Bombay High Court
Anil Harishchandra Kadu vs The Additional Commissioner, ... on 19 December, 2014
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6590 OF 2013
PETITIONER: Anil Harishchandra Kadu, Aged about
52 years, Occ:Service as
Teacher/Supervisor, R/o Ghamodia
Plot, near Cotton Market, Amravati
Road, Paratwada-444805, Tq.
Achalpur, District:Amravati.
-VERSUS-
RESPONDENTS: ig 1. The Additional Commissioner,
Amravati Division, Amravati.
2. Municipal Council, Achalpur, through
its Chief Officer, Achalpur, Tq.
Achalpur, District: Amravati.
Shri A. S. Kilor, Advocate for the petitioner.
Shri P. V. Bhoyar, Asstt. Government Pleader for respondent No.1.
Shri Amol Patil, Advocate for respondent No.2.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 26-09-2014
DATE ON WHICH JUDGMENT IS PRONOUNCED: 19-12-2014
ORAL JUDGMENT :
1. 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
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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
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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
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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
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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
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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 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 bye-
laws), it was submitted that under bye-law 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
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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 bye-law
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
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stage, it would be necessary to refer to the said bye-laws 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 the petitioner to undertake newspaper journalism.
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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 put-forth 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.
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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
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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
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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
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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
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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 (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
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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.
JUDGE
//MULEY//
