Bombay High Court
Arun Nanasaheb Kadam And Others vs The State Of Maharashtra Through ... on 30 August, 2024
2024:BHC-AUG:19898-DB
8613.23-WP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8613 OF 2023
Arun Nanasaheb Kadam & Ors. ..... Petitioners
Vs.
The State of Maharashtra & Ors. ..... Respondents
Mr. V. D. Hon, Senior Advocate i/b. Mr. A. V. Hon a/w. Mr. A. D.
Sonkawade for the petitioners
Mr. V. D. Sapkal, Senior Advocate, Special Counsel with Mr. A. B.
Girase, Government Pleader for respondent No.1 - State
Mr. S. B. Deshpande, Senior Advocate i/b. J. P. Legal Associates
a/w. Mr. Swapnil B. Joshi for respondent Nos.2 and 3.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
KISHORE C. SANT, J.
RESERVED ON : AUGUST 26, 2024
PRONOUNCED ON : AUGUST 30, 2024
JUDGMENT (PER : CHIEF JUSTICE)
(A) CHALLENGE:
1. By instituting the proceedings of this petition, filed under
Article 226 of the Constitution of India, the petitioners who are
elected President and Vice President of Maharashtra Nursing
Council (hereinafter referred to as the Council) and other elected
and/or nominated members, challenge the validity of the
impugned Notification dated 5th July 2023, issued by the State
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Government in the Department of Medical Education and Drugs
whereby, the Government has dissolved the Council and has
appointed one Dr. Anant Shingare, Assistant Professor, G.G.M.C.
and Sir J.J. Group of Hospital, Mumbai as its Administrator, till the
new Council is constituted in the prescribed manner.
(B) BACKGROUND FACTS:
2. The term of the last elected Council was to end in December
2018 and accordingly, the elections for constitution of the Council
was due in the year 2018, however, since the Council was not
being constituted by election, the issue was taken up before this
Court at Mumbai and in Notice of Motion No.613 of 2018 in writ
petition No.2005 of 2012, this Court passed an order directing
State Government to take action strictly in conformity with the
provisions of the Maharashtra Nurses Act, 1966 (hereinafter
referred to as the Act of 1966). The Court, by passing the said
order on 12th December 2018, further made it clear that the action
of the State Government of appointment of an Administrator to
the Council was not examined; neither it would be understood that
the Court had given the Government one year's time to hold
elections. The Court expressed its expectation in the said order
that the State Government will take appropriate steps in
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accordance with law so as to ensure that the Council is constituted
under Section 3 of the Act of 1966, as expeditiously as possible
and a suitable mechanism is put in place to administer the affairs
and discharge of the functions and duties of the Council, in the
intervening period. The said order, dated 12 th December 2018
passed by this Court at Bombay is extracted hereinbelow:
"19. We further direct the State Government to take action strictly in
conformity with the provisions of the Act, 1966. It is made clear that
we have neither examined, much less approved, the proposed action of
the State of appointment of an administrator nor it be understood that
we have given the State Government one year's time to hold the
elections. We expect the State Government to take appropriate steps
in accordance with the provisions of the Act, 1966 so as to ensure that
the Council is constituted, under Section 3 of the Act, as expeditiously
as possible and a suitable mechanism is put in place to administer the
affairs, and discharge the functions and duties of the Council, in the
intervening. Period."
3. It appears that even after the said directions given by the
Court in its order dated 12th December 2018, since the Council
was not being constituted by election, the Maharashtra State
Nursing Association filed writ petition No.7663 of 2019 before this
Court which was finally disposed of by a coordinate Bench by
means of an order dated 25th June 2019, wherein after noticing
the earlier order passed by the Court on 12th December 2018, the
Court observed that the State Government would be bound by the
order dated 12th December 2018. The Court further observed in
the said order that if the respondents were not adhering to the
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said order, then further steps would be taken by the parties in the
said Notice of Motion. The operative portion of the order dated
25th June 2019 passed by this Court in writ petition No.7663 of
2019 is extracted hereinbelow:
"7. Naturally, the State Government would be bound by the order
dated 12.12.2018 passed in Notice of Motion No. 613 of 2018 in Writ
Petition No. 2005 of 2012. If the respondents are not adhering to the
said order, then the further steps would be taken by the parties in the
said Notice of Motion.
8. Writ Petition is disposed of accordingly. No costs."
4. From the documents available on record, it is apparent that
it is only after the aforesaid two orders passed by this Court, viz.
order dated 12th December 2018 and 25th June 2019 that the
elections to the Council were held in December 2021 however, the
names of the elected managing committee members of the
Council were not being published which necessitated filing of writ
petition No.4204 of 2022 which was allowed by a coordinate
Bench of this Court by means of an order dated 18th April 2022.
