Bombay High Court has allowed the Writ Petition challenging the validity of Dissolution of Council by the State Government; held that Principles Of Natural Justice Need to Be Observed Before Taking as Drastic a Decision as Dissolution of The Elected Council.

Bombay High Court, Aurangabad Bench has allowed the Writ Petition challenging the validity of Notification dated 5th July 2023, whereby the Maharashtra Government has dissolved the Council and appointed Dr. Anant Shingare as its Administrator. The Court has held that given that the dissolving of an elected Council is a drastic step, the State Government should have provided the Council with an opportunity to explain why it should not be dissolved due to the alleged lapses. The failure to offer such an opportunity before issuing the dissolution Notification on July 5, 2023, was a legal error, making the Notification illegal and unsustainable.

The term of the last elected Maharashtra Nursing Council ended in December 2018, but elections were delayed, prompting court intervention. The Court directed the State Government to follow the Maharashtra Nurses Act, 1966, and expedite the Council's constitution. Despite orders in December 2018 and June 2019, elections were only held in December 2021. Subsequent delays in publishing the election results led to further court orders and a contempt petition, resulting in compliance. After the petitioners were elected as President and Vice President, the State Government dissolved the Council on 5th July 2023, appointing a new Administrator.

The Bombay Court while assessing the issue of whether after notifying the particulars of failures/excess/abuse/incapacity etc. touched on the scheme of Sec. 40 has observed that the State Government can dissolve the Council only after notifying it of serious failures, excesses, or incapacity and giving it time to remedy these issues. If the Council is dissolved without this process, it would violate the provisions of Section 40.

The Division Bench placing reliance on Dr Rash Lal Yadav Vs. State of Bihar & Ors has prompted 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” and even if Section 40 of the Act doesn't explicitly grant the Council a hearing before dissolution, the principles of natural justice must be implied. The Bench has emphasised the rule laid by the Hon'ble Supreme Court in Dr. Rash Lal Yadav held that unless a law explicitly or implicitly excludes the application of natural justice, courts should interpret the requirement into silent statutes. The Court emphasised that the principles of natural justice must be applied in cases of administrative actions with civil consequences unless the Legislature intended otherwise.

The Division Bench highlighting the importance of complying with the principle of natural justice has relied on the Supreme Court decision in Mangilal Vs. State of M.P. wherein the Court held that despite Section 357(3) not explicitly requiring it, courts must provide the accused an opportunity to be heard before ordering compensation under Section 357(4) of the Cr.P.C.
The Apex court also relied on Dilip B. Jiwrajka Vs. Union of India & Ors.4 held and quoted "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."

The Bombay High Court while adjudicating the issue as to whether the procedure outlined in Section 40(1) of the Act of 1966 was properly followed before issuing the dissolution Notification has held that the communication from November 7, 2022, regarding the removal of the In-charge Registrar did not specify a time frame for remedying the alleged issue, failing to meet Section 40(1) requirements.

The Bench has also negated the arguments of the Senior Advocate for State holding that, the State's argument is based on the National Nursing and Midwifery Commission Act, 2023 (Act No. 26 of 2023), which mandates the establishment of a State Nursing and Midwifery Commission within one year, is invalid. Since, the Act has not come into force because the Central Government has not issued the required notification under Section 1(2), and the National Nursing and Midwifery Commission has not yet been constituted. Therefore, the provisions of Act No. 26 of 2023 cannot override the existing Maharashtra Nursing Council Act.

Coram: Hon'ble The Chief Justice and Justice Kishore Chandrakant Sant Between: Arun Nanasaheb Kadam and Others vs. The State Of Maharashtra, Through Principal Secretary And Others DOJ: 30.08.2024