Party

Mr. Arvind Kejriwal has announced his Aam Admi Party on 23-12-2012. He talks of "Revolutionary Changes in the Country's Polictical System" he feels "There are people who have looted India a Lot" . Well ! being Proactive is good but one does not have to be Cynical. Every body is fed up of the rot in the political/public life scenario but I suppose Mr Kejriwal should concentrate more on his Agenda for changes for the good in the Country's public life ; Corruption free society and Good governance rather than just regular dramatic criticisms. Democracy gives right to the people to speak ; but speak sensibly. Reckless attacks would help one achieve nothing. I feel acting with grace will give more weight to his movement rather than yelling his points of.

LUCKNOW AIRPORT GOOF-UP UNPARDONABLE

Accident averted ? Recent incidents at the Lucknow Airport deserve severe condemnation. This kind of reckless ness is just not to be allowed. The Times of India, today ( Lucknow edition ) reports: "As per reports, the Indigo flight (6E-342) from Mumbai was about to land at Amausi airport at around 4.30 pm when it pilot spotted a descending chopper. It was a UP government chopper (VT-UPL), reportedly carrying four state government officials, including a senior bureaucrat, who were arriving from New Delhi. According to data collected from the voice recorder of the chopper, the pilot did spot the arriving aircraft from the opposite direction. Airport sources said that the chopper was therefore asked to fly and align itself in a way that it landed behind the aircraft. But by then the aircraft pilot had apprehended the chopper to be too close and decided to abort the landing" "Earlier this year, an aircraft carrying senior Congress leaders, Jairam Ramesh and Pramod Tewari, reportedly had a close shave with another aircraft of Saudi Airlines at Amausi Airport. The chartered aircraft with top Congress leaders took a sudden elevation, even as it came close to a waiting aircraft of Saudi Airlines which was about to take off." Enquiry has been ordered but it should follow with an Action Taken Report then only the outcome of enquiry can be fructified.

BHAIYA DWIJ

Bhaiya Duj a ritual fervently celebrated particularly in Uttar Pradesh. The celebration is all about the love and affection between a Brother and a Sister; Material Distance between the own lives of the Brother and Sister must not result in creating an emotional and mental distance between the siblings. The occasion denotes the meeting of the brother and sister each year where their affection for each other is refreshed. The brother always is reminded to take care of their sister/s and simultaneously the sister too has a role to remind and renew in the mind of the brother about his various obligations towards his entire family.

OIL IN INDIA

Recently on a flight I met a young boy. He is working for a Corporation. A highly talented boy who keeps himself abreast with all current affairs. His main job being of an Engineer in an oil company thus he had special interest in oil explorations. The main area of his concern was; as as a young citizen the oil policy of our country. Reliance would not sell their petrol here on subsidy, thus all their petrol pumps shutdown but they want to explore oil and sell abroad. An oil field discovered in India in the desert is now auctioned to a private company through an open bid in the year 2008 who would take out oil and obviously also sell out side India. Whereas in our Country we are importing about 74% of our fuel requirements. There is really no research in our country as compared to other parts of the globe even though we offer solutions. The young boy s concern for a proper oil policy does deserve our attention.

Public Accountability

Arvind Kejriwal is in the news over last few weeks for his fight against corruption. There is a view point that he is over active and may be exceeding his limits even by falsely implicating people. Under his attack in the recent past have been Mr Robert Wadra, Mr.Salman Kurshid and now Mr.Nitin Gadgari. Well toady's TOI reports that even the Income Tax department can smell a rat in the affairs of Gadkari s Companies, some of which are suspected fictitious with Drivers and such like people being its directors. In such a situation the drive against corruption and to make these so called Public figures and National leaders accountable to public cannot be discarded by us. Kejriwal should therefore get his due credit.

Free Education for Children

In the Case of Environment & Consumer Protection Foundation Versus Delhi Administration & Ors. decided on 3-10-2012 the Hon'ble Supreme court directed as under: ( As reported by Supreme Law a wonderful law site containing latest decisions of Supreme court of India) Constitution of India, 1950 - Article 21A - Right of Children to Free and Compulsory Education Act, 2009 - Section 31 - Monitoring of child’s right to education - Direction to all the States to provide toilet facilities for boys and girls, drinking water facilities, sufficient class rooms, appointment of teaching and non-teaching staff etc., if not already provided, within six months from today. These directions are applicable to all the schools, whether State owned or privately owned, aided or unaided, minority or non-minority. Directions in the case of Society for Unaided Private Schools of Rajasthan v. Union of India and Another (2012)6 SCC 1 reiterated.