The Court, while allowing the said writ petition, observed that once
the elections are already held, the State Government was under
obligation to publish the result of the names of the elected
managing committee members of the Council and to publish the
same in the Government Gazette. The Court, accordingly,
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directed the State Government to publish the names of the elected
managing committee members in the official gazette as per the
list forwarded to the Government vide letter dated 10th December
2021 by the Returning Officer along with the members as per the
provisions contained in the Act of 1966, within a period of two
weeks from the date of said order, without fail. The operative
portion of the order dated 18th April 2022, whereby writ petition
No.4204 of 2024 was allowed, is quoted hereunder:
"3. In our view, once the elections are already held by the Managing
Committee, under Section 4 of the said Act, the State Government is
under an obligation to publish the result of the names of the Elected
Managing Committee Members of the Council and to publish in the
Maharashtra Government Gazette. We, accordingly, direct respondent
No. 1 to publish the names of the Elected Managing Committee
Members in the Maharashtra Government Gazette as per the list
forwarded to the Government vide communication dated 10.12.2021 by
the Returning Officer along with the members as per the provisions of
the Maharashtra Nurse Act, 1966 within a period of two (2) weeks from
today without fail.
4. Writ Petition is allowed in the aforesaid terms. Rule made
absolute accordingly."
5. Since even after the order dated 18 th April 2022, the list of
elected members was not being published in the official gazette,
contempt petition bearing No.292 of 2022 in writ petition No.4204
of 2022 was filed, wherein after observing the directions issued
by the Court in its order dated 18th April 2022 in writ petition
No.4204 of 2022, the Court issued notices to the respondents for
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disobedience of the said order, under the Contempt of Courts Act,
1971. It is only on issuance of the contempt notices by this Court
that the order dated 18th April 2022 was complied with and the
list of the elected managing committee members of the Council
was published which led to final disposal of the contempt petition.
6. Thereafter, petitioner No.5-Dr. Ramling Basling Mali and
petitioner No.1-Arun Nanasaheb Kadam were elected as President
and Vice President respectively of the Council which was notified
by means of Notification, dated 8th August 2022, issued by the in-
charge Registrar of the Council. It is also on record that
immediately after election of petitioner No.5 as President of the
Council, an attempt was made by the State Government to
remove him which led the petitioner No.5 to file writ petition
No.15119 of 2022, wherein an interim order dated 19th December
2022 was passed by the Court. An attempt was also made to
remove petitioner No.1 from the post of Vice President which
action was challenged by petitioner No.1 by instituting writ
petition No.13208 of 2022 before this Court, wherein as well, an
order was passed on 23rd December 2022 providing therein that
till next date no further process shall be undertaken pursuant to
the impugned communication, whereby petitioner No.1 was called
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upon to explain as to why he should not be held to have incurred
disqualification under Section 7(1)(f) of the Act of 1966.
7. It is in these background facts that the impugned
Notification, dated 5th July 2023 has been issued by the State
Government dissolving the Council and appointing an
Administrator till new Council is constituted in the prescribed
manner.
(C) Arguments made on behalf of the parties:
8. We have heard Mr. V. D. Hon, learned Senior Advocate
representing the petitioners, Mr. V. D. Sapkal, learned Senior
Advocate assisted by Mr. A. B. Girase, Government Pleader for
respondent No.1 - State and Mr. S. B. Deshpande, learned Senior
Advocate appearing for respondent Nos.2 and 3 and have also
perused the records available before us on this petition.
(C1) Submission made on behalf of the petitioners:
9. Mr.Hon, learned Senior Advocate representing the
petitioners has vehemently argued that the impugned Notification,
dated 5th July 2023 whereby the elected Council has been
dissolved, is not only in clear violation of the provisions contained
in Section 40 of the Act of 1966 but is also in flagrant violation of
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the principles of natural justice inasmuch before issuing the said
Notification dissolving the Council, adequate opportunity was not
provided to the Council which vitiates the impugned Notification.
He has also argued that the attending circumstances of the case
clearly establish that initially the State Government was reluctant
in constituting the elected Council and it is only on repeated
interventions of this Court that with great reluctance the elected
Council was constituted. He has also stated that immediately after
constitution of the elected Council, attempts were made initially
to remove President and Vice President of the Council which
ultimately failed because of the intervention made by the Court
and therefore, the impugned Notification, dated 5 th July 2023
cannot be said to have been issued on the basis of a bona fide
decision of the State Government.
10. Drawing our attention to Section 40 of the Act of 1966, it
has been contended by learned Senior Advocate representing the
petitioners that though the said provision vests certain control in
the State Government relating to the affairs of the Council and
confers the powers upon the Government to dissolve the Council
or even remove the President and Vice President, however, such
drastic powers cannot be exercised without there being sufficient
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material leading to the conclusion that the Council has failed to
exercise, or has exceeded or abused, any of the powers conferred
upon it or is incapable of functioning. According to Mr.Hon, such
drastic step of dissolving the Council is permissible only if the
State Government forms an opinion that failure, excess, abuse or
incapacity on the part of the Council is of serious character and
since in this case no such opinion could be formed on the basis of
material available on record, the impugned Notification is
unlawful.
11. It has also been argued on behalf of the petitioners that
dissolution of the elected body can take place only if the Council
fails to remedy the alleged failure, excess, abuse or incapacity
within some reasonable time to be prescribed by the State
Government and since in this case no such time was ever provided
to remedy the alleged failure, excess, abuse or incapacity, the
impugned Notification cannot be said to be in conformity with the
requirement of Section 40 of the Act of 1966.
