Bombay High Court
Vithobha S/O Somaji Mungmode, ... vs The State Information ... on 15 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.5595 OF 2015
PETITIONER: Vithobha s/o Somaji Mungmode
(Information officer/Principal) Kisan
Vidhyalaya Koregaon, Aged about 56
years, R/o Koregaon, Taluka
Desaigunj, District Gadchiroli.
-VERSUS-
RESPONDENTS: 1. The State Information Commissioner,
State of Maharashtra, Nagpur Bench,
Nagpur.
ig 2. The Education officer, (Secondary)
The Appellate Authority, Under Right
to Information Act, Zilla parishad,
Gadchiroli.
3. Someshwar S/o Vishwanath Kawle,
Aged about 59, R/o P.O.
Brahamapuri, near Khandoba
Temple, Bhavani Ward, Brahampuri,
District Chandrapur.
Shri S. Z. Qazi, Advocate for the petitioner.
Shri R. D. Bhuibhar, Advocate for the respondent No.1.
Ms. Tajwar Khan, Asstt. Government Pleader for respondent No. 2.
Ms Shilpa Giradkar, Advocate for the respondent no.3.
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CORAM: A.S. CHANDURKAR, J.
DATED: 15
th JULY, 2016.
ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The petitioner is aggrieved by the order passed by the
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State Information Commission dated 8-5-2015 partly allowing the
appeal filed by the respondent no.3 and directing the petitioner to
supply information sought by the said respondent.
3. The respondent no.3 moved an application on
23-7-2014 under provisions of the Right to Information Act, 2005
(for short, the said Act) demanding supply of information which
included pay bills for the period from 1984 to 1987. The
Headmaster of the concerned school in his reply took the stand
that all records from 1984 up to 1987 had been audited by the
competent authority and had been thereafter kept aside but the
said record was now not available having been eaten by termites.
4. The respondent no.3 being aggrieved filed an appeal
and the first appellate Authority directed the petitioner to take
search of the said record and supply necessary information. As this
information was not supplied, the respondent no.3 filed a second
appeal. By the impugned order, the State Information Commission
directed the petitioner to supply the necessary information and
also issued a show cause notice as to why fine of Rs.21,250/-
should not be imposed.
5. Shri S. Zia Quazi, the learned Counsel for the
petitioner submitted that the specific stand taken by the petitioner
with regard to destruction of records on account of termites was
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not considered by the State Information Commission and a
direction to supply the said information came to be issued. He
submitted that the pay bills in question had been duly audited and
hence they were kept aside thereafter. According to him, the
service book of the respondent no.3 bearing relevant information
was made available. Moreover, the information pertained to a
period prior to thirty years. He, therefore, submitted that such
information which was not available with the petitioner could not
have been directed to be supplied.
6. Shri R. D. Bhuibhar, the learned Counsel for the
respondent no.1 and Ms. Giradkar for respondent no.3 supported
the impugned order. According to them, despite directions being
issued by the first appellate Authority the petitioner did not supply
requisite information and therefore, the State Commission was
justified in confirming the said direction. The delay in supplying
the said information being deliberate, a fine of Rs.250/- per day
was also rightly imposed.
7. Perusal of the documents on record indicate that a
specific stand was taken by the petitioner on 29-10-2014 that the
pay bills for the years 1984 to 1987 after being audited had been
kept aside and they were subsequently destroyed by termites.
While considering the appeal, the State Information Commission
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has referred to the stand in the impugned order. However, there is
no finding recorded either accepting the said stand or rejecting the
same. It was necessary for the State Information Commissioner to
have first recorded a finding on the said stand as the availability of
the said records went to root of the matter. Without recording any
such finding, the State Information Commissioner merely observed
that the clarification given was not satisfactory.
8. It is also to be noted that the State Information
Commission issued a show cause notice so as to impose penalty on
the petitioner. Under Section 20(1) of the said Act, such penalty
can be imposed after the Commission has found that without any
reasonable cause the information sought has not been supplied or
that the request was malafidely denied. In the present case,
without recording any such finding the show cause notice has been
issued. Though it is submitted on behalf of the respondent no.1
that this factor can be considered in the reply to the show cause
notice, once it is found that the basis for issuance of the show
cause notice itself is absent, the said submission cannot be
accepted.
9. In view of aforesaid, I find that the appellate Authority
should be directed reconsider the appeal preferred by the
respondent no.3. Accordingly the order dated 8-5-2015 passed by
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the State Information Commission is set aside. The appeal is
restored for being reconsidered by the appellate Authority in the
light of observations made in this order. The appeal shall be
decided on its own merits and in accordance with law. The parties
shall appear before the State Information Commission on 2-8-
2016.
10. Rule is made absolute in aforesaid terms with no order
as to costs.
//MULEY//
JUDGE
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