A TRIBUTE TO SHRI R.N. TRIVEDI SR. ADVOCATE

My Senior Shri RN Trivedi, Sr Advocate ; practising at the Supreme Court of India ; Former Advocate general of Uttar Pradesh and Former additional Solicitor general of India ; at whose feet I learned my first lessons in Legal Practise Sadly Passed Away yester day. May his Soul RIP.

Using vocational service to build peace By Rotary International President Tanaka

By Sakuji Tanaka, in English and Japanese In Japan, we place great importance on the value of work. Whatever we are called to do, we should do it to the very best of our abilities, with dignity and with pride. Whether the job is running a country or shining shoes, there is honor in every vocation. I grew up embracing this belief, but I had never stopped to contemplate it. One day, in my third year in Rotary, we had a speaker at our club who talked about the purpose of one’s livelihood. He asked, why do we work hard? What is the importance of our work? I had never thought about this before. I never saw it as a question. We work to earn money. We work to be successful. We work because it is required of us. To me, this was all. On that day, I learned about the idea of vocational service. It was the idea that through our work, we can serve others. We think about others’ needs, and grow to care more for the needs of our communities. We build positive connections between people, and a more peaceful world. This is the idea that has changed my life. It did not change how much I worked, or how hard I worked. But it changed why I worked, and how I experienced my life. It has made me see a higher purpose in everything I do. The idea of Service above Self is an idea that is unique to Rotary. But it is an idea that can be embraced by anyone. And I believe very much that in Rotary, and beyond Rotary, we can build Peace through Service.

TALK DELIVERED ON “SAVE YOURSELF FROM MEDICO LEGAL COMPLICATIONS” AT KGMU IN LUCKNOW OBSTRECTICS & GYNAECOLOGY SOCIETY ON 16-10-2011

Hello every body; It was a pleasure to hear the medical experts on the intricate medical subject of PPH for last few minutes. I think now we need a mood change and for some time switch to legal issues for which I am here before you this evening. The journey of medical negligence cases in Consumer Courts started with the judgment of Indian Medical Association versus V.P. shantha of the Hon’ble supreme Court of India in the year 1996 when it held that the medical professionals ; hospitals ; nursing homes were all covered under the definition of “rendering service” under the Consumer Protection Act, 1986 and hence would be amenable to the jurisdiction of Consumer Courts. Thus started a big spate of medical negligence litigation in this country. Law has developed a great deal on the subject of “Medical Negligence” since then; any amount of time to discuss it all would be less. Briefly stated all that the law expects from a doctor is to exercise their ”duty of reasonable care and skill”. The word “reasonable” in itself speaks volumes that if a doctor has done what a reasonable and prudent person would have done in diagnosing and administrating treatment on the patient then irrespective of the outcome of such a treatment no finding of medical negligence can be recorded against a doctor by any court. Today I am supposed to tell you about some tips by which you can save guard yourself against legal cases. Well the list can be unending yet however I am going to emphasize on some very important tips. Judicial trend shows that the courts give due weightage to proper records. Be it the doctor’s prescription ; the case sheet or the operative notes. Hence much attention must be paid to proper documentation; recording of complete diagnosis of the patient ; the history ; the tests prescribed and the treatment administered. The hospital records are primary evidence of proper procedure duly followed in treatment of the patient. Non production of hospital records in the court may draw an adverse presumption against the hospital in the court proceedings. I recently handled a case in which a district consumer forum awarded compensation against the hospital for incomplete records i.e. it was a case where a lady patient who came for pregnancy was tested “positive for HIV” and even though she was advised retest by the hospital “all verbally” the records were silent. The complainant built up a case that she was harassed due to positive HIV report and which caused her mental anguish and the hospital never informed her of retest. Believing the case of the patient the consumer court awarded compensation in her favour. One single endorsement or “written advise” for “retest” could save the hospital of unnecessary litigation. The hospital has filed an appeal in the U.P. State Commission. In yet another case the hospital records could not come to the rescue of the doctor due to very cryptic operative notes. I have come across so many “operative notes” which are so elaborate in themselves that the courts take it as a complete defense of the doctor in so far as the methodology of treatment or as the “standard medical protocol” of treatment. Omission to draw a proper prescription at the time of the first visit of the patient to a doctor insofar as the diagnosis is concerned; or the tests advised ; treatment prescribed ; always leads a medical practitioner in to legal trouble. It should be always remembered that even though the prescription drawn by you remains with the patient ; yet however to establish a case against a doctor in the consumer court the patient will always file/rely on your initial prescription to establish a doctor patient relationship in the court. Thus if a doctor’s prescription is complete in itself it will become quite difficult for the complainant to prove you guilty of medical negligence. I recently also came across a case where the initial legal notice sent by the patient was ignored by the hospital/doctor. Result was that subsequently the patient filed a court case and somehow the notices remain unserved to the hospital by the court for a long duration. The hospital thus had no clue of this case and they did not preserve the hospital records of the patient. On a later date the court served the notice, naturally the hospital/doctor was clue less about the details of treatment administered on the patient; putting them under great stress. Thus proper and timely response to the initial legal notice would not only have helped the hospital to set up an effective defense to the case but also ensured preservation of the most important and vital hospital records. I am sure these “few” but “very important” points/tips will help you safe guard yourself from legal troubles. I have always welcomed effective interaction between the audience and the speaker and hence now I request you all to pose specific questions. Thank you!!!

