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: 20-Mar-2024 17:53:09 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 12216 OF 2009 Manoranjan Nanda …. Petitioner Mr. Subir Palit, Senior Advocate being assisted by Mr. D. Biswal, Advocate -versus- State Commission of Information others …. Opp. Parties None CORAM: JUSTICE K.R. MOHAPATRA Order No. 7. 1.
Decision
ORDER 19.03.2024 This matter is taken up through hybrid mode. 2. Order dated 2nd July, 2009 (Annexure-4) passed by the Odisha Information Commission, Bhubaneswar (for brevity ‘the Commission’) in Complaint Case No.327 of 2008 is under challenge in this writ petition, whereby the Petitioner has been imposed with a penalty of Rs.25,000/- for obstructing supply of information within the time prescribed under the Right to Information Act, 2005 (for brevity ‘the Act’). 3. Mr. Palit, learned Senior Advocate appearing for the Petitioner submits that the Petitioner was working as a Junior Horticulture Officer in the office of Horticulture, Khurda during November, 2007, when Mr. Sanat Kumar Pattnaik-Opposite Party No.4 identifying himself as a Journalist came to the office on 8th November, 2007 and intended to submit an application in Form-A under Section 6(1) of the Act seeking certain information. The Petitioner was the junior most officer in the hierarchy. He was also not authorized to receive any application Page 1 of 5 // 2 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2024 17:53:09 under the Act at the relevant time. However, in absence of his two senior officers, namely, Sri Jyotiranjan Sahoo, the then Horticulturist and Sri D.D. Champatiray, the then JHO on that date, he received the application without requisite fees in good faith keeping in mind the reputation of Opposite Party No.4. As he was the junior most officers and was not authorized to receive any application, he was not aware of intricacies of the same. On the very next date, he handed over the application to Sri Jyotiranjan Sahoo, the Horticulturist, who was the Public Information Officer (PIO). On verification of the application, he indicated that it was accepted without any requisite fees. Although the Complainant-Opposite Party No.4 was requested to deposit the requisite fees, he did not. As such, the information sought for by the Opposite Party No.4 could not be supplied in time. 4. On being noticed by the Commission, the Petitioner also filed an affidavit (Annexure-3) explaining the same and tendered unconditional apology pleading his ignorance and innocence. Subsequently, the Petitioner was appointed as Asst. Public Information Officer to deal with such type of situation. Hence, he requested to exonerate him from guilt committed, if any. Prior to filing of his affidavit, the Petitioner had also appeared before the Commission on being noticed. On 29th April, 2009 (Annexure-2), the matter was taken up when the Petitioner along with others were present and the Commission without providing him an opportunity held him guilty and also opined that the Petitioner is liable to pay a sum of Rs.25,000/- as penalty. Page 2 of 5 // 3 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2024 17:53:09 5. Mr. Palit, learned Senior Advocate drew attention of this Court to Paragraph-4 of the order dated 29th April, 2009 under Annexure-2 passed in Complaint Case No.327 of 2008, which reads as under: “4. On perusal of the documents in the case record and on the basis of the statements of the above mentioned officers, the State Commission were of the opinion that inexplicable delay had occurred and, therefore, there was no escape for the ex-PIO from the rigours of the RTI Act, 2005. Hence the State Commission decided to impose penalty of Rs.25,000/- on the ex- PIO due to delay is not with dealing the RTL application within prescribed timeline. However, in view of the principles of natural justice, the State Commission decided to give reasonable opportunity to the ex-PIO Manoranjan Nanda to submit his showcause to defend himself, on the next date of hearing. The State Commission further directed the First Appellate Authority to submit his written showcause memorandum as to why he did not act properly while dealing with the appeal of the Complainant. 5. 6. No notice need be issued as all of them took note of the next date of hearing. Put up on 2/7/2009 for further hearing and orders.” 7. Subsequently, the matter was taken up on 2nd July, 2009 and the impugned order under Annexure-4 was passed. 6. It is submitted by Mr. Palit, learned Senior Advocate that post decisional opportunity of hearing does not sub-serve the rules of natural justice. In the instant case, before providing an opportunity to the Petitioner to file his show cause reply in the complaint case, a decision was taken on 29th April, 2009 under Annexure-2 to impose a penalty of Rs.25,000/- on him. In the instant case, the Petitioner was neither the PIO nor the Asst. PIO at the relevant time and he was no way responsible for delay in supplying the information. These aspects were also not taken into consideration by the Commission while passing the Page 3 of 5 // 4 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2024 17:53:09 impugned orders under Annexures-2 and 4. It is further submitted that the complainant was supplied with the information free of cost. He, therefore, prays for setting aside the impugned orders under Annexures-2 and 4. 7. None appears for the Opposite Parties although they are represented through learned counsel. 8. Upon hearing Mr. Palit, learned Senior Advocate for the Petitioner and on perusal of the record, it appears that before initiation of proceeding under Section 20(1) of the Act, the Commission had already taken a decision on 29th April, 2009 under Annexure-2 holding the Petitioner is liable to pay penalty of Rs.25,000/-. Mr. Palit, learned Senior Advocate also relied upon the case of H.L. Trehan and others –v- Union of India and others, reported in (1989) 1 SCC 764, wherein at Paragraphs-12 & 13, it is held as under: “12. It is, however, contended on behalf of CORIL that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the conditions of their service by the impugned PG NO 931 circular. In our opinion, the post-decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity. In this connection, we may refer to a recent decision of this Court in K.I. Shephard & Ors. v. Union of India & Ors., JT 1987 (3) 600. ………………. 13. The view that has been taken by this Court in the above observation is that once a decision has been taken, there is a tendency to uphold it and a representation may not yield any fruitful purpose. Thus, even if any hearing was given to the employees of CORIL after the issuance of the impugned circular, that would not be any compliance with the rules of natural justice or avoid the mischief of arbitrariness as contemplated by Article 14 of the Constitution. The High Court, in our opinion was perfectly justified in quashing the impugned circular.” Page 4 of 5 // 5 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2024 17:53:09 9. In the instant case, before providing an opportunity of hearing to the Petitioner in the proceeding under Section 20(1) of the Act, the Commission had already taken a decision to impose penalty of Rs.25,000/- on him. As held in the case of H.L. Trehan and others (supra), a post decisional opportunity of hearing does not sub-serve the rules of natural justice. Thus, both the orders under Annexures-2 and 4 are not sustainable in the eye of law. 10. Accordingly, both the orders under Annexuers-2 and 4 are set aside. This Court could have remitted the matter to the Commission for fresh consideration. But, in the meantime, more than fourteen years have already elapsed. Thus, to give a quietus to the matter, the writ petition is disposed of without remitting the matter to the Commission for fresh consideration. 11. Interim order dated 21st August, 2009 passed in Misc. Case No.10126 of 2009 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5