The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 1524 of 2022 Bina Kumari Vs. … Petitioners 1.The State of Jharkhand 2.The Acting Chief Information Commissioner, Jharkhand, State Information Commission, office of Engineering Hostel No.-2, H.E.C. Parisar, Shurwa, P.O.- and P.S.-Dhurwa, District-Ranchi 3.Deva Nand Jha (Nunu) Yuwa Rastriya Janta Dall, Nagar Adhyaksh, Deoghar, P.O. and P.S.- Deoghar, District- Deoghar ---------- … Respondents CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner For the Resp.-State For the JSIC : Mr. Rama Kant Tiwari, Advocate : Mr. J. F. Toppo, G.A.-V Mr. Amrit Raj Kisku, AC to GA-V : Mr. Sanjoy Piprawall, Advocate Mr. Rakesh Ranjan, Advocate 11/ 31.10.2023 Heard the Parties. ----------- 2. The present writ petition has been filed for quashing the order dated 25.02.2020 (Annexure-4) passed by Information Commissioner, Jharkhand State Information Commission, Ranchi (hereinafter to be referred as ‘the Commission’) in Appeal Case no. 2534 of 2014, whereby and whereunder an order imposing fine of Rs. 25,000/- has been passed against the petitioner under the provision of Section 20 (1) and 21 (2) of the Right to Information Act, 2005 (hereinafter to be referred as ‘the Act, 2005’) and the same was communicated to the petitioner vide Memo dated 04.03.2020. Further prayer has been made to issue direction for recovering the same from the salary of the petitioner in five equal instalments and it was also directed to initiate disciplinary proceeding against the petitioner. 3.
Decision
The relevant facts emanating from the writ petition is that the petitioner was posted as District Superintendent of Education-cum- District Programme Officer, Bokaro-cum-Public Information Officer for the period from 6th July, 2015 to 14th September, 2018. Thereafter, she was transferred to the post of District Superintendent of Education, Deoghar on 15th September, 2018 and she joined the said post on 18th September, 2018. 4. It is the further case of the petitioner that an appeal was filed before the Public Information Commissioner-cum-Block -2- Development Officer on account of non-supply of information as sought by the respondent No. 3. Thereafter, on 10.02.2020, an order vide Memo No. 1689 was passed by the Information Commissioner fixing the date on 18.05.2020 for further hearing and for providing the documents sought for by the respondent No. 3 but the same was later on preponed to 25.02.2020 i.e. three months earlier. 5. The petitioner could not appear on 25.02.2020 due to the reason that she had to appear in WPS No. 268 of 2015 before Hon’ble Jharkhand High Court and in her place Barum Kumar, office clerk had been authorized by the Petitioner to appear in appeal case no. 2534 of 2014 vide memo no. 181 dated 24.02.2020. The respondent no. 2 after hearing the parties passed an order dated 25.02.2020, as contained in memo no. 3495 dated 04.03.2020. 6. Mr. Rama Kant Tiwari, learned counsel appearing for the petitioner submits that the impugned order dated 25.02.2020 passed by the Information Commissioner is bad in law as well as on fact. Learned counsel further argues that the impugned order dated 25.02.2020, is in contravention of the provisions laid down under Section 20 of the Right to Information Act, 2005, which provides that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed upon them. The impugned order suffers from illegality and infirmity, as the same is in teeth of sub-section (9) of Section 19 of the Right to Information Act, 2005. Learned counsel further argues that the action of the respondents is arbitrary and against the provisions enshrined under Article 14 of the Constitution inasmuch as while issuing the impugned order, the Information Commissioner has not taken into account the legal aspect of the matter that the petitioner has joined the post recently and she has no knowledge about the order passed by him neither any letter/ order whatsoever has been received by her after joining on the post on 18.09.2018. 7. Learned counsel for the petitioner further submits that since the petitioner was the District Programme Officer, Bokaro at the relevant period, the impugned order dated 25.02.2020 passed by the -3- Commission has adversely affected her despite the fact that she was not Public Information Officer-cum-District Superintendent of Education, Deoghar during the period of 18.08.2016 to 12.09.2018 when the respondent no.3 had filed application under the Act, 2005 in the said office. It has already been held by this Court in W.P.(C) No. 4377 of 2019 (Tarni Prasad Mukhia Vs. The Jharkhand State Information Commission & Ors.) that the concerned officer who while discharging the duty of Public Information Officer on the date of application made by the information seeker under the Act, 2005 neither provides information within a period of 30 days as provided under Section 7(1) of the said Act nor rejects the said application for the reasons specified in Sections 8 and 9 of the Act within the said period can only be held liable for imposition of penalty under Section 20(1) or to face departmental proceeding as per the recommendation of the Commission under Section 20(2) of the Act, 2005. Learned counsel accordingly submits that in the facts and circumstances of the case, the impugned order dated 04.03.2020 is liable to be quashed by this Court. 