The story of Ms Molly, student-litigant-victor

Act fast to get your marks re-evaluated. Court orders have been sympathetic to students

We tell you the story of one Ms Molly, a young girl from Kerala and of her Kerala University. It is one of those vagaries of fortune, rather misfortune, that descend on someone totally unversed with such adversities. Ms Molly was just a student. And she had to take on the might of the institution where she studied.

Some time back,

Ms Molly had a setback. She lived in Kerala, amongst the country’s the most educated citizenry. If the saying that higher the level of education, the greater the recourse to courts of justice, is true,
Ms Molly lived up to it. She took on the bastion of education, her own university. But why?

Ms Molly was a young, aspiring girl. She went to college and studied hard. She took her exams. But did not get the marks she expected. Now, Ms Molly was an angry little girl. The University had failed her, not by way of the marks it had given her, but by dishonouring her commitment.

The University had a system of revaluation. It allowed the students to ask for their papers to be corrected once again in the hope of getting better marks. Now, there is often a problem with corrections. Not the correction itself but the noting down of marks in the aggregation column. Some marks get missed, or are not written by the evaluator. Or, just incorrectly totalled. It is what we call ‘human error’. And just as in court where no litigant can suffer because of a fault of the court, no student can suffer for the mistake of the institution of education.

Ms Molly filed an appeal. She asked for revaluation of her marks. She had high hopes and other exams to take. The next one was not far away. To facilitate such a student, the University had originally set a time limit of a maximum of 45-days to announce the revaluation results.

In an earlier case, the University had taken a year, from April 1984 to June 1985, to announce the revaluation results. The court had held that was incorrect, especially since the 45-day limit had been substantially breached and the student, one Ms Pai, had also missed the September exam. So what had the University done to remedy the situation? Hard to believe, but it simply got rid of the 45-day rule! Now, what was Ms Molly to do?

You be the judge.

Ms Molly went to court. The court appointed an amicus curiae, i.e., a friend of the court. He was advocate V Chidambaresh. With his help, the court came to a decision. It favoured
Ms Molly, 45-day rule or not. It rightly held that the preceding case was a good harbinger and had to be followed. Revaluation must be fast. Fast enough to allow the student to appear for the next exam, whatever it may be. The student had lost a year. The student had to be compensated. She was awarded Rs10,000/-.

This holds a lesson for Moneylife readers. Act fast and apply for revaluation. But understand that a revaluation can also mean lesser marks. There might have been an error, whereby the student may have been awarded higher marks initially. There is also the possibility of a failure, following the revaluation.

Can cut both ways.

[An interesting aside is a recent case where a litigant was awarded an interim (in between) monetary relief. Well-wishers egged him on to appeal the order, asking for 10 times as much. We advised him to confirm with his solicitor if the appeal could result in a reversal, either total or partial. After a lot of discussion, the man realised that he was treading on thin ice. Thankfully, he backed out. And saved a few lakh rupees, too.]

Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected] or [email protected]



MCA proposes relaxing Companies Act provisions for private companies

The MCA has proposed as many as 13 relaxations for private companies, from various provisions of the Companies Act, including acceptance of public deposits, share capital, voting rights, further issuance of shares, appointment of auditor and directors, among others

To ease the regulatory burden for private companies including smaller firms, the Ministry of Corporate Affairs (MCA) on Tuesday proposed relaxing certain provisions of the new Companies Act for such entities.


The proposed relaxations include certain provisions relating to prohibition on acceptance of public deposits, share capital, voting rights, further issuance of shares, appointment of auditor and director, restriction on board powers, loans to directors, related party transactions, as also appointment of top management personnel.


Through a draft notification, the MCA has proposed as many as 13 relaxations for private companies from the various provisions of the Companies Act which came into effect at the beginning of the current fiscal.


While the draft notification would be placed before each house of the Parliament, suggestions and comments are invited from the public till 1st July, the Ministry said in a circular.


