2015(3) ALL MR 143
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A. S. CHANDURKAR, J.

Anil Harishchandra Kadu Vs. The Additional Commissioner, Amravati Division & Anr.

Writ Petition No.6590 of 2013

19th December, 2014.

Petitioner Counsel: Shri. A.S. KILOR
Respondent Counsel: Shri P.V. BHOYAR, Shri AMOL PATIL

Constitution of India, Art.19(1)(a) - Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (1965), S.318 - Achalpur Municipal Council (Regulation of Grant of Subsistence Allowance to Offices and Servants under Suspension) Bye-Laws (1979), Bye-Law No.9 - Natural justice - Breach of - Assistant Teacher granted permission to undertake newspaper journalism - Condition that teaching duties should not be affected - Complaints, report of Head Master called - Standing Committee placing matter before General Body - Teacher not attending General Body meeting inspite of notice - Order cancelling permission on ground that teachers duties were affected - Held, not illegal - Right under Art.19(1)(a) of Constitution not violated. AIR 1993 SC 171, 2009 ALL SCR (O.C.C.) 193 Ref. to. (Paras 13, 16, 18)

Cases Cited:
Life Insurance Corporation of India Vs. Prof. Manubhai D. Shah, AIR 1993 SC 171 [Para 7,18]
Indian Express Newspapers Pvt. Ltd. Vs. Union of India and Ors., 2009 ALL SCR (O.C.C.) 193=AIR 1986 SC 515 [Para 7,18]


JUDGMENT

JUDGMENT :- Rule. Heard finally with the consent of the learned Counsel for the parties.

2. This writ petition takes exception to the order dated 30-8-2013 passed by respondent No.2 thereby dismissing the appeal preferred by the petitioner under provisions of Section 318 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short the said Act). Said appeal had been preferred by the petitioner challenging communication dated 7-9-2012 issued by respondent No.2 - Chief Officer whereby the petitioner was informed that the permission granted to him to undertake newspaper reporting had been cancelled.

3. The petitioner is employed as an Assistant Teacher with the respondent No.2 - Municipal Council. According to the petitioner, he was interested in journalism. He, therefore, initially sought permission from the Municipal Council to undertake newspaper journalism by application dated 28-11-1989.The Municipal Council through its Chief Officer granted permission to the petitioner to undertake newspaper journalism subject to the condition that the same should not affect his duties as Assistant Teacher. By communication dated 10-4-1991, aforesaid permission was granted on the condition that if the work of teaching would be adversely affected, then the said permission would be revoked. On 21-1-1992, the petitioner was informed that in terms of the resolution passed by the Education Committee of the Municipal Council, he should discontinue the work of newspaper journalism. However, the petitioner again made a fresh application for such permission on 14-2-1992 and the Standing Committee of the Municipal Council passed a resolution on 13-2-1993 permitting the petitioner to undertake newspaper journalism on the condition that the work in the School should not be affected and that news items in relation to political affairs should not be published. Accordingly, the Chief Officer by communication dated 22-3-1993 informed the petitioner about grant of permission as aforesaid.

4. According to the petitioner, he continued to pursue newspaper journalism without the same affecting his teaching work. This situation continued for almost 10 years. According to the petitioner, on account of certain news items published by him, a Councilor by name Pawan Bundele made a complaint to the Chief Officer of the Municipal Council that the petitioner was misusing the permission granted to him in the matter of newspaper journalism and hence, such permission should be cancelled. The Chief Officer, therefore, submitted a report to the Municipal Council on 11-6-2012 in which it was stated that there was grave likelihood of the petitioner's work as Assistant Teacher being affected by newspaper journalism. On 10-8-2012, the Municipal Council issued a notice to the petitioner in which he was informed that a General Body meeting of the Municipal Council was scheduled on 14-8-2012 in which the General Body would consider the request received from about 28 Councilors to cancel the permission granted to the petitioner to undertake newspaper journalism. The petitioner was, therefore, called upon to remain present in said General Body meeting. This notice was received by the petitioner on 11-8-2012.

5. On 14-8-2012 in the General Body Meeting of the Municipal Council, Resolution No.28 was proposed by a Councilor Shri Pawan Bundele in which it is stated that the petitioner was misusing aforesaid permission and on account of said activities, the students of the concerned School were suffering. Another Councilor submitted in the meeting that if the petitioner was present, he should be heard in the matter. On such suggestion, yet another Councilor submitted that as the petitioner was an employee of the Municipal Council, he was bound by the decision taken by the Municipal Council and hence, there was no question of granting any opportunity of hearing to the petitioner. The Presiding Officer thereafter closed aforesaid subject and the resolution cancelling the permission granted to the petitioner for undertaking newspaper journalism was passed by majority. In view of said resolution, the Chief Officer issued the impugned communication dated 7-9-2012 to the petitioner informing him about aforesaid resolution.

