The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Apr-2024 14:48:08 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 27564 OF 2011 (An application under Articles 226 & 227 of the Constitution of India) ***** Dr. Ardhendu Sekhar Bhol …… Petitioner -Versus- State Information Commissioner, Bhubaneswar and others .…… Opp. Parties Advocates appeared: For Petitioner : Mr. S.S.K. Nayak, Advocate For Opp. Parties : Mr. Smruti Ranjan Dash, Advocate (For Information Commission)
Decision
------------------------------------------------ Heard and disposed of on 05.04.2024 ---------------------------------------------- JUDGMENT K.R. Mohapatra, J. 1. This matter is taken up through hybrid mode. 2. Mr. S.S.K. Nayak, learned counsel and his associates taking consent from the previous counsel files Vakalatnama in Court today on behalf of the Petitioner. Vakalatnama so filed is taken on record. This writ petition has been filed assailing the order dated 3. 24th August, 2011 (Annexure-2) passed by the Odisha Information Commission, Bhubaneswar (for brevity ‘the W.P.(C) No. 27564 OF 2011 Page 1 of 6 // 2 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Apr-2024 14:48:08 Commission’) in Second Appeal No.284 of 2008, whereby exercising the power under Section 20(1) of the Right to Information Act, 2005 (for brevity ‘the Act’), the Commission imposed a cost of Rs.12,750/- on the Petitioner for causing fifty one days’ delayin supplying the information to the applicant, namely, Prasanna Kumar Mishra-Opposite Party No.5. 4. Mr. Nayak, learned counsel for the Petitioner submits that the impugned order under Annexure-2 suffers from non- consideration of material facts and is in violation of principles of natural justice. Elaborating his submission, Mr. Nayak, learned counsel submits that the Petitioner was the Ex-Controller of Execution of Board of Secondary Education, Odisha during the relevant period, i.e., from 13th November, 2007 to 1st October, 2008. The Petitioner is no way responsible to supply the information to the Opposite Party No.5, as he was neither the Public Information Officer (PIO) nor the referral PIO. The entire records from which information was sought for were in the custody of the Secretary and President of Board of Secondary Education. The Petitioner was only responsible to conduct the examination. 5. He further submits that the show cause reply submitted by the Petitioner to the notice under Section 20(1) of the Act was not taken into consideration by the Commission in the decision making process. It is his submission that basing upon the report of the First Appellate Authority, the Commission formed an opinion that there was fifty one days’ delay in supplying the information. The said report of the First Appellate Authority was W.P.(C) No. 27564 OF 2011 Page 2 of 6 // 3 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Apr-2024 14:48:08 never supplied to the Petitioner, which formed basis of imposition of penalty. As such, the decision making process of imposition of penalty on the Petitioner is vitiated. He, therefore, prays for setting aside the impugned order under Annexure-2 so far it relates to imposition of penalty on him. 6. Mr. Dash, learned counsel appearing for the Commission vehemently objects to the above. It is strenuously urged that the Commission on scrutiny of record and giving ample opportunity to the parties, passed the impugned order. At no point of time, the Petitioner had ever sought for supply of the copy of the report of the Secretary-cum-First Appellate Authority. Thus, the allegation of violation of principles of natural justice is not correct. Notice under Section 20(1) of the Act was served on the Petitioner before taking up the proceeding to impose penalty on him along with others. Hence, it cannot be said that the decision making process under Section 20(1) of the Act is vitiated. He, however, submits that in the event, an adjournment is granted, the Commission can produce the records for just adjudication of the writ petition. He, however, prays for dismissal of the writ petition submitting that there is no illegality in imposing the penalty on the Petitioner. 7. Taking note of the submissions made by learned counsel for the parties, it is apparent that the Petitioner was the Controller of examination of Board of Secondary Education, Odisha during 13th November, 2007 to 1st October, 2008. During that period, the Opposite Party No.5 sought for information, i.e., to supply the answer scripts of History, Geography and Third W.P.(C) No. 27564 OF 2011 Page 3 of 6 // 4 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Apr-2024 14:48:08 Language Sanskrit. Admittedly, there was some delay in supply the answer scripts to the Opposite Party No.5. The question that arises for consideration, as to whether the Petitioner has any contribution in obstructing supply of information for which the delay occurred in supplying the same. Pursuant to the notice under Section 20(1) of the Act, the Petitioner submitted his reply under Annexure-1 detailing the entire scenario. It appears that the show cause reply submitted by the Petitioner was not taken into consideration by the Commission at the time of adjudication. 8. It further appears that the Commission based its finding on the report submitted by the Secretary-cum-First Appellate Authority, Board of Secondary Education, wherein it is reported that there was delay of fifty nine days at the level of Dr. Ardhendu Sekhar Bhol, Ex-Controller of Examinations, the Petitioner, who was subsequently posted as Reader in Political Science, Government College, Dhenkanal. There is nothing on record to show that a copy of said report was made over to the Petitioner seeking his reply/response. When a material is utilized and formed the basis of imposition of penalty on the Petitioner, it should have been supplied to the Petitioner seeking his response from the same. The submission of Mr. Dash, learned counsel for the Commission to the effect that the Petitioner had not sought for supply of such report, holds no good as it is the duty of the decision making authority to supply the material basing upon which the opinion is formed to impose the penalty. Apparently no material is available on record to show that the W.P.(C) No. 27564 OF 2011 Page 4 of 6 // 5 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Apr-2024 14:48:08 report of the First Appellate Authority under the Act was supplied to the Petitioner at any point of time. 9. On a close reading of the impugned order under Annexure-2, it appears that the show cause reply at Annexure-1 was not taken into consideration in its proper perspective. The Commission only holds that the Petitioner had submitted the fact that he was in charge of Controller of examination from 11th July, 2008 to 1st October, 2008. It was also observed by the Commission that the Petitioner in his show cause reply clarified that indecisiveness of the Board in furnishing the evaluated answer scripts as well as answered scripts being damaged by rain water logging, he was handicapped in supplying the same. 10. On perusal of Annexure-1, it appears that the Commission has misread the show cause reply of the Petitioner. The Petitioner in its show cause reply has clarified that he was not responsible/conferred with the power/responsibility to supply the information sought for. There is nothing on record to show that the information sought for was routed through the Petitioner for its supply. In that view of the matter, this Court feels that the impugned order under Annexure-2 is not sustainable being violative of principles of natural justice and non-consideration of materials on record. 11. Thus, the decision making process in imposing the penalty on the Petitioner is vitiated. As such, the same is set aside so far it relates to imposing the penalty on the Petitioner. 12. This Court could have remitted the matter to the Commission for fresh consideration of the matter complying W.P.(C) No. 27564 OF 2011 Page 5 of 6 // 6 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Apr-2024 14:48:08 with the principles of natural justice. But, the impugned order was passed as back as on 24th August, 2011 and the Petitioner has in the meantime superannuated from service. Thus, to give a quietus to the issue, this Court refrains from remitting the matter to the Commission for fresh adjudication. 13. Accordingly, the writ petition is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to cost. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated 5th April, 2024/Madhusmita W.P.(C) No. 27564 OF 2011 Page 6 of 6