12. On the aforesaid counts, it has been prayed on behalf of the
petitioners by the learned Senior Advocate that the impugned
Notification deserves to be quashed and set aside.
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13. Opposing the writ petition, learned Senior Advocate Mr. V.
D. Sapkal, Special Counsel representing the State has submitted
that the impugned Notification is perfectly in tune with Section 40
of the Act of 1966 which vests power in the State Government to
dissolve the Council in the circumstances as enumerated in
Section 40 of the Act of 1966, which existed in the instance case
and hence, no fault can be found with the impugned Notification.
He has also stated that since the Council has failed to act as per
the powers conferred on it and the instructions given by the State
Government and hence, the action on the part of the State
Government in dissolving the Council, is lawful.
14. Drawing our attention to Section 15(3) of the Act of 1966, it
has been stated by the learned Senior Advocate representing the
State that the Council, without prior sanction of the Government,
appointed a review committee and reviewed the performance of
Smt. Rachel George, In-charge Registrar of the Council for three
years and that the report of the Committee pointed out that said
In-charge Registrar had committed certain malpractices and
irregularities and accordingly, the Council appointed one Mrs.
Swati Bhalerao, Deputy Registrar as Registrar without prior
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approval of the Government and accordingly, the Council has
completely failed to follow the mandate of Section 15(3) of the Act
of 1966. Further submission made by Mr. Sapkal is that the fact
that the appointment of Mrs.Swati Bhalearo as Registrar of the
Council was made, was taken note of and accordingly, explanation
was called from the Council vide letter dated 21st September 2022.
In response thereto, certain clarifications were submitted by the
Council to the State Government which were not acceptable. He
has further stated that Mrs. Rachel George submitted her
resignation from the post of Dy. Registrar on 29 th August 2022.
However, the Council approved her resignation without sanction
of the Government and thus removal of Mr. Rachel George from
the post of Registrar and appointment of Mrs. Swati Bhalerao by
the Council was illegally done, being in violation of the provisions
contained in Section 15(4) of the Act of 1966.
15. Pointing to another irregularity allegedly committed by the
Council, it has been submitted that the Council had published an
advertisement on 30th September 2022 to fill up the regular post
of Registrar, however, the Council had not taken the prior
approval of the Government which is in violation of Rule 103(5) of
the Maharashtra Nursing Council Rules, 1971 for the reason that
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the Council did not send any proposal for filling up the post of
Registrar by promotion or direct recruitment; neither did it
prescribe any procedure. Our attention has also been drawn to
an objection raised by a Member of Legislative Assembly during
winter session assembly 2022 at Nagpur and accordingly, as per
the instructions given by the Hon'ble Minister of the Department
concerned the recruitment process was cancelled by the State
Government vide its letter, dated 29th December 2022. It has
been stated that despite cancellation of the recruitment process,
the Council wrote a letter to the State Government on 30 th
December 2022 in a language that is indecent and disrespectful
to the Legislature which amounted to disobeying the orders of the
State Government. Referring to various such averments made in
the affidavit-in-reply filed on behalf of respondent No.1, learned
Senior Advocate has argued that thus, on account of various
irregularities committed by the Council, the State Government
took the decision to dissolve it in terms of the provisions contained
in Section 40 of the Act of 1966 which does not suffer from any
illegality and hence, the writ petition deserves to be dismissed.
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(C3) Arguments on behalf of respondent Nos.2 and 3:
16. Learned Senior Advocate Mr. Deshpande, appearing for
respondent Nos.2 and 3 has not only supported the submissions
made by learned Counsel representing respondent No.1 but has
also submitted that the procedure as prescribed in Section 40 of
the Act of 1966 has been followed in its letter and spirit and that
the ground taken by the petitioners relating to violation of
principles of natural justice is not available to them. He contended
that Section 40 does not require prior opportunity of hearing
before decision to dissolve the Council is taken by the State in
exercise of its powers vested under the said provision.
17. Relying on the judgment in the case of Maneka Gandhi Vs.
Union of India1, it has been argued by Mr.Deshpande that there
cannot be any straight-jacket formula so far as the principles of
natural justice are concerned and the same cannot be read in a
Statute in absence of any such prescription available in the
Statute. In his submission, he has stated that since Section 40 of
the Act of 1966 does not prescribe for providing opportunity of
hearing, the ground of non-adherence to the principles of natural
1 (1978) 1 SCC 248
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justice is not available to the petitioners. He has justified the
impugned Notification and has urged the Court to dismiss the writ
petition.
(D) Discussion and analysis:
18. Before delving into the competing arguments made by
learned Counsel representing the respective parties, we may note
the provisions of Section 40 of the Act of 1966 which runs as
under:
"40. Control of State Government-
(1) It at any time it appears to the State Government that the Council
or its President or Vice-President has failed to exercise, or has exceeded
or abused, any of the powers conferred upon it or him by or under this
Act, or has ceased to function, or has become incapable of functioning,
the State Government may, if it considers such failure, excess, abuse
or incapacity to be of serious character, notify the particulars thereof to
the Council or the President or the Vice-President, as the case may be.
