The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C). No. 6369 of 2016 Dr. Siddharth Sanyal ---------- Versus ………. Petitioner 1. The Chief Information Commissioner, State of Jharkhand, Ranchi. 2. The State of Jharkhand the Principal Secretary, through Departmental of Health, Medical Education and Family Welfare Department, Govt. of Jharkhand, Ranchi. 3. The District Treasury Officer, Giridih. 4. Sri Anil Kumar, New Barganda, Ashram Road, Beside River Bank, Giridih. ………. Respondents. ---------- CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner For the State For the Resp. No. 1
Facts
09/ 29.11.2023 Heard the parties. ----------- : : :
Legal Reasoning
consideration before this Court in W.P.(C). No. 4837 of 2019 (Md. Ziyaul Ansari Vs. the State of Jharkhand & Ors.) and this Court vide order dated 26.04.2023 quashed and set aside the order of penalty in that case and allowed the writ petition. 5. Mr. Sanjoy Piprawall, learned counsel assisted by Mr. Rakesh Ranjan, learned counsel appearing for respondent No. 1 by vehemently opposing the contention of learned counsel for the petitioner argues that first appeal was registered though it was not supported from the records that any notice was issued to the parties and they have been heard. Learned counsel very fairly submits that it appears that impugned order was passed without hearing the petitioner and as such, matter be remitted back to consider afresh after providing opportunity of hearing to the petitioner. 6. In view of fair submissions of learned counsel for the parties this Court is of the view that impugned order is not tenable in the eyes of law. From perusal of records, it appears that admittedly the respondents have not adhered to the specific provisions as mentioned in Section-20(1) of the RTI Act, 2005 which reads thus: 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: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central 4 Public Information Officer, as the case may be. Information Officer or the State Public 7. 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), notice contemplated under Section that proviso “22. We may to Section 20(1) specifically contemplates that before imposing the penalty the 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 impose penal consequences. When the recommendation disciplinary authority would conduct the disciplinary proceedings in accordance with law and subject to satisfaction of is a the requirements of ‘recommendation’ and not a ‘mandate’ to conduct an be enquiry. in seen contradistinction ‘mandate’. But the delinquent Public recommendation Information Officer or State Public Information Officer with consequences which are of serious nature and can including prejudicial ultimately misconduct within the relevant service rules and invite minor and/or major penalty. ‘Recommendation’ must ‘direction’ or to itself vests received, such a produce law. It results is 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 form of disciplinary action is an order 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).” the reaching far in 5 8. It is settled principle of law that audi alteram partem even if not provided under the statutes, the principle of natural justice shall so demand, unless by specific law, it is excluded. It is more so when exercise of authority is likely to vest the person with consequences of civil nature. Similar issue fell for consideration before this Court in the case of Harsh Mangla Vs. the Jharkhand State Information Commission, Ranchi & Ors., reported in 2021 (2) JLJR 300 (HC), wherein this Court after hearing the parties, allowed the writ petition quashing the order of penalty passed against the petitioner of that case. 9. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncement, the impugned order dated 07.04.2016 being not tenable in the eyes of law is hereby quashed and set
Arguments
Mr. Abhay Prakash, Advocate Mr. Rohit, AC to AAG-I Mr. Sanjoy Piprawall, Advocate Mr. Rakesh Ranjan, Advocate ---------- 2. Petitioner has assailed the order dated 07.04.2016, passed by the Chief Information Commissioner, Jharkhand, Ranchi whereby a fine of Rs.25,000/- was imposed upon the petitioner under Section 20(1) of the Right to Information Act, 2005 (for short ‘RTI Act, 2005’). 3. It is the specific case of the petitioner that he was posted as Civil Surgeon, Giridih and on no occasion any such application under RTI Act, 2005 as submitted by the applicant/ respondent No. 4 was brought to the knowledge of the petitioner by his Office. Thereafter, pursuant to his transfer he joined the post of Incharge District RCH Officer, Giridih and since then he is posted there. The petitioner was completely shocked and surprised on receipt of order dated 07.04.2016 which was communicated to him vide memo No. 10850 dated 17.05.2016, issued by the Jharkhand Information Commission, by which a penalty of Rs.25,000/- has been imposed upon the petitioner for not providing the desired information to the applicant/ respondent No. 4 as sought by him under RTI Act, 2005. Upon 2 receipt of such order, the petitioner came to know that a proceeding is being carried before the Jharkhand Information Commission under Appeal Case No. 1591/2015. Thereafter, immediately the petitioner sent a letter dated 13.06.2016 to the Civil Surgeon, Giridih to provide the requisite documents related to the present Appeal Case. The petitioner further sent a reminder dated 27.06.2016. The Office of Civil Surgeon, Giridih vide its letter dated 16.07.2016 provided the photocopy of the receiving register mentioning therein that the then Vishwanath Pal, Clerk had received the said application. Upon enquiry the petitioner came to know that the information sought by the respondent No. 4 relates to personal information of Sri Vishwanath and others and they have intentionally suppressed the said facts and did not inform the petitioner about the application of respondent No. 4 to the petitioner and he came to know about all the facts only after receipt of the impugned order. Throwing challenge to the order of penalty imposed upon him, the petitioner has been compelled to knock the door of this Court. 4. Mr. Abhay Prakash, learned counsel appearing for the petitioner assailes the impugned order on the ground that that Information Commissioner has imposed a penalty of Rs.25,000/- without offering any opportunity of hearing to the petitioner. Learned counsel drawing the attention of the Court towards Section 20(1) of the RTI Act, 2005 submits that it is incumbent upon the respondent No. 1 to issue show-cause notice before imposing penalty which was not done in the instant case. Learned counsel further argues that even he was not aware whether any first appeal was preferred or not and whether notice have been issued and after hearing both the parties, order was passed. Rather, facts remains that the Information Commissioner without ascertaining the fact that whether first appeal has been preferred or not directly entertain second appeal and passed the impugned order, which is not tenable in the eyes of law. Learned counsel submits that as per the provisions of Section 20(1) of the RTI Act, it is mandatory requirement that before imposing punishment, the delinquent should be heard. Learned counsel submits that the similar issue fell for 3
Decision
aside. 10. Resultantly, the writ petition stands allowed. kunal/- (Dr. S.N. Pathak, J.)