Devi Prasad Pal vs State Chief Information ...
2017 Latest Caselaw 8108 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Reserved
 

 
Court No. - 5
 

 
Case :- MISC. BENCH No. - 26145 of 2017
 

 
Petitioner :- Devi Prasad Pal
 
Respondent :- State Chief Information Commissioner Gomti Nagar Lko.& Ors.
 
Counsel for Petitioner :- Gaurav Mehrotra,Santosh Kumar Tripathi,Shreya Prakash
 
Counsel for Respondent :- C.S.C.,Shikhar Anand
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajesh Singh Chauhan,J.

Heard Shri Gaurav Mehrotra, learned counsel appearing for the petitioner, learned Standing Counsel appearing for the State-respondents and Shri Shikhar Anand, learned counsel representing the State Information Commissioner, U.P. Lucknow.

The petitioner, who is a member of Provincial Civil Service and is presently posted as Additional District Magistrate (Judicial), Kanpur Nagar, by instituting these proceedings under Article 226 of the Constitution of India has assailed the validity of the order dated 04.05.2017 passed by the State Information Commissioner, whereby the application made by the petitioner dated 02.06.2014 for review/recall of the order dated 27.07.2011 imposing penalty of Rs.15,000/-, has been rejected.

The petitioner while impeaching the impugned order has submitted that the despite existence of adequate ground for reviewing/recalling the order dated 27.07.2011, the State Information Commissioner has refused to exercise its jurisdiction of review/recall on the basis of reason given in the impugned order, which are not tenable.

On the other hand, learned counsel representing the State Information Commissioner, Shri Shikhar Anand has submitted that there is no illegality in the impugned order dated 04.05.2017 passed by the State Information Commissioner as the grounds of review/recall available to the Commissioner are limited and are confined to the grounds set out in Rule 12 of U.P. Right to Information Rules, 2015. In support of his submissions, learned counsel representing the Commission has relied upon a Division Bench judgment of this Court dated 02.11.2016 rendered in Writ Petition No.985 (M/B) of 2012, Amitabh Thakur vs. U.P. State Information Commission and others.

We have given our anxious consideration to the valuable arguments advanced by the learned counsel appearing for the respective parties.

Before adverting to the arguments made in this case, we may note certain facts in brief.

The information seeker, namely, Shri Jagmohan Kasana, moved an application on 02.11.2010 under Right to Information Act to provide certain information to him. In response to the said application dated 02.11.2010 certain information was provided to the applicant, however, dissatisfied by the information provided to him, he lodged a complaint before the State Information Commission. It is in these proceedings of the complaint made by the information seeker that the impugned order imposing penalty of Rs.15,000/- on the petitioner was passed on 27.07.2011. The petitioner feeling aggrieved, moved an application for recall/review of the order dated 27.07.2011 passed by the State Information Commissioner which has been rejected by the impugned order dated 04.05.2017 by the Commissioner giving the reason that the review application moved by the petitioner does not disclose any ground of procedural error or defect as enumerated in Rule 12 of the Rules, 2015 and hence, the application for review/recall is misconceived. The Commission, thus, refused to exercise its jurisdiction of review/recall as is available to it under Rule 12 of the Rules, 2015.

The ground taken in the application seeking review/recall of the order dated 27.07.2011 by the petitioner was that when the petitioner was posted as Sub Divisional Officer, Ghaziabad, the date in the complaint at hand was fixed before the Commissioner on 27.07.2011 and accordingly a letter by the Additional District Magistrate (Finance and Revenue)/Public Information Officer (Revenue Department), Ghaziabad was sent to the Commission on 21.07.2011 stating therein that some other date may be fixed in the matter for the reason that all the administrative officers in District Ghaziabad have been assigned administrative duty to maintain law and order in District Ghaziabad on account of Kanwar Yatra/Shiv Ratri till 30.07.2011. It was stated by the petitioner that since the petitioner was engaged in maintenance of law and order duty on 27.07.2011, he could not appear before the Commissioner for attending the proceedings drawn on 27.07.2011.

The Commissioner while passing the impugned order, whereby he has refused to exercise its power of review/recall of an order under Rule 12 of Rules, 2015 has observed that the petitioner was given opportunity of hearing to make his submissions on the complaint made by the information seeker on 24.02.2011, 06.04.2011, 18.05.2011 and 27.07.2011, however, the petitioner did not appear before the Commission and hence it is in the light of these facts that the Commission had passed the order of penalty on 27.07.2011.