If the Council or the President or the Vice-President fails to remedy such
failure, excess, abuse or incapacity within such reasonable time as the
State Government may fix in this behalf, the State Government may
remove the President or the Vice-President or dissolve the Council, as
the case may be, and in the case of dissolution of the Council cause all
or any of the powers, duties and functions of the Council to be
exercised, performed and discharged by such persons and for such
period not exceeding two years, may think fit, and shall take steps to
constitute, a new Council."
19. The afore-quoted provision contained in Section 40(1) of the
Act of 1966 vests in the State Government control over the affairs
of the Council and also empowers the Government to dissolve the
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Council in certain circumstances. If we minutely scrutinize the
scheme as enunciated in Section 40 of the Act of 1966 what we
find is noted below:
(i) The State has power to dissolve the Council under
certain circumstances.
(ii) If the State notices that the Council has failed to
exercise or has exceeded or has abused powers
conferred upon it or has ceased to function or has
become incapable of functioning and the
Government considers such failure or excess etc. to
be of serious character, then such particulars are to
be notified to the Council.
(iii) The State Government, on notifying the particulars
of the alleged failure/excess and abuse etc. has to
require the Council to remedy such failure, excess,
abuse or incapacity within some reasonable time to
be fixed by the State Government in this behalf.
(iv) if the Council fails to remove such failure, excess,
abuse or incapacity within such reasonable time
which may be fixed by the State Government, the
State Government has been empowered to dissolve
the Council.
(v) in case the State Government dissolves the Council
it will cause all or any of the powers, duties and
functions of the Council to be exercised, performed
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and discharged by such person and for such period
not exceeding two years, which is thought fit and
simultaneously, the Government shall take steps to
constitute a new Council.
20. Thus, it is apparent from a perusal of what is embodied in
Section 40 of the Act of 1966 that if the State Government notices
any action/actions of the Council where it has failed to exercise or
has exceeded or abused its powers, or has ceased to function or
has become incapable of functioning, it has to first form an opinion
that such failure, excess or abuse or incapacity is of serious
character and only then it has to notify the particulars thereof to
the Council. The scheme as per Section 40 also provides that the
drastic action of dissolution of Council can be taken only if the
Council fails to remedy the failure, access, abuse or incapacity to
be notified to the Council, within the time prescribed by the State
Government for the said purpose and not otherwise.
21. Thus, in our opinion, the actin of dissolution of the Council
has to necessarily precede not only the notification of particulars
of alleged failure, excess etc. on the part of the Council by the
State Government but also the prescription time to be intimated
to the Council to remedy such failure or excess etc. In case even
after notification of such failures or excess etc., the Government
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does not fix any time to remedy the same and the decision to
dissolve the Council is taken by the State Government, in our
opinion, such a course adopted by the State Government for
dissolving the Council would manifestly run contrary to the
scheme of Section 40 of the Act of 1966.
22. In light of the aforesaid observations made by us in respect
of the scheme embodied in Section 40 of the Act of 1966, we, now
proceed to examine as to whether the alleged abuse or excess or
incapacity etc. of the Council was notified to it by the State and
as to whether after notifying the particulars of
failures/excess/abuse/incapacity etc. any time was intimated or
communicated to the Council to remedy the same during which
the Council would have failed to correct or rectify the
failure/excess/abuse/incapacity, as alleged by the State
Government. In case we find that any of the steps or procedures
prescribed in Section 40 of the Act has not been followed by the
State Government while issuing the impugned Notification
dissolving the Council, the impugned Notification would be
rendered unlawful for want of observance of the provisions
contained in Section 40 of the Act of 1966.
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23. We may also note at this juncture that dissolution of an
elected body is a drastic step and as such all mandatory
precautions statutorily provided which should precede the action
of dissolution, should necessarily be adhered to by the State
Government. We may also note that since dissolution of an
elected body results in a very drastic action, even if Section 40 of
the Act does not expressly provide for any opportunity of hearing
to the Council before decision of dissolution of Council is taken,
the principles of natural justice are to be read in the said provision.
24. It is true that there is no straight-jacket formula for
observance of principles of natural justice. However, in case any
intended action on the part of the authority concerned is likely to
visit the elected body with such serious consequences like its
dissolution, in our opinion, even if the statutory provision does not
specifically contain the provision for providing the opportunity of
hearing and submitting explanation to the intended action, the
principles of natural justice are to be read to be intrinsic in such a
provision permitting such extreme actions.
25. Hon'ble Supreme Court in the case of Dr. Rash Lal Yadav
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Vs. State of Bihar & Ors.2 has dealt with concept of natural
justice in detail and has observed that if a statute confers drastic
power it goes without saying that such powers must be exercised
in a proper and fair manner and further that drastic substantive
laws can be suffered only if they are fairly and reasonably applied
and that the rules of natural justice have been devised for
ensuring fairness and promoting satisfactory decision-making.