6. The petitioner being aggrieved by aforesaid resolution and the consequent communication dated 7-9-2012 order preferred appeal under Section 318 of the said Act before respondent No.1. Various grounds including breach of principles of natural justice were raised in said appeal. The Municipal Council through its Chief Officer opposed aforesaid appeal. The Additional Commissioner by order dated 30-8-2013 held that the petitioner was an employee of the Municipal Council and permission to undertake newspaper journalism had been granted subject to certain conditions. As it was found that the petitioner had breached said conditions, the Municipal Council was justified in passing said resolution and revoking the permission. He, therefore, upheld the action of the Municipal Council and dismissed the appeal preferred by the petitioner. This order is the subject matter of challenge in the present writ petition.

7. Shri A. S. Kilor, the learned Counsel appearing for the petitioner submitted that the Municipal Council was not justified in revoking the permission that had been granted to the petitioner to undertake newspaper journalism. He submitted that said permission was granted on the condition that the petitioner's duties as Assistant Teacher should not be affected. No memorandum had been issued to the petitioner that on account of the work of journalism, his duties as Assistant Teacher were not being properly discharged. He submitted that it was open for the Municipal Council to take action against him if the petitioner was found wanting in the discharge of his duties as Assistant Teacher. However, without initiating any such action, the Municipal Council proceeded to accept the allegations made in the complaint against the petitioner and cancelled the permission. The learned Counsel further submitted that no sufficient opportunity was granted to the petitioner in response to the notice dated 10-8-2012. He submitted that minutes of the General Body Meeting dated 14-8-2012 clearly reflected that the action of the Municipal through its Councilors was arbitrary. Relying upon decision of the Supreme Court in Life Insurance Corporation of India Vs. Prof. Manubhai D. Shah AIR 1993 SC 171, it was urged that under Article 19(1) (a) of the Constitution of India, the petitioner had freedom of speech and expression and hence, he could not have been prevented from exercising said fundamental right. Reliance was also placed on another decision of the Supreme Court in Indian Express Newspapers Pvt. Ltd. Vs. Union of India and others, AIR 1986 SC 515 : [2009 ALL SCR (O.C.C.) 193] to submit that it was the primary duty of all Courts to uphold the freedom granted to express one's opinion and that the administrative actions which interfere with such freedom should be invalidated. Relying upon the provisions of the Achalpur Municipal Council (Regulation of Grant of Subsistence Allowance to Offices and Servants under suspension) Bye-Laws 1979 (for short, the said byelaws), it was submitted that under byelaw No.9, it was necessary to grant opportunity to the petitioner before withdrawing the permission granted to undertake the work of newspaper journalism. He, therefore, submitted that the impugned action could not be sustained and the same deserves to be set aside.

8. Shri A. B. Patil, the learned Counsel appearing for the respondent No.2 - Municipal Council on the other hand supported the impugned actions. He submitted that the petitioner who had been granted permission to undertake newspaper journalism had been misusing the said liberty. Various complaints had been received that the petitioner had not been properly discharging his duties as Assistant Teacher due to the work of journalism. He submitted that the petitioner being an employee of the Municipal Council, he was bound by the decision taken by the Municipal Council in the interest of its administration. He further submitted that by issuing notice dated 10-8-2012,sufficient opportunity was granted to the petitioner to put forth his case by remaining present before the General Body on 14-8-2012. However, the petitioner did not avail said opportunity and hence, he could not now be heard in that regard. He further submitted that such opportunity had been given to the petitioner under byelaw No.9 of the said Bye-laws.He further submitted that the Additional Commissioner in the appeal had considered all these aspects and had found that the action taken by the Municipal Council was not contrary to law.

Shri P. V. Bhoyar, the learned Assistant Government Pleader appearing for respondent No.1 also supported the impugned order. He relied upon affidavit dated 7-5-2014 filed on behalf of respondent No.1.

9. Having heard the respective Counsel and after having given due consideration to the submission as made and the law in that regard, in my view, the petitioner is not entitled to relief. The permission granted to the petitioner on 22-3-1993 specifically records that the same was being granted on the condition that the petitioner's duties as Assistant Teacher would not be affected, no exemption of any kind would be granted to the petitioner and no news items maligning the Municipal Council or connected with politics should be reported. On the basis of aforesaid permission, the petitioner started the work of newspaper journalism which continued for almost 10 years. At this stage, it would be necessary to refer to the said byelaws adopted by the Municipal Council. As per bye-law No.9, there is prohibition for any officer or his servant of the Council to own or conduct any newspaper or periodical publication or participate in work of editing. However, the Council can permit any officer or servant to participate in editing work and if such permission is to be withdrawn, the same can be done after giving due opportunity to the concerned officer or servant.

