1995 Supreme(Bom) 454

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
A.D. Mane S.G. Mutalik, JJ.
Baburao Vishvanath Mathpati.... Petitioner.
Versus
The State of Maharashtra, through the Secretary to Urban Development Department, and others.... Respondents.
Writ Petition Nos. 2928 3329 of 1994, decided on 20-10-1995.
Advocates appeared :
S.B. Talekar, for the petitioners in Writ Petition No. 2928 of 1994.
S.G. Sangle, for the respondent in Writ Petition No. 2928 of 1994.
V.B. Ghatge, A.G.P. for the respondents Nos. 1 to 3 in Writ Petition No. 2928 of 1994.
S.S. Choudhary, for caveator.
V.J. Dixit, for the petitioners in Writ Petition No. 3329 of 1994.
V.B. Ghatge, A.P.P., for the respondents 2 to 4.

Headnote:Section 45-A-Scope of.

       The word neglect bas been many times and variously construed by the Court. It is not a term of fixed and measured meaning by thus diverse shades of meaning in legal usage and it susceptible to a variety of significations. It takes its content always from specific circumstances and the word must be consipered in the connection in. which it is used and its meaning determined by examining the context in which it is appears. When it is employed in a statute the general purpose of the statute may control determine the meaning of the term as stated in the statutes.

       "The word neglect is defined both as a noun and as a very in terms of failure or omission to discharge or perform a duty: but one cannot be charged with failure to perform a duty unless he knows or ought to know, that there is a duty incumbent on him to be performed. However, the word may import something mare than a failure without fault; it may import an omission accompanied by some kind of culpability in the conduct of the person, and it embraces wilful as well as unintentional disregard of duty".....

       In case of neglect of duty, "the word neglect as used in the term neglect of duly means failure to perform or discharge a duty and covers positive official misdoing or official misconduct as well as negligener."

       The word neglect appears to have a different connotation than the word negligence. The word neglect as earlier said means gross neglect, wilful, intentional, culpable flagrant disregard of duties." It is mentioned earlier that the President of Municipal Council can be dislodged by resorting to the power conferred on the Counciliors by moving non-confidence motion under Section 55 of the Act for no grounds or reasons are required to be stated. The object behind this is that there should not be any stigma on the President so removed. We have also referred to Section 310 of the Act where the power is conferred on the State Government for supersession of the Municipal Council by appointing as administrator. There the word "misconduct" has been interpreted to mean "gross misconduct." Section 55-A of the Act no doubt confers ~on the State Government to remove the President on account of "misconduct neglect of duties, incapacity to perform duties and disgraceful conduct." This provision sufficiently entails civil consequences and attaches stigma to the President and therefore, in order to remove a President on these grounds the order must be founded on strong grounds. Therefore, the word "neglect" must be understood from the gravity of the charges and therefore, the word "neglect" as used in the section means "gross neglect" which may be synonymous to the word "wilful intentional or capabie as the case may be." There should be flagrant disregard of duties so as to call for removal of the President under Section 55-A of the Act. Therefore, applying the golden rule of construction of statute which has been recognised by the Apex Court, we have no hesitation to come to the conclusion to come to the conclusion that the word the neglect has a connotation as gross, wilful oe intentional neglect Here we are concerned with either gross neglect or gross statutory neglect on the part of the petitioner. We, therefore, proceed to consider the other contention of the learned Counsel in regard to the procedure to be followed when power under Section 55-A of the Act is to be exercised.

       A decision which is one which results in civil consequences is regarded as a quasi judicial decision. If the authority is empowered to take a decision which will prejudicially effect any person by such decision it will be quasi-judicial decision.

       The object of fairness or fair play is to ensure that the vast power In the modern State is not for improper purpose of misguided by extraneous or irrelevant considerations and that the statutory authority arrives at a just or reasonable decision in affecting the rights of the person.

       Keeping in view these aspects on the principles of natural justice, what has been alleged in the show-cause notice that has been reflected in the impugned order and this circumstance is sufficient justification to support the argument of the Counsel for the petitioner. It may be stated that mere reference to the part of the say of the petitioner, without reasons for its acceptance of rejection is not enough. It is mentions at appropriate stage that the petitioner has in fact explained various circumstances in answer to the various circumstances in answer to the various charges but those explanations have not been in any manner dealt with in the order. What this signifies? It merely suggests that the Minister acts in pursuance of the pre-determined policy without considering the merits of the individual case. It is well settled that non-arbitrariness would warrant compliance with the principle of natural justice when the impugned order involves civil consequences, where the authority being under an obligation to act judicially passes an order which is in violation of the principles of natural justice the same would be vitiated in law.

       In order to claim immunity from disclosure of unpublished documents, the documents must relate to affairs of the State and disclosure thereof must be against interest of the public interest. Public interest must be 50 strong as to outweigh the private or any other interest. It is not thought that the documents to which reference is made in the show cause notice constituting material for forming opinion for an action under Section 55-A of the Act can be said to be privileged documents and the respondent State Government can be said to have been justified in withholding the copies thereof from the petitioner. There does not involve any question of any document being related to the affairs of the State or disclosure thereof would be against the interest of the State or public interest. The respondents in their return as well as in the impugned order, besides aforesaid reason for withholding those documents from the petitioner stated another ground that they are either confidential correspondence or official record and petitioner was not entitled to the copies of the same. Such documents cannot be said to be documents relating to the transaction of business by the Council of Ministers in respect of affairs of the State or communication or policy decision taken at ministerial or secretariate level. An immunity from disclosure cannot, therefore, be claimed in the matter like the present.

       It cannot be disputed that every person whose right has affected must have reasonable notice of the case he has no meet. Furthermore, he must be furnished with the information upon which the action is based. It is well established proposition that the opportunity must be reasonable, What is reasonable however depends on the facts and circumstances of each case and lastly, the documents which are necessary for effective exercise of forgoing right should not be withheld from such person moreover, it cannot also be disputed that where a party cannot meet the allegations against it for which it is asked to show-cause and cannot properly meet those allegations with reference to the documents mentioned in the show-cause notice it follows that the natural justice require that the authority must furnish to the party the copies of those documents. Non supply of such documents would obviously violate the principles of natural justice.

       It is not shown in the show-cause notice that there was business to he transacted at any such meeting restricted to the matters specified in Section 81 (1) of the Act nor it has been shown that on failure of the petitioner to call an ordinary meeting within the specified period the Chief Officer made any report on failure of the petitioner, to the Collector and the Collector acted on such report or suo motu to call the ordinary meeting. There is also nothing in the show-cause notice that the Councillors made any request or complaint to the Collector in regard to the business to be transacted at general body meeting. If this were the case how it can be said that the petitioner committed breach of his duty in calling the general body meeting by virtue of the provisions contained in sub-section of Section 81 of the Act.

       Unless it is shown that there was some business to the transacted in respect of the matters specified in sub-section (1) of Section 81 of the Act, mere failure to convene such meeting would not be the neglect of duty.

       The Court in a proceeding for mandamus cannot sit as a Court of appeal or substitute its own discretion for that of the authority in which the statute has vested the discretion but in determining the reasonableness of the exercise of the powers the Court should take into account the circumstances which call for the exercise of the powers and uphold the order if there was nothing upon which the authority would have reasonably come to the conclusion.