Justice Hans Raj Khanna ( Former Supreme Court of India judge)

After he tendered his resignation on 12-3-1978 Said:- Flashed through my mind… There arose a feeling of some satisfaction for having not swerved or faltered at the crucial time from what I believed was the correct course. The fact that it resulted in foregoing and losing the office of Chief Justice of India did not hurt very much for such consequence was expected from the moment I prepared my judgement in the habeas corpus case and also because many others have paid much greater price for following the voice of their conscience. Undoubtedly those moments were not without a tinge of sadness, which invariably is there at the time of parting whether from a career of life or from a dear one. It also happen that in such moments of crisis , in moments when the curtain is falling on a major part of one’s life, if one has the consciousness of having done what one believed to be the right thing, one gets sustenance and support from the inner and hitherto unknown reserves of strength.

INDIA: HISTORY OF ITS NAME

The name of India is derivation from the word Sindhu. Neighbouring Arabs, Iranians uttered‘s’ as ‘h’ and called this land Hindu. Greeks pronounced this name as Indus. Sindhu is the name of the Indus River, mentioned in the Rig-Veda, one of the oldest extant Indo-European texts, composed in the northwestern region of the Indian subcontinent roughly between 1700-1100 BC. There are strong linguistic and cultural similarities with the Iranian Avesta, often associated with the early culture of 2200-1600 BC. The English term is from Greek Ἰνδία (Indía), via Latin India. Iindía in Byzantine ethnography denotes the region beyond the Indus (Ἰνδός) River, since Herodotus alluded to "Indian land". Ἰνδός, Indos, "an Indian", from Avestan Hinduš refers to Sindh and is listed as a conquered territory by Persian Emperor Darius I (550-486 BC) in the Persepolis terrace inscription. The name India was known in Old English (between at least the mid-5th century and the mid-12th century AD) and was used in King Alfred's translation of Orosius. The name was, under French influence, replaced by Ynde or Inde. It went into Early Modern English (the latter half of the 15th century to 1650 AD). Thus, Indie appeared the first edition of the King James Bible and the works of William Shakespeare - both belong to the late phase of Early Modern English. The name India then came back to English usage from the 17th century onwards, may be due to the influence of Latin, or Spanish or Portuguese.

ALTERNATIVE DISPUTE RESOLUTION - LECTURE DT: 30-8-2012

Another lecture today to joint batch of Sr Civil judges and Addl Dist Judges of UP on Arbitration and Mediation for quick and expeditious disposal of cases with least technicalities and for "substantial justice". We need to save the faith in Judiciary of the people as quickly as possible.!!!!

CASE OF MARGESH K. PARIKH (MINOR) Vs. DR. MAYUR S. MEHTA ( As published in UP Nursing Home quarterly News letter) By Manish Mehrotra, Advocate.

