Bombay High Court
Pramod @ Sachin D. Kalokhe vs Public Information Officer And 2 Ors on 13 September, 2024
2024:BHC-GOA:1523
2024:BHC-GOA:1523
5-WP 321-2023.DOC
vinita
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.321 OF 2023
Mr Pramod alias Sachin D. Kalokhe,
Aged 44 years, R/o House No. 268,
Manshebhat, Britona, Penha-de-Franca,
Bardez, Goa. ..... Petitioner.
Versus
1 Public Information Officer, Village
Panchayat Penha-De-Franca.
2 Block Development Officer-Bardez,
First Appellate Authority,
Government of Goa, Mapusa
Bardez, Goa.
3 State Chief Information
Commissioner, Second Appellate
Authority, State Information
Commission, Government of Goa,
Kamat Tower, 7th Floor, Patto,
Panaji Goa. ...... Respondents.
Ms Apeksha Kalokhe, Advocate for the petitioner.
Mr Nikhil Pai and Mr Adithya Unni, Advocate for respondent no. 1.
Mr Prashil Arolkar, Addl. Govt. Advocate for respondent no.2.
CORAM: BHARAT P. DESHPANDE, J
Dated : 13th September 2024.
ORAL JUDGMENT:
1. Rule.
2. Rule is made returnable forthwith.
3. Matter is taken up for final disposal at the admission stage with
consent of the parties.
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4. Heard Ms Kalokhe, learned counsel for the petitioner, Mr N.
Pai, learned counsel for the respondent no.1 and Mr P. Arolkar,
learned Addl. Govt. Advocate for respondent no.2
5. The short question which has been raised in the present
petition is the action of the State Information Commission in only
issuing warning to the Public Information Officer (PIO) and not
following the procedure laid down in Section 20 of the Right to
Information Act 2005.
6. Ms Kalokhe submits that petitioner filed an application under
Right to Information Act and specifically under Section 7(1) on
28.9.2022 asking respondent no.1 to furnish information as
mentioned in paragraph 1 of the said application. In all, four
questions/queries were raised seeking information/documents from
respondent no.1.
7. Ms Kalokhe submits that petitioner received a reply dated
11.10.2022 from respondent no.1 thereby answering all the four
questions "information not available".
8. Ms Kalokhe submits that petitioner then filed an appeal before
the First Appellate Authority i.e respondent no. 2 against denial of
information. The First Appellate Authority vide its order dated
17.11.2022 directed the respondent no.1/Public Information Officer
to give information on or before 23.11.2024.
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9. Ms Kalokhe submits that even this deadline was not adhered
to. However part information was submitted vide letter dated
25.11.2022 thereby answering question nos. 1 and 4 whereas answer
to question nos. 2 and 3 is again the same "information is not
available on the official record."
10. Petitioner being aggrieved by such part information and also
delay in furnishing the information, filed Second Appeal before the
State Information Commission. While deciding such appeal by the
impugned order dated 18.5.2023, State Information Commission
observed that information ought to have been given and "not
available" is vague and such reply cannot be accepted in respect to
Section 7(1) of the said Act.
11. Ms Kalokhe submits that the Second Appellate Authority
observed that Public Information Officer committed irregularities
and failed to follow the procedure prescribed under the Act, however
instead proceeding under Section 20 of the said Act, Second
Appellate Authority only observed to issue warning to the PIO and
then dismissed the appeal.
12. Per contra, Mr Pai appearing for the respondent no.1 would
submit that information was furnished with a delay of only 2 days
and Second Appellate Authority has considered that there is no case
made out for compensating the petitioner. He submits that Second
Appellate Authority by observing that the warning would be sufficient
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concluded that there is no need to proceed under Section 20 of the
said Act.
13. Mr Pai submits that petitioner issued the information as per
direction of the First Appellate Authority and therefore appeal has
been rightly rejected.
14. Rival contentions fall for determination.
15. Provision under Section 7 of the Right to Information Act
entitles a person to seek information from the concerned authority
and authority who is responsible for furnishing such information is
bound to provide it in a time bound manner. It is no doubt true that
certain information could be exempted under Section 8 of the Act.
PIO is also entitled to reject the application on certain grounds.
However, the present matter would clearly go to show that the
application was filed with regards to information of the panchayat
member of ward no. 3 of the same Village Panchayat. Four questions
were raised seeking documents/information. PIO vide his letter
dated 11.10.2022 refused to handover such information on the
ground that information is not available. Thus it is clear that PIO
answered the queries raised by the petitioner and refused to
handover information on the ground that such information is not
available in his office. By this answer it is clear that PIO even failed
to exercise jurisdiction under Section 6(3) of the said Act thereby
transferring such application to PIO, who possesses such
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information. Simply by saying that information is not available,
cannot be answer of such queries.