Paragraph 6 of the report in Dr. Rash Lal Yadav (supra) is
extracted hereinbelow:
"6. The concept of natural justice is not a static one but is an
ever expanding concept. In the initial stages it was thought that it had
only two elements, namely, (i) no one shall be a judge in his own cause
and (ii) no one shall be condemned unheard. With the passage of time
a third element was introduced, namely, of procedural reasonableness
because the main objective of the requirement of rule of natural justice
is to promote justice and prevent its miscarriage. Therefore, when the
legislature confers power in the State Government to be exercised in
certain circumstances or eventualities, it would be right to presume that
the legislature intends that the said power be exercised in the manner
envisaged by the statute. If the statute confers drastic powers it goes
without saying that such powers must be exercised in a proper and fair
manner. Drastic substantive laws can be suffered only if they are fairly
and reasonably applied. In order to ensure fair and reasonable
application of such laws courts have, over a period of time, devised
rules of fair procedure to avoid arbitrary exercise of such powers. True
it is, the rules of natural justice operate as checks on the freedom of
administrative action and often prove time-consuming but that is the
price one has to pay to ensure fairness in administrative action. And
this fairness can be ensured by adherence to the expanded notion of
rule of natural justice. Therefore, where a statute confers wide powers
on an administrative authority coupled with wide discretion, the
possibility of its arbitrary use can be controlled or checked by insisting
on their being exercised in a manner which can be said to be
procedurally fair. Rules of natural justice are, therefore, devised for
ensuring fairness and promoting satisfactory decision-making. Where
(1994) 5 SCC 267
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the statute is silent and a contrary intention cannot be implied the
requirement of the applicability of the rule of natural justice is read into
it to ensure fairness and to protect the action from the charge of
arbitrariness. Natural justice has thus secured a foothold to supplement
enacted law by operating as an implied mandatory requirement thereby
protecting it from the vice of arbitrariness. Courts presume this
requirement in all its width as implied unless the enactment supplies
indications to the contrary as in the present case. This Court in A.K.
Kraipak v. Union of India [(1969) 2 SCC 262 : AIR 1970 SC 150 :
(1970) 1 SCR 457] after referring to the observations in State of
Orissa v. Dr (Miss) Binapani Dei [(1967) 2 SCR 625 : AIR 1967 SC
1269] observed as under : (SCC p. 272, para 20)
"The aim of the rules of natural justice is to secure justice or to put it
negatively to prevent miscarriage of justice. These rules can operate
only in areas not covered by any law validly made. In other words they
do not supplant the law of the land but supplement it."
These observations make it clear that if the statute, expressly or by
necessary implication omits the application of the rule of natural justice,
the statute will not be invalidated for this omission on the ground of
arbitrariness."
Hon'ble Supreme Court in Dr. Rash Lal Yadav (supra) has
concluded that unless the law expressly or by necessary
implication excludes the application of the rule of natural justice,
Courts will read the said requirement in enactments that are silent
and insist on its application even in cases of administrative action
having civil consequences. Paragraph 9 of the judgment in the
case of Dr. Rash Lal Yadav (supra) is extracted hereinbelow:
"9. What emerges from the above discussion is that unless the law
expressly or by necessary implication excludes the application of the
rule of natural justice, courts will read the said requirement in
enactments that are silent and insist on its application even in cases of
administrative action having civil consequences. However, in this case,
the High Court has, having regard to the legislative history, concluded
that the deliberate omission of the proviso that existed in sub-section
(7) of Section 10 of the Ordinance (1980) while re-enacting the said
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sub-section in the Act, unmistakably reveals the legislature's
intendment to exclude the rule of giving an opportunity to be heard
before the exercise of power of removal. The legislative history leaves
nothing to doubt that the legislature did not expect the State
Government to seek the incumbent's explanation before exercising the
power of removal under the said provision. We are in complete
agreement with the High Court's view in this behalf."
26. Thus, what has been held by Hon'ble Supreme Court in Dr.
Rash Lal Yadav (supra) is that unless the Legislature, while
enacting a statute deliberately intends to exclude the rule of giving
opportunity to be heard, the Court will read such requirement in
such enactments which are silent and insist on application of such
rule in cases of administrative action having civil consequences.
Though so far as the Statute under consideration in the said
judgment is concerned, Hon'ble Supreme Court analyzed the facts
of the said case and held that legislative history leaves nothing to
doubt that the legislature in the said case did not expect the State
Government to seek incumbent's explanation before exercising
the power of removal, however, so far as the principle laid down
in the said judgment is concerned, it is abundantly clear that
unless a statute expressly or by necessary implication excludes
the application of rule of natural justice, the Courts need to read
such requirement in the Statute which are silent and should insist
on application of principles of natural justice in a situation
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resultant in some severe consequence.
27. In Mangilal Vs. State of M.P.3, the Hon'ble Supreme Court
has also clearly held that even if a statute is silent and there are
no positive words in the Act or the Rules made thereunder
providing for observance of principles of natural justice, there
could be nothing wrong in spelling out the need to hear the parties
whose rights and interest are likely to be affected. In this case
Section 357 of the Cr.P.C. was under consideration which provided
that when a Court imposes sentence or fine or sentence of which
fine forms part the Court may, when passing judgment, order the
whole or any part of the fine recovered to be applied for in certain
proceedings.