8. Mr. Sanjoy Piprawall, learned counsel appearing on behalf of the respondent no.2 submits that though the counter affidavit has not been filed on behalf of the said respondent, yet he has procured the original record of Appeal Case no. 2534 of 2014 from the office of the Commission for proper adjudication of this case. He defends the impugned order dated 25.02.2020 and submits that since the petitioner, while functioning as the Public Information Officer of the concerned office, did not comply the order passed by the Commission, she has rightly been imposed penalty under Section 20(1) of the Act, 2005 and recommendation has been made for initiation of departmental proceeding against her under Section 20(2) of the said Act. 9. Having heard the parties across the bar and upon perusal of the documents brought on record, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons: -4- (I) (II) The admitted fact is that the petitioner was not holding the post at the relevant period of time and she was not aware of the proceedings going on before the Information Commissioner. It is the requirement of law that before passing the punishment order, the petitioner ought to have been provided ample opportunity of hearing to defend her case. In absence of the same, the impugned order being violative of cardinal principle of natural justice is not tenable in the eyes of law and fit to be quashed and set aside. (III) Before passing the impugned order, it was incumbent upon the Information Commissioner to hear the petitioner on the point whether she was aware of the earlier order of the Information Commissioner or not and whether deliberately she has not furnished the desired information to the Information Seeker. (IV) The punishment awarded by the Information Commissioner is not tenable in the eyes of law as the same is violative of principle of natural justice and dehors the rules, which is self-explanatory from Section-20 of the Right to Information Act. Section 20 of the Act which reads as under: for information or has not 20. (1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: -5- Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. (2) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under subsection (1) of section 7 or malafidely denied information or knowingly given the request incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him. for 10. The Hon’ble Apex Court in case of Manohar, s/o Manikrao Anchule Vs. State of Maharashtra & Anr., reported in (2012) 13 SCC 14, has held as under: 20(1), contemplated under Section “22. We may notice that proviso to Section 20(1) specifically contemplates that before imposing the the penalty Commission shall give a reasonable opportunity of being heard to the concerned officer. However, there is no such specific provision in relation to the matters covered under Section 20(2). Section 20(2) empowers the Central or the State Information Commission, as the case may be, at the time of deciding a complaint or appeal for the reasons stated in that section, to recommend for disciplinary action to be taken against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the relevant service rules. Power to recommend disciplinary action is a power exercise of which may a impose recommendation is received, the disciplinary authority would conduct in accordance with law and subject to satisfaction of the requirements of law. It is a ‘recommendation’ and not a ‘mandate’ to conduct an enquiry. ‘Recommendation’ must be seen in contradistinction to ‘direction’ or ‘mandate’. But the recommendation delinquent Public Information Officer or State Public Information Officer with consequences which are of the disciplinary proceedings consequences. When itself vests penal such -6- serious nature and can ultimately produce prejudicial results including misconduct within the relevant service rules and invite minor and/or major penalty. 23. Thus, the principles of natural justice have to be read into the provisions of Section 20(2). It is a settled canon of civil jurisprudence including service jurisprudence that no person be condemned unheard. Directing disciplinary action is an order in the form of recommendation which has civil consequences. It will not be permissible to take the view that compliance with principles of natural justice is not a condition precedent to passing of a recommendation under Section 20(2).” reaching far 11. In the case of Tarni Prasad Mukhia (Supra.), this Court, while deciding the similar issue, has held as under:- “8. Section 6(1) of the Act, 2005 provides that a person, who desires to obtain any information under the said Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed to the Central Public Information Officer or the State Public Information Officer, as the case may be, of the concerned public authority specifying the particulars of the information sought by him or her. 9. Section 7(1) provides disposal of such request, according to which, subject to the proviso to sub-section (2) of Section 5 or the proviso to sub-section (3) of Section 6, the Central Public Information Officer or the State Public Information Officer, as the case may be, on receipt of a request under Section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in Sections 8 & 9. 