The documents, which are on record, reveal that on 06.04.2011 and 18.05.2011, though the petitioner did not appear, however, some official, namely, Tehsildar/Naib Tehsildar concerned had appeared before the Commission. On18.05.2011 an order was passed by the Commission (annexure 23 to the writ petition) fixing 27.07.2011 for furnishing information asked by the information seeker and also for showing cause as to why the petitioner may not be imposed penalty under section 20 of the Right to Information Act for non-compliance of an order dated 06.04.2011. The order dated 27.07.2011 (annexure 2 to the writ petition) reveals that information sought by the information seeker was in respect of two case files, namely, Case No.941 and Case No.940. The said order further recites that the information in relation to Case No.941 was provided to the information seeker. The information sought in respect of Case No.940 could not be provided for the reason that the case file of the said case was not traceable and that there were some orders to complete the enquiry in a month and in case the file was not traced then First Information Report be lodged and in case file was traced, the information be provided to the information seeker. There is a letter dated 27.05.2011 on record of this writ petition, as annexure 26, which has been written by the Public Information Officer to the information seeker stating therein that the information sought has been made available to him which was submitted by the Sub Divisional Officer (Sadar), Ghaziabad vide his letter dated 18.05.2011. The letter of the District Magistrate, Ghaziabad dated 21.07.2011 is also on record as annexure 27 to the writ petition, whereby the Secretary of the State Information Commission was informed that in certain matters before the Commission, 27.07.2011 has been fixed as the date, however, on account of requirement of the officers for maintenance of law and order in District Ghaziabad on the occasion of Kanwar Yatra/Shiv Ratri, it will not be possible for the officers concerned to attend the proceedings before the Commission on the said date i.e. on 27.07.2011.

It is in the aforesaid background that the petitioner could not appear before the Commission and his non-appearance resulted in passing of the order dated 27.07.2011.

Section 20 of the Right to Information Act, 2005 provides for penalties. According to this provision, in case the Information Commissioner is of the opinion that the Public Information Officer has, without any reasonable cause, refused to receive an application for information or has not furnished the information within time or has denied the request for information mala fidely or has given incorrect information or incomplete or misleading information knowingly or has destroyed information or has obstructed in any manner furnishing of the information, the Commissioner shall impose penalty. The proviso appended to section 20 further provides that before any penalty is imposed, the officer concerned shall be given a reasonable opportunity of hearing. Section 20 of the Right to Information Act, 2005 is extracted hereunder:

"20. Penalties.--(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 for information or has not furnished information within the time specified under sub-section (1) of section 7 or mala fidely 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 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 sub-section (1) of section 7 or mala fidely 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 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:

Thus, the exercise of power under section 20 of the Right to Information Act, 2005 have civil consequences and as has been held by this Court in the case of Amitabh Thakur (supra) the power of imposing penalty entail such consequences which can be questioned and can be judicially reviewed and that the power is quasi-judicial in nature and is not purely administrative. The Court further proceeds to observe in the said judgment that in case any power is exercised under section 20 by the Commission, it can be subjected to judicial review.

The issue, which has emerged in this case for consideration is as to whether the Commission while passing the impugned order has rightly or wrongly refused to exercise its power of review/recall of an order in terms of the provisions contained in rule 12 of the Rules, 2015. U.P. Right to Information Rules, 2015 have been framed under section 27 of the Right to Information Act, 2005 and hence, are statutory in nature. Rule 12 empowers the Commission, on an application to be submitted by any aggrieved party, to recall its order on the ground of any of the procedural defects enumerated therein. The procedural defects which form grounds of exercise of power of recall/review by the Commission are; (i) that the order was passed by the Commission without hearing the applicant for no fault of his or (ii) the Commission heard and decided the matter on a date other than the one fixed for hearing of the matter and the applicant could not attend the hearing for no fault of his. Rule 12 of the Rules, 2015 is quoted hereunder:

"12. Recall of its order by the Commission on the ground of procedural defect.-(1) The Commission, on an application submitted by any party aggrieved by an order of the Commission, may recall its order on the ground of any of the following procedural defect:

(i)The order was passed by the Commission without hearing the applicant for no fault of his; or

(ii)The Commission heard and decided the matter on a date other than the one fixed for hearing of the same and the applicant could not attend the hearing for no fault of his.

(2)The applicant may submit recall application within thirty days from the date of knowledge of the order of the Commission.

(3)If the Commission is of the view that prima facie there is no merit in the application, it may reject the recall application.

(4)If the Commission is of the view that the matter requires hearing then before passing any order on such recall application, the Commission shall issue notice to all parties to the proceeding to give them an opportunity of being heard."

Thus, the procedural defects which form basis of exercise of jurisdiction of review/recall by the Commission are two. It is only in case the applicant establishes such procedural defects as enumerated in Rule 12 that the Commission would exercise its power of review or recall of an order.