The Court considered the question in the said case as to
whether it was required to hear the accused before fixing the
quantum of compensation.
Section 357(3) empowers the Court while imposing sentence
of which fine does not form a part, to order the accused person to
pay such amount as may be specified, by way of compensation to
the person who has suffered any loss or injury. Sub Section 4 of
(2004) 2 SCC 447
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Section 357 confers such powers available to the appellate Court,
to the High Court and also the Court of Sessions while exercising
its powers of revision. Though Section 357(3) does not specifically
provide for providing opportunity of hearing to the accused before
passing the order quantifying the compensation, however, Hon'ble
Supreme Court held that even in absence of any express
provision, opportunity has to be granted by the Court concerned
before directing payment of compensation under Section 357(4)
of the Cr.P.C. Paragraph 10 of the judgment in the case of
Mangilal Vs. State of M.P. (supra) is extracted hereinbelow:
"10. Even if a statute is silent and there are no positive words in the
Act or the Rules made thereunder, there could be nothing wrong in
spelling out the need to hear the parties whose rights and interest are
likely to be affected by the orders that may be passed, and making it a
requirement to follow a fair procedure before taking a decision, unless
the statute provides otherwise. The principles of natural justice must be
read into unoccupied interstices of the statute, unless there is a clear
mandate to the contrary. No form or procedure should ever be
permitted to exclude the presentation of a litigant's defence or stand.
Even in the absence of a provision in procedural laws, power inheres in
every tribunal/court of a judicial or quasi-judicial character, to adopt
modalities necessary to achieve requirements of natural justice and fair
play to ensure better and proper discharge of their duties. Procedure is
mainly grounded on the principles of natural justice irrespective of the
extent of its application by express provision in that regard in a given
situation. It has always been a cherished principle. Where the statute
is silent about the observance of the principles of natural justice, such
statutory silence is taken to imply compliance with the principles of
natural justice where substantial rights of parties are considerably
affected. The application of natural justice becomes presumptive,
unless found excluded by express words of statute or necessary
intendment. (See Swadeshi Cotton Mills v. Union of India [(1981) 1
SCC 664 : AIR 1981 SC 818] .) Its aim is to secure justice or to prevent
miscarriage of justice. Principles of natural justice do not supplant the
law, but supplement it. These rules operate only in areas not covered
by any law validly made. They are a means to an end and not an end
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in themselves. The principles of natural justice have many facets. Two
of them are : notice of the case to be met, and opportunity to explain."
28. Recognizing the doctrine that principles of natural justice are
not to be construed in a straight-jacket formula, Hon'ble Supreme
Court in Dilip B. Jiwrajka Vs. Union of India & Ors. 4, has
observed that nature of natural justice is liable to vary with the
exigencies of the situation and that it may extend to a fully-
fledged hearing in a given situation and in another situation,
principles of natural justice may require that bare minimum
opportunity should be given to the individual who is liable to be
affected by an action, to furnish an explanation to the allegations
or the nature of inquiry. Paragraph 64 of the report in the case of
Dilip B. Jiwrajka (supra), runs as under:
"64. At the same time, it needs to be noted that the principles of
natural justice are not to be construed in a straitjacket. The nature of
natural justice is liable to vary with the exigencies of the situation. In a
given situation, it may extend to a fully-fledged evidentiary hearing
while, on the other hand, the principles of natural justice may require
that a bare minimum opportunity should be given to an individual who
is liable to be affected by an action, to furnish an explanation to the
allegations or the nature of the enquiry."
29. Referring to Mangilal (supra) Hon'ble Supreme Court in
Aureliano Fernandes Vs. State of Goa and Ors. 5, has held
(2024) 5 SCC 435
(2024) 1 SCC 632
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that even if a statute is silent and there are no positive words in
the Act or Rules, principles of natural justice must be observed in
certain situations.
30. Thus, the doctrine that even if a statute or statutory rules
are silent, principles of natural justice are to be adhered to, has
been applied in the context of service law by Hon'ble Supreme
Court in Aureliano Fernandes (supra). The Hon'ble Supreme
Court in Aureliano Fernandes (supra) has also held that the
Courts, while interpreting the statutory provisions shall proceed
on a premise that no statutory authority would violate the
fundamental rights and when it comes to the judicial or quasi-
judicial authorities, the rule of audi alteram partem applies with
full force. Paragraph 44 of the judgment in the case of Aureliano
Fernandes (supra) is quoted hereunder:
"44. In the context of service law, it is, therefore mandatory to afford
a government servant or an employee, a reasonable opportunity of
being heard before an order is passed. In Mangilal v. State of
M.P. [Mangilal v. State of M.P., (2004) 2 SCC 447 : 2004 SCC (Cri)
1085] , this Court declared that even if a statute is silent and there are
no positive words in the Act or the Rules made thereunder, principles
of natural justice must be observed. This is what the Court has held :
(SCC p. 454, para 10)"
"10. ... Where the statute is silent about the observance of the
principles of natural justice, such statutory silence is taken to
imply compliance with the principles of natural justice where
substantial rights of parties are considerably affected. The
application of natural justice becomes presumptive, unless found
excluded by express words of statute or necessary intendment.