The above decision of the Hon’ble Supreme Court on Medical Negligence reported in (2011) 1 SCC 31; is an important case on which the present article is based. It is a case where the patient ( a minor) was admitted in the hospital with complaint of loose motions. After some laboratory tests the doctor put him on medication and injected Glucose Saline through his right shoulder. This did not improve the condition of the minor child and who started vomiting and having loose motions more frequently. In the evening the parents of the minor patient noticed swelling in the toe of his left foot which was turning black and accordingly child was sent to one Dr. “C” who carried a small procedure and administered certain medicine. Unfortunately later the child developed gangrene and ultimately his left leg was amputated below knee. The patient’s guardian filed a case of compensation for Rs. 10 Lac. The State Consumer Commission did not accept the plea of the doctor and awarded a compensation of Rs. 5 Lacs against the doctors with interest thereupon. However, during the case proceedings the State Consumer Commission noticed that the doctor had withheld the medical records / case papers for six long years and also did not file any affidavit before it of the treating doctor. The National Consumer Commission on appeal by the treating doctors set aside the order of the State Commission holding the doctor not guilty of medical negligence. However, keeping in view the detailed findings of the State Commission the Hon’ble Supreme Court allowed the patient’s appeal and set aside the decision of the National Consumer Commission while remanding it back and held as under:- i) The conduct of the doctors in not producing case sheet within time and deferring it for six long years could not be ignored by the National Consumer Commission and has been pleased to observe that the National Commission was duty bound to pay serious attention on the doctor’s failure to produce the case papers for six long years and call upon him to explain why the record pertaining to the treatment given to the appellant was held back for so long. ii) The case papers / bed tickets maintained by the hospital would have disclosed the line of treatment. iii) Equally intriguing was the hospital’s failure to file the Affidavit of the treating doctor and such types of lacuna can not be ignored by the courts. iv) These omissions on the part of National Commission are extremely serious and have resulted in failure of justice (Refer paragraph – 13 of the judgement). In view of the above important decision of the Hon’ble Supreme Court; as I have always emphasised during my talks in the UPNHA conferences that transparent hospital records must be maintained by the hospital / doctors and should be produced in court at the first available opportunity to give a clear picture of the details on diagnosis and treatment administered to the patient.

Alternative Dispute Resolution – Arbitration, Mediation, Conciliation (Concept; Purpose and Application) ( As Speaker at Refresher Training Programme for Additional District Judges in Institute of Judicial Training, Lucknow. U.P. on 20-7-2012)