In the instant case, the question before the Commission, while hearing and deciding the review/recall application moved by the petitioner was as to whether the order imposing penalty was passed by the Commission on 27.07.2011 without hearing the applicant for there being no fault on his part. It is not a case where the Commissioner had heard and decided the matter on a date other than the date fixed for hearing. The procedural defects enumerated in Rule 12 also envisage a situation where an applicant could not attend the hearing for no fault of his, then in that eventuality also the Commission would have the authority and power to recall its order. Non-appearance or non-attendance in a proceeding before the Commission on the date of hearing without there being any fault on his part or without any fault which can be attributable to the petitioner, can, thus, form a ground, depending on the circumstances of the case, for recall/review of an order by the Commission.

In the instant case, the facts, which are on record, reveal that it was not a case where hearing took place on a date other than the date already fixed. Recall of the order dated 27.07.2011 was sought by the petitioner on the ground that he could not attend the hearing for the reason that under the order of the District Magistrate, Ghaziabad the petitioner was on duty on 27.07.2011 to maintain law and order and accordingly he could not be relieved for the reason that Kanwar Yatra/Shiv Ratri posed a situation where all the officers of the District Ghaziabad were required to be present in the District for maintaining law and order. The letter dated 21.07.2011, written by the Public Information Officer and issued from the office of District Magistrate, Ghaziabad is also on record whereby the Commission was informed forehand that on 27.07.2011 the petitioner and other officers required to attend as many as six cases fixed before the Commission on 27.07.2011 will not be able to attend the proceedings of those cases on account of deployment of the officers on law and order duty on the occasion of Kanwar Yatra/Shiv Ratri.

In the aforesaid circumstances, non-appearance of the petitioner before the Commission on 27.07.2011 cannot be attributed to the petitioner. Non-attendance before the Commission of the petitioner on the date on which the order of penalty was passed was thus, not a result of any fault on the part of the petitioner. The reason for non-appearance of the petitioner before the Commission on 27.07.2011 was his engagement as per the order of District Magistrate in law and order duty. Maintenance of law and order in a District is an issue which any administration cannot be permitted to take lightly and in such exigencies, the officers, specially the Executive Magistrates, may be required to be present in their Districts of posting.

It is common knowledge that on the occasion of Kanwar Yatra/Shiv Ratri, many a times Yatra poses a threat to law and order and accordingly then the District Magistrate cannot be faulted with when he deputed the petitioner for performing law and order duty during the said period of Kanwar Yatra/Shiv Ratri.

So far as the judgment in the case of Amitabh Thakur (supra) cited by the learned counsel appearing for the Commission is concerned, there cannot be any dispute on the legal proposition enumerated therein that the power of recall is limited in the contingencies referred to in Rule 12 of the Rules, 2015, however, as to whether any such contingency, in a particular case, exists or not is an issue which needs determination by the Commission while deciding the application for recall of an order, depending on the facts of the case. Non appearance because of no fault of a person in the proceedings of the Commission is a ground available to the Commission for reviewing/recalling its order. In such a case, what needs to be determined by the Commission is as to whether non-appearance was because of any fault on the part of the person concerned or in other words, as to whether non-appearance is attributable to such a person.

In the instance case, what we understand from the perusal of the pleadings available is that non-appearance of the petitioner on 27.07.2011 before the Commission was on account of his deployment in the law and order duty as has been alleged by the petitioner in the application seeking recall of the order dated 27.07.2011.

In the light of the aforesaid discussion, we are of the considered opinion that the reason given in the application seeking recall of the order dated 27.07.2011 moved by the petitioner constitutes a ground as enumerated in Rule 12 of the Rules, 2015 which gives jurisdiction to the Commission to exercise the power of recall/review.

So far as the veracity or the truthfulness of the reasons given by the petitioner in his application for recall is concerned, the same needs to be verified by the Commission. However, so far as the prima facie existence of the ground for exercising the recall jurisdiction is concerned, in our narration as above, we have already indicated that the same does exist in this case.

Accordingly, the writ petition is allowed and the impugned order dated 04.05.2017 passed by the State Information Commission, as is contained in Annexure No.1 to the writ petition is hereby quashed.

The Commission will now decide the application moved by the petitioner seeking recall of the order dated 27.07.2011 afresh in the light of the observations made hereinabove and also after issuing notice to the information seeker-Shri Jagmohan Kasana.

In the facts of the case, however, parties shall bear their own costs.

 
Order Date :- 19.12.2017
 
akhilesh/
 
	[Rajesh Singh Chauhan, J.]    [D. K. Upadhyaya, J.]