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(See Swadeshi Cotton Mills v. Union of India [Swadeshi Cotton
Mills v. Union of India, (1981) 1 SCC 664] ) Its aim is to secure
justice or to prevent miscarriage of justice. Principles of natural
justice do not supplant the law, but supplement it. These rules
operate only in areas not covered by any law validly made. They
are a means to an end and not an end in themselves."
31. From the aforesaid discussion, what is apparent is that in a
given situation, the Court can interpret a statutory provision to
intrinsically contain the requirement of observance of principles of
natural justice even if such a statute or statutory rule does not
contain any positive word prescribing the same or is silent about
it.
32. When we examine Section 40 of the Act of 1966, what we
find is that the said provision in itself mandates that the principles
of natural justice need to be observed before taking as drastic a
decision as dissolution of the elected Council. As already observed
above, there cannot be any straight-jacket formula where the
principles of natural justice can be said to fit-in every
circumstance. The manner in which the principles of natural
justice are to be observed by giving opportunity of hearing against
the intended action to the party which is likely to suffer adverse
civil consequences, depends on the nature of action proposed and
to ensure fairness in such action.
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33. We have already discussed the scheme as contained in
Section 40 of the Act of 1966 according to which the first step to
exercise the powers under Section 40 is that the State has to
notify the particulars of failure, excess, abuse or incapacity of the
council. The second step to be followed, in our opinion while
taking recourse to Section 40 of the Act of 1966 by the State
Government is to communicate or intimate the Council a time
frame within which the Council needs to remedy the alleged failure
or excess or abuse or incapacity and it is only in a case where
within the time frame prescribed by the State Government the
Council fails to remedy the reported failure or excess or abuse or
incapacity, that may lead the State Government to take the
decision for its dissolution.
34. Once the provision contained in Section 40 provides that the
instances of failure or excess or incapacity at the end of the
Council are to be notified to it and Council has to be given
opportunity to remedy such alleged failure, excess, abuse or
incapacity, in our opinion, if the State Government, before taking
the decision to dissolve the Council notifies the particulars of
failure and excess or abuse or incapacity and provides time frame
for the Council to remedy the same, the requirement of
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observance of principles of natural justice intrinsically exist in
Section 40 of the Act of 1966. Our conclusion, on the basis of the
aforesaid discussion, thus, is that though Section 40 of the Act of
1966 does not contain any positive words, requiring the State to
give opportunity of hearing to the Council before a decision of
dissolution is taken, however, the scheme as contained in Section
40(1) is such that it contains the requirement of observance of
principles of natural justice, firstly; by notifying the particulars of
alleged failure, excess, abuse or incapacity on the part of the
Council and, secondly; by providing a time frame giving
opportunity to the Council to remedy such alleged failure, excess,
abuse or incapacity and therefore, giving opportunity to the
Council to furnish explanation as to why it may note be dissolved.
35. Having discussed as above, what we now need to examine
is as to whether the procedure as provided for in Section 40(1) of
the Act of 1966 before issuing the impugned Notification
dissolving the Council in the instant case has been followed or not.
36. Though learned Senior Advocate representing the State of
Maharashtra has taken the Court to various communications and
correspondences made by the State Government to the Council to
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lay emphasis that the procedure as prescribed under Section 40
of the Act of 1966 has been followed, however, we find that none
of such correspondences or communications ever communicated
or gave any time in terms of Section 40 of the Act of 1966
requiring the Council to remedy the alleged irregularity/ excess/
failure/ abuse/ incapacity etc.
37. In this regard, reference was made by the learned Counsel
representing respondent No.1 to the communication, dated 7th
November 2022 addressed to the President of the Council
whereby it was informed to the Council that the charge of the post
of In-charge Registrar has been removed from Smt. Rachel
George and has been given to Mrs. Swati Bhalerao without
approval of the State Government as required under Sections
15(1), 15(3) and 15(4) of the Act of 1966, which was illegal.
Paragraph 3 of the said communication, dated 7th November 2022
though states that the action should be taken in accordance with
the order of the Government and matter may be reported to the
Government, however, said communication does not prescribe
any time limit for remedy such alleged illegality which cannot be
said to be in conformity with the provisions of Section 40(1) of the
Act of 1966.
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38. Our attention has also been drawn to another
communication, dated 4th November 2022 made by the State
Government to the President of the Council, whereby it was
informed to the Council that Mrs. Swati Bhalerao was appointed
as In-charge Registrar (Additional Charge) without prior approval
of the Government as per the requirement of Section 15(3) of the
Act of 1966 and accordingly, it be noted that the
decision/operation of Additional Charge of Mrs. Swati Bhalerao on
the post of Registrar was not valid. Said communication made by
the State Government though notified the alleged
irregularity/lapse or failure on the part of the Council, however, it
also did not prescribe any time period within which the reported
irregularity was to be remedied by the Council. Accordingly, we
are of the opinion that even this communication, dated 4th
November 2022 does not fulfill the requirement of granting time
to the Council to rectify the irregularity or remedy the alleged
excess, failure, abuse or incapacity at the end of the Council.