16. It is matter of record that during the pendency of the appeal
filed by the petitioner before the First Appellate Authority, a specific
order was passed which is dated 17.11.2022 which reads thus:-
"The Appellant present in person. The Respondent
are representation by Adv. V. Naik. The
Respondents are directed to give information before
23rd Nov. 2022. The respondent are given final
opportunity to give the information. Matter is
disposed."
17. Roznama, which is produced from the First Appellate
Authority, would go to show that though PIO appeared, failed to file
any reply and was therefore directed to handover information.
18. It is matter of record that such information was not furnished
to the petitioner on or before 23.11.2022. Letter along with
information/documents was furnished to the petitioner on
25.11.2022. Here also information with regard to question nos.1 and 4
was furnished whereas information with regard to question nos. 2
and 3 was not furnished with clarification that such information is
not available on the record.
19. It clearly goes to show that all four questions raised by the
petitioner are in connection with residence/ residential house of the
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panch member of Ward no.3 of the said village panchayat. However,
question nos. 2 and 3 were again answered as information not
available. PIO failed to disclose or even failed to exercise powers
under Section 6(3) for transferring said application to the concerned
PIO in whose possession such information is found to be available.
20. Petitioner being dissatisfied with this information provided in
part and by delay of two days, filed an appeal before the State
Information Commission. Reply was filed before the State
Information Commission by respondent no.1 and thereafter said
appeal was disposed of by the impugned order dated 18.5.2023.
21. Observations of the Second Appellate Authority in paragraph
no. 16 reads thus:-
"16 In the given case, the RTI application dated
28/09/2022 was initially replied on 11/10/2022.
In the said reply the PIO mechanically informed
the Appellant that "Information is not
available". In the said reply, the PIO neither
cited exact provision of the Act to reject the
request nor gave any reasoning as to why said
information is not available. The word 'not
available' is vague in as much as it does not
suggest what efforts the PIO made to locate the
information. It appears that the PIO without
any reasonable verification replied the RTI
application as "information not available". Such
a vague reply cannot be accepted as a response
under Section 7(1) of the Act. The PIO has
committed irregularity and not followed the
provision prescribed by the Act, therefore, I find
it appropriate to warn the PIO, Shri. Suresh S.
Fadte that he should deal with the RTI
applications with due sanctity. However, this
being the first lapse as is noted by the
Commission, a lenient approach is adopted. The
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PIO shall be diligent henceforth and deal with
the application under the Act with caution and
with the spirit and intent with which the Act is
promulgated. With the above observation,
appeal stands dismissed.
Proceedings closed.
Pronounced in the open court.
Notify the parties."
22. It is clear from the above observation that the Second Appellate
Authority found that the answers given by PIO are vague and it
clearly shows that PIO committed irregularities. However, once it is
found that information was available but not given, remedy available
with the Appellate authority is as provided under Section 20 of the
Act which reads thus:-
"20 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 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;
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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 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 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."
23. A careful reading of the above provision would go to show that
the PIO without any reasonable cause refused to hand over the
information or give incomplete or misleading information, he shall be
imposed with the penalty of Rs.250/- for each day till application is
received or information is furnished. Similarly, the Appellate
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Authority is also empowered to direct the department to conduct
disciplinary proceedings in case PIO is found to be negligent or
refusing to give information without any reasonable cause.
24. In the present matter the Second Appellate Authority has
clearly observed that the information was not provided without any
reasonable cause. The only option with the concerned Second
Appellate Authority is to proceed against the concerned PIO under
Section 20 of the said Act. It is for the departmental authority to
consider whether warning should be given to the concerned officer.
The Second Appellate Court, in the present matter, encroached upon
the powers of the Disciplinary Authority and issued a warning to the
PIO which is not provided under the Act.
25. For the above disclosed reasons, a second appeal filed before
the concerned authority is required to be remanded to the concerned
authority only for the purpose of deciding said matter in accordance
with Section 20 of the said Act. As far as observations on merits of the
Second Appellate Authority are concerned, there is no need to
interfere with it. However, dismissal of the said appeal by issuing
warning, needs to be interfered with.
26. Accordingly, Second Appeal is remanded to the concerned
authority only for the purpose of taking up the said proceeding in
accordance with Section 20 of the said Act. For this purpose the
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order of the Second Appellate Authority of issuing warning and
dismissal of the Second Appeal is quashed and set aside.
27. Parties shall appear before the Second Appellate Authority on
30.9.2024 during the afternoon session. The Second Appellate
Authority shall decide the matter with regards to penalty under
Section 20 of the Act after hearing both the sides, preferably within a
period of one month. Rule is made absolute in the above terms.
28. Petition stands disposed of accordingly.
BHARAT P. DESHPANDE, J.
13th September 2024