The statistics from MCA for 2011, put the number of companies registered in India at 11.63 lakh. About 24,682 or 2.12% out of these have paid up capital between Rs2-Rs5 crore and 23,589 or 2.02% have capital exceeding Rs5 crore, leaving a whopping 95.84% of the companies with capital below Rs5 crore or $1 million; this is far below global standards. In India, stock exchange listed companies constitute only a miniscule 0.6% of the total, leaving 99.4% to be individuals or private companies running businesses essentially with their own capital or borrowings.


Among various proposals, it has been proposed that a private company be exempted from having a share capital of either equity share capital or preference share capital.


The other exemption includes the requirement of every shareholder of a company being given a right to vote on every resolution placed before the company, and this voting right being in proportion to the shareholding.


With regard to further issue of share capital by a private company, it has been proposed that any such offer would need to be made through a notice during a time period 'not less than seven days and not exceeding 15 days'. The existing provision has a similar time period of not less than 15 days and not more than 30 days.


With regard to issue of shares to employees under an ESOP plan, it has been proposed that the same can be done through a 'special resolution' in case of private companies, as against a special resolution for others.


It has also been proposed that certain rules on 'prohibition of acceptance of deposits from public' would not be applicable to small private companies.


Such companies would include those, "having 50 or lesser members if they accept monies from their members not exceeding 25% of the aggregate paid up capital and free reserves of 100% of the paid up capital, whichever is more, and which inform the details of such monies to the Registrar in the prescribed manner".


Also, the provisions for meeting of shareholders with regard to notice, statement to be annexed with such a notice, quorum, appointment of chairman, proxies, voting restriction, voting by show of hands and demand for poll would not apply to a private company if its 'article of association' provides otherwise.


What could the Budget focus on?

The Modi government needs to cut back on less effective redistributive polices and implement reforms that will boost productive investment and job growth, says Morgan Stanley

The upcoming Union Budget for FY2015 would be presented on 10th July by the Finance Minister, Arun Jaitley. The Budget is being presented in the backdrop of weak growth – driven by both sluggish investment and consumption coupled with high inflation, which makes it pertinent for the new government to come up with a holistic road map to improve the growth outlook. "We believe the government needs to cut back on less effective redistributive polices and implement reforms that will boost productive investment and job growth," said Morgan Stanley.

According to a research note from Morgan Stanley, even though history suggests that the budget's influence on short-term performance is declining, expectations (measured by pre-budget performance) are still important in deciding what the market does after the budget – if the pre-budget returns are positive, there is a 90% chance that the post-budget returns are negative.

“History suggests that the Union Budget's influence on the market's short term performance is declining – but the next budget could still leave a trail of impact. The upcoming budget could be important because of where India is placed cyclically, what the mandate for the government implies and because this is the first non-Congress government in a decade," the report said, quoting Morgan Stanley's India strategist Ridham Desai.

Here are the industry specific expectations of Morgan Stanley:

Positive – for the oil & gas, financials, telecom, metals / mining, and utilities industries

Neutral – for the media, infrastructure, property, cement, auto and consumer industries

The Narendra Modi-led National Democratic Alliance (NDA) government, in its preparation for the FY2015 fiscal accounts, will need to consider adjusting the FY2014 reported fiscal deficit for one-off measures taken in March to make a better assessment of the starting point. "We believe there is limited scope for the government to undertake drastic measures to reduce expenditure to GDP. In this context, we believe the only credible way to reduce spending is by cutting subsidies (mainly oil subsidy). We expect that the government’s approach will be to maintain a moderate pace of expenditure growth at around 9.5% year-on-year (Y-o-Y) even as growth picks up to ensure sustainable fiscal consolidation." Morgan Stanley had said in its earlier research note.

Increase tax to GDP

Morgan Stanley said the trend in receipts, particularly tax revenue, has been very weak, in line with the sluggish growth environment. Indeed, gross tax revenue has declined to 10% of GDP in FY2014 from the peak of 11.9% of GDP in FY2008. Recovery in growth should help increase tax revenues, but since recovery in growth and thus tax revenue will be gradual, Morgan Stanley said it believes the government would also need to initiate additional measures to achieve a 0.5 percentage points reduction in the fiscal deficit.