39. We have also been taken through the communication of the
State Government made to the Registrar of the Council, dated 29th
December 2022, wherein the recruitment process initiated for
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appointment to the post of Registrar of the Council was cancelled.
The Government, though required a report in this regard after
taking action however, the communication dated 29 th December
2022 also did not prescribe the time period within which the said
reported irregularity was to be remedied. This communication,
thus, is also not as per the requirement of Section 40(1) of the
Act of 1966. Our attention has also been drawn to other such
communications, however, in all such communications, though
alleged lapse or irregularity or abuse or excess has been notified,
however, said communications did not fix any time frame to
remedy such irregularities, whereas, Section 40(1) of the Act of
1966, in no uncertain terms, mandates that time frame has to be
communicated to the Council by the State Government which has
to be reasonable and needs to be fixed by the State Government,
for remedying the reported lapse.
40. We are also of the opinion that since the impugned action of
dissolving the elected Council is such a radical action whereby an
elected body has been dissolved and in its place an Arbitrator has
been appointed, therefore, it was incumbent upon the State
Government to give an opportunity to the Council, before taking
the decision, of tendering its dissolution of explanation as to why,
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because of the alleged lapses or irregularities, the Council may
not be dissolved.
41. Dissolution of an elected body, like in the present case, is
drastic in its true nature. Such an action clearly amounts to
annulling a body which is elected by the electorates as per the
prescriptions available in an Act of State Legislature i.e. Act of
1966. Dissolution of such an elected body results in removal of
the elected persons and accordingly, the action of dissolution is
extreme, serious and radical which results in far reaching
consequences. For this reason alone, we are of the opinion that
before taking decision to dissolve the Council, in accordance with
the requirement of observance of the principles of natural justice
an opportunity to explain as to why the Council may not be
dissolved because of the already notified failure/excess/incapacity
on the part of the Council which stood unremedied, ought to have
been given to the Council and having not done so, in our opinion,
the State Government has clearly erred in law which renders the
impugned Notification, dated 5th July 2023 dissolving the Council
as illegal and unsustainable.
42. Our attention was also drawn to the National Nursing and
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Midwifery Commission Act, 2023 enacted by the Parliament as Act
No.26 of 2023 which has been published in the official gazette of
Government of India on 12th August 2023. It has been argued on
the basis of the Act No.26 of 2023 by the learned Senior Advocate
representing the State that Section 23 of the said Act mandates
that every State Government, within one year from the
commencement of the Act, shall constitute a State Nursing and
Midwifery Commission, where no such State Commission exists in
that State by a State Law, for exercising such powers and
discharging such duties as may be laid down under the Act No.26
of 2023. Mr. Sapkal, learned Senior Advocate representing the
State has, thus, argued that since Act No.26 of 2023 has been
published in the Official Gazette on 12th August 2023, as such,
now the State Government will have to constitute a State Nursing
and Midwifery Commission under Section 23 of the Act No.26 of
2023 and therefore, the Council as elected under the Act of 1966
will no longer be required to be constituted.
43. We may note that in terms of the provisions contained in sub
Section 2 of Section 1 of Act of 26 of 2023, the said Act shall come
into force on such date as the Central Government may, by
notification in the Official Gazette, appoint. On a specific query
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made as to whether Notification under Section 1(2) of the Act
No.26 of 2023 has been issued, Mr.Girase, learned Government
Pleader on instructions has stated that till date neither the
National Nursing Midwifery Commission has been constituted
under Section 23 of the Act 26 of 2023 nor Notification under
Section 1(2) has been published. Mr.Girase has produced before
the Court a communication, dated 28th August 2023 from the
Government of India, Ministry of Health and Family Welfare to the
Principal Secretary (Health), Secretary, Medical Education of all
the States and Union Territories wherein it has been stated that
the Ministry in the Central Government is in process to frame rules
and has invited the State Governments and the Government of
Union Territories to provide their comments to improve framing of
rules. Thus, the submissions based on Act No.26 of 2023 by the
learned State Counsel does not bear any credence for the same
reason that the Notification as per the requirement of Section 1(2)
has yet not been published and hence, the said Act has not even
come into force till date.
(E) Conclusion:
44. For the reasons given and discussion made above, we,
without any ambiguity, conclude that the impugned Notification
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dated 5th July 2023 issued by the State Government, whereby the
Council has been dissolved, is completely illegal and therefore,
deserves to be quashed.
45. Resultantly, the writ petition is allowed.
46. The impugned Notification, dated 5th July 2023 issued by the
State Government dissolving the Council is hereby quashed. The
elected Council shall, accordingly, be restored forthwith.
47. It will, however, be open to the State Government to
proceed in accordance with law keeping in mind the observations
made in the preceding paragraphs of this judgment.
48. There will be, however, no order as to costs.
49. Interim application(s), if any, also stand disposed of.
(KISHORE C. SANT, J.) (CHIEF JUSTICE)
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