************* CONCEPT: In 1927 an English Judge Justice Marten of Bombay High Court said “It (arbitration) is indeed a striking feature of ordinary Indian life. And I would go further and say that it prevails in all ranks of life to a much greater extent than is the case in England. To refer matters to a Panch is one of the natural ways of deciding many a dispute in India”. Corpus Juris Secundum ( Volume VI) defines an arbitration as under:- “ The settlement of controversies by arbitration is a legally favoured contractual proceeding of common law origin by which the parties by consent submit the matter for determination to a tribunal of their own choosing on substitution for the tribunals provided by the ordinary process of the law” CODIFIED LAW IN INDIAN CONTEXT FOR ALTERNATIVE DISPUTE RESOLUTION: The history of codified law on Arbitration is India is Indian Arbitration Act, 1899; Indian Arbitration Act, 1940 and now Arbitration and Conciliation Act, 1996 each enacted keeping in view the development of law in the sphere and keeping in pace with the requirements in law with changing times. PURPOSE OF LAW Arbitration and Conciliation Act, 1996 is an Act to consolidate and amend the law, relating to domestic Arbitration and International Commercial Arbitration. Untied Nations Commission on International Trade Law (UNICITRAL) adopted the UNICITRAL Model law on International Commercial Arbitrations in 1985; thereafter the General Assembly of the United Nations had recommended that all countries give DUE CONSIDERATION TO THE SAID Model Law, in view of desirability of uniformity of law of arbitral procedures and the specific needs of international commercial arbitration practice. Keeping in view the international norms our Parliament enacted the Arbitration and Conciliation Act, 1996. The scope of the topic will be incomprehensive if we do not notice the statement and objects of the legislature which is the bedrock of the New Arbitration law in India. Quote : 1) To comprehensively cover international and commercial arbitration and conciliation as also domestic arbitration and conciliation; 2) To make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration. 3) To provide that the arbitral tribunal gives reasons for its arbitral award; 4) To ensure that the arbitral tribunal remains within the limits of its jurisdiction; 5) To minimize the supervisory role of Courts in the arbitral process; 6) To permit an arbitral tribunal to use mediation, conciliation or other procedures during the arbitral proceedings to encourage settlement of disputes; 7) To provide that every final arbitral award is enforced in the same manner as if it were a decree of the Court; 8) To provide that a settlement agreement reached by the parties as a result of conciliation proceedings will have the same status and effect as an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral Tribunal; and 9) To provide that, for purposes of enforcement of foreign awards, every arbitral award made in a country to which one of the two international Conversations relating to foreign arbitral awards to which India is a party applies, will be treated as a foreign award. If we cull out the settled law from various Judicial pronouncements it would be clear that settlement of disputes between the parties has a tradition in this country as I had pointed out in the beginning of this article. We cannot deny the overburden of litigation in courts. It is also true that the Judicial System prevalent in courts is governed by procedures prescribed by various enactments and several of which are technical and obstruct the adjudication resulting in delays. We have to appreciate that the litigant of today is often frustrated and exhausted due to delays. All his enthusiasm of his rights enforcement dies with time and soon comes a time when he just wants the decision irrespective of its outcome; this I have clearly observed as a lawyer in last two decades of my practice. Therefore I feel that the purpose of alternative mechanism for resolution of disputes has been evolved for resolution of disputes through the process of Arbitration; Conciliation and Mediation to ensure fair and efficient, speedy trial giving finality to the decision. Russel on Arbitration is one of the Classic legal reference works. Courts and Practitioners and all those involved in arbitrations use this as one of the most powerful reference tool. Russel on Arbitration (23rd Edition) states as under:- Arbitration Features:- • Party Autonomy is recognized as paramount and court intervention is expressly excluded except as specified in the Act; • A general duty is imposed on the arbitral tribunal to act fairly and impartially and to adopt procedures that avoid unnecessary delays or expense. • The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense. • The parties should be free to agree how their disputes are resolved subject only to such safeguards as are necessary in public interest; and • Intervention by courts should be restricted. APPLICATION OF LAW Looking to the significance and necessity of Alternative Disputes Redressal ; the Civil Procedure Code (by Amending Act, 1999) carried out an amendment and inserted Section 89 of the Civil procedure Code; which reads as under:- Quote: S. 89. Settlement of disputes outside the Court – (1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for – (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation. (2) Where a dispute has been referred – (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration of conciliation were referred for settlement under the provisions of that Act; (b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of Section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in resp9ect of the dispute to referred to the Lok Adalat; (c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. A bare perusal of Section 89 of CPC demonstrates that in all Civil litigations the courts have to encourage settlement of disputes outside the court. While discussing about the philosophy behind Section 89 of CPC; reference to Justice Malimath Committee report is a must “If a law is enacted giving legal sanction to such machinery for resolution of disputes and resort thereto is made compulsory, much of the inflow of commercial litigation in regular civil courts gradually moving up hierarchically would be controlled and reduced.” The Malimath Committee while elaborating the importance of conciliation also suggested “the senior members of the bar, amongst others are invited for personal discussions by the District Judge; Additional District Judges …….. with a view to impressing upon them ……..their willing participation in settlement…..which will result in saving time and sparing them of the trouble of calling witnesses, subjecting them to long drawn examination, cross examination and arguments.” ARBITRATION ACT, 1996 ( relevant provisions) Some of the provisions of the Arbitration Act, 1996 need a mention which would throw light on the application of law qua the courts and how they are to give effect to the philosophy of the Act. Section 5 of the Arbitration and Conciliation Act, 1996 (herein after referred to as Act) provides that “Notwithstanding anything contained in any other law for the time being in force, in matters governed by this part, no judicial authority shall intervene except where so provided in this part”. The mandate of Section 5 was considered by the Hon’ble Supreme Court of India in the case of P. Anand Gajapathi Raju Vs. P.V.G. Raju AIR 2000 SC 1886 where in the Hon’ble Court held:- “Section 5 brings out clearly the object of the New Act, namely, that of encouraging resolution of disputes expeditiously and less expensively and when there is an arbitration agreement, the courts intervention should be minimal.” Section 8 of the Act mandates that: A Judicial Authority before which an action is brought in a matter which is the subject matter of an arbitration agreement shall, if the party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. The Hon’ble Supreme Court while interpreting the provision of Section 8 in the case of P. Anand Gajapati Raju (supra) held “The language of Section 8 is preemptory. It is, therefore, obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement”. The next section dealing with courts jurisdiction is Section 9 of the Act, which provides:- A party may, before or during arbitral proceedings or at any time after making of the arbitral award but before it is enforced may apply to a court for interim measure of protection in respect of the preservation, interim custody or sale of any goods which are subject matter of arbitration agreement; securing the amount in disputes in the arbitration and so on and so forth. The decision of the Hon’ble Supreme Court of India in the Case of Sundaram Finance Ltd Versus NEPC India Ltd 1999 (2) SCC 479 is the lead case law giving all principles for application of Section 9 by the courts. In this case the Hon’ble Supreme Court also held that when an application under Section 9 is filed by a party, there has to be a manifest intention on part of the applicant to take recourse to the arbitral proceedings. Then finally post award stage in court is contained in Section 34 of the Act, when a party has recourse to a court against an arbitral award on the very limited grounds as provided for. The scope of the post award challenge is not the subject matter of this seminar ; suffice to say that there are catena of judicial decisions which define the limited grounds of interference in an arbitral award by the Courts primarily because it is a decision of the choice of forum of the parties and that an arbitral award should normally assume finality subject to the basic tenet of compliance of principles of natural justice by the Arbitral tribunal. All of which is in consonance behind the basic principle of an Alternative dispute Resolution its concept and its purpose.

