REGULAR SECOND APPEAL No.744 OF 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.744 of 2011 DATE OF DECISION: FEBRUARY 14, 2011 Institute of Technology and Management .... Appellant Versus Shaina & another .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Saurabh Dalal, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) Defendant No.1 Institute of Technology and Management (in short, the Institute) having failed in both the courts below has come up by way of instant second appeal. Respondent No.1-plaintiff Ms.Shaina filed suit against defendant No.1-appellant and defendant-respondent No.2 Maharishi Dayanand University, Rohtak. Facts in this case are not very much in dispute. The plaintiff is student of defendant No.1- Institute, for Information and Technology course for sessions 2008-2012. The plaintiff was admitted in the Institute in August, 2008 in first Semester and appeared in its examination in January, 2009. Second Semester was to commence from January, 2009, but due to some incidents in the Institute, the second Semester commenced late i.e. in last week of February, 2009. Plaintiff's case is that she suffered fever and was advised rest for 8 days from 24.03.2009 to 31.03.2009 by Doctors of Tirath Ram Hospital, Gurgaon. She was advised further rest by Doctors of General Hospital, REGULAR SECOND APPEAL No.744 OF 2011 -2- Gurgaon. Consequently, her attendance fell short of the minimum requirement of 75%. However, defendant No.1-Institute has power to condone the short attendance to the extent of 25% of the total lecturers inter alia on the ground of illness of the student as provided in the Ordinance of the University. On account of jaundice, the plaintiff could not attend the classes and, therefore her attendance fell short but it was still above the mark of 50%. University issued roll number for the plaintiff for appearing in second Semester examination. The plaintiff even appeared in practical examinations of second Semester, which were conducted from 29.04.2009 till 03.05.2009. However, thereafter defendant No.1 detained the roll number of plaintiff for the remaining (theory) examinations of second Semester. The plaintiff filed suit against said action of defendant No.1. Defendants No.1 and 2 in their separate but similar written statements justified the action of defendant No.1 in declining permission to the plaintiff to appear in the examination. She remained irregular in attending the class since 24.03.2009 onwards. It was also pleaded that plaintiff's total attendance was 49% and, therefore, even after condoning shortage of attendance to the extent of 25%, she was not eligible to appear in the examinations. Various other pleas were also raised. Learned Civil Judge (Junior Division), Gurgaon vide judgment and decree dated 14.06.2010 decreed the plaintiff's suit. First appeal preferred by defendant No.1 has been dismissed by Learned Additional District Judge, Gurgaon vide judgment and decree dated 01.10.2010. Feeling aggrieved, defendant No.1 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. REGULAR SECOND APPEAL No.744 OF 2011 -3- Plaintiff has led sufficient evidence to prove that she was suffering from jaundice and, therefore, she could not attend the classes since 24.03.2009. In this regard, she has examined Dr. Sanjay Verma (PW-6) from Tirath Ram Hospital where she was advised rest since 24.06.2009 till31.03.2009. Thereafter the plaintiff got treatment from Civil Hospital, Gurgaon since 01.04.2009. Dr. Gulshan Arora, SMO of the said hospital has been examined as PW-3 and he has proved various certificates issued by the said hospital advising rest to the plaintiff, who was suffering from jaundice. In view of this reliable evidence, Courts below have concurrently found that there was sufficient case for condonation of short attendance of the plaintiff. Here it is to be noticed with significance that Ordinance of the University provides that shortage in attendance can be condoned not only on the ground of illness of the student, but also on the ground of illness or death of parents, brother, sister or other close family member and on any other reason beyond the control of the student, to the satisfaction of the Principal/Director of the College/ Institute or Head of the University Teaching Department. Thus the Ordinance is very literal in the matter of condonation of shortage in attendance, although on sufficient ground. The Ordinance provides for condonation of shortage in attendance even on the ground of illness of parents, brother, sister or any other close family member of the student. In the instant case, however, the student herself fell ill. The Ordinance provides for condoning the shortage in attendance on this ground. Learned counsel for the appellant contended that certificates produced by the plaintiff are procured ones. The contention cannot be accepted. Senior Medical Officer of the Civil Hospital appeared in witness box and his testimony could not be impeached in cross-examination. Even Doctor from private hospital has been examined regarding initial treatment of the plaintiff. REGULAR SECOND APPEAL No.744 OF 2011 -4- His statement also could not be shattered in cross-examination. Even if for a moment it be assumed that the private hospital might have tried to favour the plaintiff by issuing the medical certificate, the same could not be said about the certificates issued by Government Hospital from time to time in continuation of medical certificate of the private hospital. Consequently, there was sufficient ground for condonation of short attendance to the plaintiff as rightly held by the Courts below. Learned counsel for the appellant next contended that the total attendance of the plaintiff was 48.78% and, therefore, even after condonation of 25%, the plaintiff was not eligible for appearing in the examination. This contention is also untenable. The plaintiff had opted for an additional subject of Communication Skills, which is not part of the usual curriculum. Even if the plaintiff does not appear in the examination of the additional subject or does not opt for the same at all, she can still complete the course of Information Technology. After counting attendance in the said additional subject and the main subjects, the attendance fell short of 50%. However, admittedly the attendance in the main subjects only was well above the mark of 50% i.e. 51% according to defendant No.1 and 52% according to the plaintiff. Consequently, attendance in the main subjects being still above the benchmark of 50%, the suit has been rightly decreed by the Courts below. Learned counsel for the appellant contended that if shortage in attendance is condoned liberally, it would give rise to tendency among the students to bunk the classes. This Court shares this concern of the appellant- Institute. Such tendency has to be curbed by all the stake holders and the Courts would be one with the educational Institutes in this effort. However, in the instant case, the plaintiff cannot be said to be non-serious student. Her REGULAR SECOND APPEAL No.744 OF 2011 -5- attendance in the first semester was not short. It also appears that her attendance in subsequent semesters is also not short. Consequently, the plaintiff should not be deprived of her right to appear in the examination of second Semester, merely on the ground of apprehension of the appellant-Institute that permitting the plaintiff to appear in the examination by condoning the shortage of attendance would encourage other students to remain absent from classes. Concurrent finding recorded by the courts below in favour of the plaintiff is justified by the evidence on record and is supported by cogent reasons. The said finding is not based on misreading or miss-appreciation of evidence nor it is shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 14th February, 2011 'raj'