10. As noted above, a complaint was submitted by about 28 Councilors to the Chief Officer making a grievance that the permission granted to the petitioner should be cancelled as the petitioner was not discharging his duties properly and that he was misusing aforesaid permission to serve his own interests. Pursuant to said complaint, the Chief Officer called upon the Headmaster of the concerned School to submit a report in that regard. Accordingly, the Headmaster submitted his report on 30-5-2012 to the Chief Officer. The matter was thereafter considered by the Standing Committee in its meeting held on 12-7-2012. It was resolved by the Standing Committee that the matter be placed before the General Body for its consideration. It was also resolved that due opportunity should be given to the Headmaster and the petitioner to put forth their case before the General Body. Accordingly, on 10-8-2012, the Chief Officer issued a notice to the petitioner calling upon him to remain present before the General Body on 14-8-2012 when the General Body was to discuss the issue as regards cancelling the permission granted to petitioner to undertake newspaper journalism.

11. The General Body of the Municipal Council held its meeting on 14-8-2012 in which proposal No.28 was taken up for discussion. During course of said discussion, it was informed that 31 members had submitted a statement in which they had given their consent for cancelling the permission that was granted to the petitioner for undertaking newspaper journalism. While said proposal was being passed by voice vote, one Councillor stated at that point of time that if the petitioner was present in the meeting, he should be heard in the matter. On such request being made, another Councilor stated that the petitioner was an employee of the Municipal Council and hence, it was for the Municipal Council to decide whether to grant permission to the petitioner or not. There was no question of hearing the petitioner in that regard. Thereafter the Presiding Officer requested both the members to sit down and closed the discussion. Thereafter, an unanimous resolution was passed cancelling the permission granted to the petitioner to undertake newspaper journalism on the ground that the same was affecting his teaching duties. Pursuant to said resolution, the petitioner was informed by the Chief Officer about cancellation of such permission.

12. In this backdrop, it is necessary to consider two aspects of the matter. Firstly, whether the petitioner was granted any proper opportunity to putforth his case before a decision was taken cancelling the permission granted earlier to undertake newspaper journalism and secondly, whether the case of the petitioner has been fairly considered by the Municipal Council before revoking the permission granted earlier.

According to the petitioner, he was not granted due opportunity to put forth his case before revoking the permission granted earlier. It is his case that while granting permission to undertake newspaper journalism it had been stipulated that same should not affect his teaching duties and that no news items maligning the Municipal Council or related to politics should be published. As stated above, after receiving a grievance from about 28 Councilors, the Chief Officer had called upon the Headmaster of the concerned School to submit his report. After said report was submitted, the matter was considered by the Standing Committee which, in turn, decided that the same should be placed before the General Body for consideration. The Standing Committee had noted that due opportunity should be given to the petitioner. It is thereafter that a notice was issued to the petitioner on 10-8-2012 calling upon him to submit his say in the meeting of the General Body that was to be held on 14-8-2012. This notice was received by the petitioner on 11-8-2012.

13. It is, therefore, clear that by issuing notice dated 10-8-2012 to the petitioner, the Municipal Council had sought his say in the matter. The petitioner, however, did not respond to the aforesaid notice, and did not remain present in the meeting of the General Body on 14-8-2012. It was open for the petitioner to have denied the allegations made against him. He, however, chose not to respond to the notice dated 10-8-2012 and did not attend the General Body meeting. It is, therefore, clear that proper opportunity was provided to the petitioner to put forth his say in the matter of cancellation of the permission granted earlier. Hence, said submission made on behalf of the petitioner that no opportunity whatsoever was granted to him cannot be accepted.

14. It would now be necessary to consider the effect of grant of permission to undertake newspaper journalism. The petitioner was in employment of the Municipal Council and hence, it was necessary for him to seek its permission for undertaking newspaper journalism. By virtue of such permission, a privilege was granted to the petitioner to undertake newspaper journalism. The same was, however, subject to the condition that it would not affect his teaching duties and that he would not be entitled to claim any relaxation from such duties. Thus, what was otherwise not permissible to be done without permission of the Municipal Council was permitted to be done by grant of such permission. It can, therefore, be said that such permission was in the nature of a privilege granted to the petitioner. A "privilege" means legal freedom on the part of one person as against another to do a given act or a legal freedom not to do a certain act. Hence, by virtue of permission granted to the petitioner on 22-3-1993, he had the privilege of undertaking newspaper journalism which privilege was not available to any other employee of the Municipal Council without such permission. In this background, the right of the petitioner would have to be considered.