10. On conjoint reading of Section 6(1) as well as Section 7(1) of the Act, 2005, it would emerge that the Central Public Information Officer or the State Public Information Officer has to provide the information within 30 days of receipt of such application or to reject the said request for cogent reasons i.e. the reasons specified under Sections 8 & 9 of the said Act. 11. Since the respondent No.3 sought information from the Public Information Officer of Zila Parishad, Gumla on 05.08.2014, the officer who was holding the post of the District Engineer-cum-Public Information Officer during the relevant time, was under obligation to provide information to the petitioner as mandated under -7- that transpire the Central Section 7(1) of the Act, 2005. The representative of the Public Information Officer had appeared before the Commission on 20.06.2016 and had submitted that the required information had already been sent to the appellant (the respondent No.3 herein). So far as the petitioner is concerned, he assumed the charge of the said post in the month of July, 2017 and before that the respondent No.3 had already preferred second appeal being Appeal Case No. 1994/2015 before the Commission. The petitioner however appeared on few dates before the Commission. 15. On perusal of the provisions of Section 20(1), it would Information Commissioner or the State Information Commissioner, as the case may be, at the time of deciding any complain or appeal, has to form an opinion that (i) the Central Public Information Officer or the State Information Officer, as the case may be, has without any reasonable cause refused to receive the application for information (ii) has not furnished the information within the time specified under sub-section (1) of Section 7 (iii) malafidely denied the request for information (iv) has intentionally given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information. So far as Section 20(2) of the Act, 2005 is concerned, the said conditions are pari- materia to those in Section 20(1), except that the word ‘persistently’ has been mentioned in condition No.(i) 18. Section 20 of the Act, 2005 is to be treated as a harsh provision and as such before imposing penalty or recommending departmental initiation proceeding, an opinion has to be formed by the Commission that the Public Information Officer has not furnished the information within the time specified without any reasonable cause. There must be an objective consideration by the Commission on the basis of the relevant materials on which the conclusion about such action is drawn. 19. Since the petitioner was not posted as the Public Information Officer on the date of making application under the Act, 2005 by the respondent No.3 i.e. on 05.08.2014, the conditions Nos. (i) & (ii) shall not apply to him. So far as other conditions are concerned, the same are also not proved against the petitioner. It is also not the case that the petitioner at any point of time has receive an application seeking information or has not furnished information within the time frame or has denied the request for information with malafide intention or has knowingly given incorrect, incomplete or misleading information to the refused for to of -8- respondent No.3. Moreover, there is no such allegation against the petitioner that he destroyed the information which was the subject of the request or he obstructed in any manner in furnishing the information. That apart, the Commission in the impugned order has strongly put reliance on the statement made by the then Public Information Officer on 20.06.2016 and has also the considered the information while petitioner without having any concrete evidence to show that the act of the petitioner, who was assigned the duty of the Public Information Officer in the month of July, 2017 was not bonafide.” in providing imposing penalty against the delay occurred 12. On perusal of the impugned order dated 25.02.2020, it appears that the Commission misdirected itself while imposing penalty under Section 20(1) as well as recommending initiation of departmental proceeding under Section 20(2) of the Act, 2005 against the officer, who was posted as District Programme Officer, Bokaro-cum-Public Information Officer on 15th September, 2018 i.e. the date on which the petitioner had filed application under R.T.I. Act, on the ground of non-compliance of its order passed on the said date. 13. Since the petitioner was not posted in the said office from 18.08.2016 to 12.09.2018 rather she had joined there on 18th September, 2018, she cannot be held liable so as to be imposed penalty under Section 20(1) or to face departmental proceeding under Section 20(2) of the Act, 2005. 14. The impugned order communicated vide letter dated 04.03.2020 is, accordingly, quashed. 15. Resultantly, this writ petition is allowed. Rohit/- (Dr. S.N. Pathak, J.)