(Lecture delivered at Judicial Training Institute, Lucknow to Presidents & members of consumer Forum U.P. on 26-7-2011)

Medical Negligence – Dimensions in Law* By Manish Mehrotra* (Advocate) High Court,Lucknow Consumer Protection Act, 1986 a beneficial piece of legislation came in India to sub-serve the interest of a consumer; both of goods and services. The statement and objects of the Act being to provide for better protection of the interests of Consumers. Section 2; i.e. the “definition clause” defines a “Complainant” “Consumer” and so on and so forth. Section 2 (1)(O) also defines “Service” in which interalia are included the provision / facilities in connection with banking, finance insurance, entertainment, etc. but it states that it does not include the rendering of any service “free of charge” or under a “contract of personal service”. In the year 1996, in the case of India Medical Association Vs., V.P. Shanta 1995 (6) SCC 651, the question which arose before Hon’ble Supreme Court of India – whether and, if so in what circumstances a medical practitioner can be regarded as rendering “service” under Section 2 (1) (O) of the Consumer Protection Act, 1986. It is worth a mention that there were divided opinions of various High Courts and the Hon’ble National Commission Dispute Redressal Commission on the question which came to be settled finally by the Hon’ble Supreme Court of India in this case where it was ultimately held that medical professional / hospitals / Nursing Homes, Health Centres providing consultation, diagnosis and treatment would be deemed to be rendering service to a consumer within the meaning of Section 2 (1) (O) of the Consumer Protection Act, 1986. It was also held that service rendered free of charge would stand excluded and that the relationship between patient and medical practitioner is one arising out of “contract for service” and not a “ contract of service”. There has been a march and development of law since then in the realm of medical negligence jurisprudence in various spheres pertaining to medical negligence litigation. To start with as was relied upon by the Hon’ble Supreme Court in the case of V.P. Shanta referring to the decision in the case of Laxman Bal Krishna Joshi Vs. Thrimbak Babu Godbole AIR 1969 (SC) 128. “The duties which a doctor owes to his patient are clear. A person who held himself ready to give to give medical advice and treatment impliedly undertakes that he is possessed all skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of the treatment. A breach of any of those duties gives a right of action for negligence to the patient. “A practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very law degree of care and competence judged in the law of particular circumstances of each case is what the law requires. The doctor no doubt has a discretion in choosing treatment which he propose to give the patient and such discretion is relatively ambler in cases of emergency”. This is the basic proposition of law which is still good law and the foundation on the basis of which a medical negligence case has to be decided by a consumer for a. This proposition of law has been consistently followed by Hon’ble Supreme Court in all its later pronouncements including the famous cases of Indian Medical Association 1995 (6) SCC 651; Jacob Mathew’s case 2005 (6) SCC 1; Martin F. D’souza’s case 2009 (3)SCC 1 and Batra Hospital Case 2010 (3) SCC 480 which would be discussed herein after. Jacob Mathew Vs. State of Punjab 2005 (6)SCC 1 is yet another land mark judgment on the aspect of medical negligence by the Apex Court of India. It needs to be emphasized that in this judgment a new dimension was given by the apex court and the question primarily dealt was pertaining to Section 304-A of the Indian Penal Code on account of death due to criminal medical negligence. Still however, there was a detailed pronouncement by the Hon’ble apex court pertaining to tortuous liability of doctors in cases of medical negligence. Some of the important aspects have been considered in paragraph – 18, 21, 22, 26 and 48 of the said judgment and which needs to be definitely referred to in this article. Quote 18. “In the law of negligence…………………………………………………. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. ……………………………………..It is not necessary for every professional to posses the highest level of expertise in that branch which he practices. In Michael Hyde and Associates Vs. J.D. Williams & Co. Ltd, Sedley, L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.” (Charlesworth & Percy, ibid., para 8.03). 21. “The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England (4th Edn., Vol. 30, Para 35): “35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. 22. “In the opinion of Lord Denning, as expressed in Hucks V. Cole a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.” 26. “ No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter-productive. Simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.” 48. “We sum up our conclusions as under: (1) Negligence is the breach of a duty caused 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach”, and “resulting damage”. (2) Negligence in the context of the medical professional necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or result to that practice or procedure which the accused followed. When it come to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is the time of the incident) at which it is suggested it should heave been used. (3) A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case, WLR at p. 