"We believe that the government will have to roll back the excise duty cuts for the automobile industry and other white goods segments (electronic goods, machinery, mechanical appliances) that were introduced in the interim budget. As such, this excise duty will be reinstated automatically on 1st July, hence the budget does not need to initiate additional measures. In addition, we believe the
government also needs to increase receipts through divestments," the report said.

Managing rural wages in line with productivity

Morgan Stanley said, it believes that managing rural wage growth in line with productivity is one of the most important measures to cut back on redistributive policies and improve the inflation outlook sustainably.

Rapid acceleration in rural farm wages – especially since the implementation of the national rural employment guarantee scheme (NREGS) – has been one of the key factors behind India’s high food inflation and overall inflation. To be sure, wages account for about 50% of operating costs for food production and the weight of the food index in CPI is 46.7%. Moreover, total wages account for around 35% of national domestic product. Indeed, rural farm wage growth accelerated to an average of 17.9% over the last five years, compared with the average growth of 5.8% in the preceding five years.

Though nominal rural wage growth has been gradually decelerating over the last few months, the pace is still about 14% year-on-year (YoY), higher than nominal GDP growth of 12% YoY.

Morgan Stanley said it believes that rural wage growth will continue to decelerate as the one-time catch-up effect to NREGS wages wanes. "We do not expect the government to reduce the allocation to the scheme; however, we expect that it will outline measures with respect to improving the efficacy of the scheme. In this context, we expect the government to take measures to set up a social audit mechanism, increasing supervision and improve vigilance to improve implementation of the scheme. At the same time, we expect the government to take steps to ensure that the scheme is linked to programs that help increase agricultural productivity by creating relevant infrastructure facilities for the rural economy," the report added.

Improvement in the business environment

According to Morgan Stanley, the first area on which the new government will focus will be to improve the business environment, which has remained challenging since the credit crisis. Policy uncertainty, corruption-related investigations and regulatory hurdles had led the business environment to deteriorate. "We believe that policy makers will likely address this by providing a consistent policy framework in key infrastructure and industrial sectors, work on streamlining the approval process for investment projects, facilitate the rehabilitation of corporate balance sheets and provide funds for recapitalizing SOE banks to unclog their balance sheets," it said.

"Moreover," the report said, "ensuring legal certainty and streamlining tax laws will play an important role in giving the corporate sector incentives to invest, thereby boosting growth further."
Poor infrastructure facilities, such as lack of uninterrupted or reliable power supply, last mile rail and road connectivity, are also a big impediment to improving the business environment for corporates. In addition, industry also views the new land acquisition law as increasing the procedural complexities in acquiring land for private projects.

Lastly, one of the critical policy reforms that need to be taken up soon, is the implementation of the Goods and Services Tax (GST) Act. We believe this will help accelerate productivity growth in the manufacturing sector. Implementing the GST is likely to accelerate growth, boost exports and improve tax collections.

Morgan Stanley said, it believes the government is likely to stress the need to improve the business environment and reiterate its stance on good governance. It said, "In this context, we expect the government to provide a framework for its approach to streamlining approval of investment projects. We believe the government would also provide clarity on the retrospective taxation issue, which has dented investor confidence."

How to improve allocation of natural resources through transparent mechanisms

Several supply bottlenecks – including the approval process for environmental impact, mining rights and land acquisition – have hampered the pace of national investment growth. Morgan Stanley said that introducing a transparent mechanism to allocate these natural resources and streamline the approval process can address these structural bottlenecks. Corruption-related investigations have only added to these supply bottlenecks.

Apart from constraining domestic output and pushing productivity growth lower, these bottlenecks also added to the country’s external stability challenges. "Our estimates show that the increase in coal imports and decline in iron ore exports likely added close to 0.8% of GDP to India’s current account deficit between FY2005 and FY2014. Similarly, India’s oil energy dependence on imports has also been rising. We believe the new government will help accelerate the effort to introduce a transparent mechanism to allocate these natural resources and streamline the approval process, thus addressing these structural bottlenecks," Morgan Stanley said.


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