15. The issue, therefore, that requires consideration is whether the Municipal Council was justified in revoking permission on the ground that by undertaking newspaper journalism, his teaching duties were being affected. The notice that was issued to the petitioner was based on the complaint received from about 28 Councillors dated 2-5-2012 which reveals that a grievance had been made that the petitioner had not been discharging his duties as Assistant Teacher properly. It was stated that the petitioner was irregular in attending his duties. When the matter was considered by the Standing Committee, it decided to place the same before the General Body and also to give opportunity to the petitioner to put forth his case. Resolution No.28 as passed indicates that it was passed by observing that the petitioner was not discharging his duties properly and hence, there being breach of conditions while granting permission, the same was being cancelled.

16. In matters of such nature the test to be applied is whether the decision making process has been fair and proper. The question is not as regards correctness of the decision itself but about fairness of the decision making process. It is seen from the record that after complaint dated 2-5-2012 was received, the Chief Officer had called for a report from the Headmaster of the concerned School. Accordingly, the Headmaster submitted his detailed report. He, therefore, opined that it would be in the interests of students and other staff members if the petitioner kept aside his activities as a newspaper journalist and concentrated more on his teaching duties. This report was thereafter placed before the Standing Committee. The Standing Committee thereafter resolved to place the matter before the General Body and accorded opportunity to the petitioner to give his say by remaining present before the General Body. Thereafter, notice dated 10-8-2012 was issued on behalf of the Municipal Council which was received by the petitioner on 11-8-2012. It is, therefore, clear from the aforesaid that the Municipal Council had initially obtained a report from the concerned Headmaster. Said report was thereafter placed before the Standing Committee and then the matter was placed before the General Body. Thus, it cannot be said that the Municipal Council had acted arbitrarily in proceeding against the petitioner. It was open for the petitioner to have remained present before the General Body to put forth his say. It was also open for the petitioner to have sought further details as regards the basis on which the permission granted earlier was sought to be cancelled. The petitioner, however, chose not to remain present before the General Body. Hence, an opportunity available to the petitioner was not availed by him. Viewed thus, it cannot be said that the Municipal Council had not acted fairly before considering the issue as regards cancellation of permission granted to the petitioner.

17. The learned Counsel for the petitioner criticized the manner in which the resolution No.28 came to be passed by the General Body of the Municipal Council. According to him, without considering the relevant aspects, the permission came to be cancelled. The petitioner himself having chosen not to remain present before the General Body, he cannot be heard to say that the resolution was passed in a hasty manner. The minutes of said meeting may indicate that there was no detailed discussion on said subject. However, considering the fact that substantial material in the form of report of the Headmaster and its consideration by the Standing Committee was available with the General Body coupled with the fact that the petitioner did not choose to respond to the notice issued to him, it cannot be said that aforesaid action on the part of the Municipal Council in passing said resolution was so arbitrary or unreasonable so as to set aside the same. The necessary material being available coupled with opportunity being afforded to the petitioner indicates that the resolution as passed was preceded by necessary ground work and that due opportunity was also afforded to the petitioner to put forthwith his case.

18. As regards the reliance placed by the learned Counsel for the petitioner on the decisions of the Supreme Court in Indian Express Newspaper Bombay Pvt. Ltd. (supra) and Life Insurance Corporation of India, [2009 ALL SCR (O.C.C.) 193] (supra), the fundamental right as conferred by Article 19(1)(a) of the Constitution of India is not to be lightly interfered with and the same is subject only to reasonable restrictions placed under Article 19(2) thereof. In the present case, however, the privilege that was granted to the petitioner was withdrawn as the same affected his teaching duties in the opinion of the Municipal Council. This opinion was on the basis of the report of the Headmaster. The Municipal Council acted within its powers when it withdrew the privilege conferred on the petitioner to undertake newspaper reporting as the same affected his teaching duties. The petitioner who was a servant of the Municipal Council was duty bound to satisfactorily discharge his duties. If the Municipal Council formed an opinion on the basis of material available with it that newspaper reporting was affecting the teaching duties of the petitioner, it was within its jurisdiction to withdraw the privilege conferred by it. In the present case, it can only be said that during the course of employment, the Municipal Council did not permit the petitioner to undertake newspaper journalism as the same affected his teaching duties. By doing so, it cannot be said that the Municipal Council has in any manner violated the petitioner's fundamental right conferred by Article 19(1)(a) of the Constitution of India.

19. Thus viewed, it cannot be said that the impugned action withdrawing permission is either illegal or arbitrary. The petitioner being in employment of the Municipal Council was bound to discharge his duties to the satisfaction of his master. Moreover, as a consequence of withdrawing said permission, the petitioner's entitlement to continue in employment was not under any threat. It is, therefore, merely a case of withdrawal of privilege that was conferred on the petitioner by the Municipal Council. Hence, the challenges as raised cannot be accepted. The writ petition, therefore, fails and Rule stands discharged with no order as to costs.

Petition dismissed.