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence., the degree of negligence should be much higher, i.e., gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa louquitur has, if at all, a limited application in trial on a charge of criminal negligence.” That then came the judgement in the case of Martin F. D’souza Vs. Mohd. Ishfaq 2009 (3) SCC 1; in this case the Hon’ble Supreme Court of India had given a new dimension while holding para 117 that whenever a consumer complaint is received against a doctor or hospital by the Consumer For a or by the criminal court then before issuing a notice to the doctor or the hospital they should first refer the matter ot a competent doctor or committee of doctors specialized in the field relating to which the medical negligence is to be attributed. However, on this aspect a later judgment of the Hon’ble Supreme Court of India in the case of V. Krishna Rao Vs. Nikhil Super specialty Hospital 2010 (5) SCC 513 has overruled the obligation of the Consumer For a to send the matter to a committee of doctors before issuance of the notice. The year 2010 saw further development and reiteration of the parameters and guidelines to be kept in mind by the Consumer For a while deciding medical negligence cases in the case of Kusum Sharma Vs. Batra Hospital 2010 (3) SCC 480. The patient developed high blood pressure in the year 1989; was obese and complained of swelling and breathlessness who was referred to Batra Hospital at the behest of Indian Oil Corporation, the employer. Amongst various tests Ultrasound and C.T. Scan it was diagnosed that there was a smooth surface of mass in the left adrenal and that surgery was imperative. The tumor concerned was also found to be malignant ;however surgery was duly performed. As alleged during the surgery the body of the pancreas was damaged and which was treated and drain was fixed to drain out the fluids. Unfortunately the patient died on account of “pylogenic meningitis” the contention of the complainant obviously being pancreatic abscess was evident as a result of pancreatic injury during the surgery.The National Commission did not find any merit in the allegations of the patient and dismissed the same primarily for want of adequate evidence. On the contrary on the basis of medical literature and evidence of eminent doctors of AIMS it was confirmed that the treating doctors had not committed any negligence. It was also found that all the standard medical protocol was duly followed and that in the circumstances no malafides can be attributed against the hospital. The court referred to in details the case sheet; medical literature; and the discharge summary. Legal principles reiterated:- the law of medical negligence has yet again been dealt quite exhaustively by the Hon’ble Supreme Court of India in this case ; both international as well as Indian; and on scrutiny of the leading cases of medical negligence both in our country and other countries especially the United Kingdom the Apex Court has reiterated that the courts are to keep in mind while deciding the cases of medical negligence ; the following principles:- “ 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. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his / her suffering which did not yield the desired result may not amount to negligence. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a took for pressurizing the medical professionals / hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.” ON PROCEDURE: The basic procedure as contemplated under the consumer Protection is on in the nature of “summary procedure” i.e no detailed trial has to be done as is done in a civil suit. But never the less in specific reference to the medical negligence cases this issue came up for consideration of the Hon’ble Supreme Court in the case of J.J. Merchant (Dr) v. Shrinath Chaturvedi,(2002) 6 SCC 635, at page 645 : Qoute: “19 it is true that it is the discretion of the Commission to examine the experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under Section 13(4)(iii)]. It also empowers such Forums to issue any commission for examination of any witness [under Section 13(4)(v)]. It is also to be stated that Rule 4 in Order 18 CPC is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that witnesses could be examined by the court or the Commissioner appointed by it. As stated above, the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses. The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still a party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time.” Summing up:- Thus concluding Consumer Protection Act is a beneficial piece of legislation which came in India to sub-serve the interest of a consumer; both of goods and services. Medical professional / hospitals / Nursing Homes, Health Centers providing consultation, diagnosis and treatment would be deemed to be rendering service to a consumer within the meaning of Section 2 (1) (O) of the Consumer Protection Act, 1986. A practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very law degree of care and competence judged in the law of particular circumstances of each case is what the law requires. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. Medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. No sensible professional would intentionally commit an act or Simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable. -End of Article-

SINGAPORE VISIT

We visited Singapore this month for two weeks during Court vacations. Singapore a favorite holiday and tourist destination in Asia is indeed a place worth a visit. Efficiency in their working is experienced as soon as you land at the Changi Airport. The immigration process takes exactly 2 minutes by the watch. Public transport is most efficient ; reasonable and friendly. It is an extremely safe and hospitable Country ; perhaps tourism being an important ingredient of their economy. It is a fully developed Economy with excellent infrastructure. Responsiveness ; accountability and substantial integrity. It is Country which is most alive to Environment and Animal preservation.

A perfect holiday with children in UNIVERSAL STUDIO SINGAPORE

INDIA UNBOUND BY GURSARAN DAS

It is must read for all, who are intersted in knowing the economic history of our Country. Brilliant writing by a Thinkiner Author.

Army Chief Gen V.K.Singh's letter

The fact of an alleged letter written by the Army Chief to the Prime Minister ; raising certain issues of our Army ( as seen from media both electronic and print ) being leaked is a serious issue. These things are not at all to be brought in Public domain especially when in concerns National Security. The whole issue is Strongly Condemned !!!

MOVE TO CURB INEFFICIENCY OF BABU'S

The times of India today (8TH FEB 2012)reported that the central Government has proposed a review of the Government Servants whether they would stay in Job or not every 15 years and then on 25 years ; to remove "dead wood". Great move to tackle sloth ; corruption and inefficiency in Government sector.

National Rural Health Mission (NRHM) in State of U.P. and the CBI Inquiry

Corruption in Society has become the order of the day. It has become a kind of an expected habit when you read the news paper in the morning that you are going to confront some news about some corruption or scam. Recently in Uttar Pradesh implementation of the National Rural Health Mission (NRHM), State of U.P. , gross abuse and misappropriation of NRHM funds by State Functionaries in a planned and concerted manner was alleged and the said issue came up before the Hon’ble Allahabad High court, Lucknow Bench in the case of Sachidanand (Sachchey) Vs. State of U.P. & Others by its judgment and order dated: 15th November 2011 passed in Writ Petition Nos. 3611, 3301 and 2647 (M/B) of 2011 (PIL).
The history and the working of the NRHM having been traced in detail by the Hon’ble High Court and factually having noticed that between the years 2005 and 2011 Central Government had released to the State of U.P. grants amounting to Rs. 8,579.38 crores and there have been gross irregularities in following the rules of procedure and misappropriation of funds relating to purchasing the medical kits; medicines; Equipments and other articles and the works were routed through government corporations, i.e. U.P. Project Corporation Limited; U.P. Jal Nigam Limited; U.P. Processing and Construction Cooperative Federation Ltd (PACCFED). Further example given by the Petitoner as reported in TOI ; that Rs. 270/- was being paid for 500 Ml. of Iodine Solution whereas the approved rate contract was of Rs. 39.5 for 500 Ml. The sterilized surgical gloves which cost Rs. 8.50. As per the Director General, supplies and disposables were being procured @ Rs. 34/- per pair. A common liquid hand wash for which the rate contract of the State Government is Rs. 104/- for 1000 Ml was being procured @ Rs. 450/- for 200 Ml. Another example is Iron Folic Acid Tablets that were being procured from other States and Union Health Ministry @ Rs. 10 – 14/- for 100 tablets while the State paid Rs. 18/- per 10 tablets. It was also submitted before the Hon’ble Court that capricious decisions were taken in the Executive Committee Meeting in choosing the agencies to get the required works done. Unfortunate murders of two C.M.O.s namely, Dr. V.K. Arya and Dr. V.P. Singh admittedly relating to the abuse of NRHM funds, demonstrated the gravity of the situation and therefore a clear case for enquiry by CBI was made out.(as argued by the petitioner)
Keeping in view the various facets of the issue and taking into consideration the arguments of all the concerned parties together with various observations of various expert reports; the view of the Finance Team of the Central Government for the respective years the Hon’ble Allahabad High Court was been pleased to direct the Director, CBI to conduct a preliminary enquiry in the matter of execution and implementation of the NRHM and utilization of funds at various levels during such implementation in the entire State of U.P. and register regular case in respect of persons against whom prima facie cognizable offence is made out and proceed in accordance with law. The enquiry is to be conducted and completed within a period of 4 months and the State Government has been directed to hand over and make available all the records as may be required by the CBI and render full support and cooperation to CBI.