Chattisgarh High Court
Suresh Singh vs C.G. State Information ... on 3 September, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Writ Petition (S) No. 1602 of 2013
Suresh Singh S/o Late D.P. Singh, Aged about 41
years, Working as District Program Officer, Women
and Child Development Department, P.S. Civil
Line, Bilaspur, Chhattisgarh.
Petitioner
Versus
1. C.G. State Information Commission, Through its
State Information Commissioner, C.G. State
Information Commission, Raipur, Distt. Raipur,
Chhattisgarh.
2. Additional Collector (Appellate Authority under
the Right to Information Act, 2005), Distt. Durg,
Chhattisgarh.
3. District Programme Officer, Women and Child
Development Department, Durg, Chhattisgarh.
4. Sheikh Kareem R/o Kasaridih, Street No. 1, P.S.
City Kotwali, Distt. Durg, Chhattisgarh.
Respondents
Writ Petition (S) No. 1603 of 2013
Suresh Singh S/o Late D.P. Singh, Aged about 41
years, Working as District Program Officer, Women
and Child Development Department, P.S. Civil
Line, Bilaspur, Chhattisgarh.
Petitioner
Versus
1. C.G. State Information Commission, Through its
State Information Commissioner, C.G. State
Information Commission, Raipur, Distt. Raipur,
Chhattisgarh.
2. Additional Collector (Appellate Authority under
the Right to Information Act, 2005), Distt. Durg,
Chhattisgarh.
3. District Programme Officer, Women and Child
Development Department, Durg, Chhattisgarh.
4. Sheikh Kareem R/o Kasaridih, Street No. 1, P.S.
City Kotwali, Distt. Durg, Chhattisgarh.
Respondents
Writ Petition (S) No. 1604 of 2013
Suresh Singh S/o Late D.P. Singh, Aged about 41
years, Working as District Program Officer, Women
and Child Development Department, P.S. Civil
Line, Bilaspur, Chhattisgarh.
Petitioner
Versus
1. C.G. State Information Commission, Through its
State Information Commissioner, C.G. State
Information Commission, Raipur, Distt. Raipur,
Chhattisgarh.
2. Additional Collector (Appellate Authority under
the Right to Information Act, 2005), Distt. Durg,
Chhattisgarh.
3. District Programme Officer, Women and Child
Development Department, Durg, Chhattisgarh.
4. Sheikh Kareem R/o Kasaridih, Street No. 1, P.S.
City Kotwali, Distt. Durg, Chhattisgarh.
Respondents
For Petitioner : Mr. Vinod Deshmukh, Advocate
For Respondent 1 : Mr. Shyam Sunder Tekchandani,
Advocate
For Respondents 2 and 3/State :
Mr. Animesh Tiwari, Dy. A.G.
For Respondent 4 : Mr. Devarshi Thakur, Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
Order on Board (Th. Video Conferencing)
03/09/2021
1. Since common question of law and fact is
involved in all these writ petitions, they have
been heard together and are being decided by
this common order.
2. The petitioner herein calls in question order
dated 23/01/2013 (Annexure P/1) in all these
three petitions passed by respondent No. 1 in
three different appeals being A/430/2012,
A/431/2012 and A/432/2012, respectively granting
the said appeals filed by respondent No. 4 and
imposing penalty of Rs. 25,000/ upon the
petitioner in each of the appeals under Section
20(1) of the Right to Information Act, 2005 for
not providing the requisite information to
respondent No. 4 and further directing to
provide the required information to respondent
No. 4 free of cost.
3. Mr. Vinod Deshmukh, learned counsel for the
petitioner, would submit that the procedure
envisaged under Section 20(1) of the RTI Act,
2005 has not been followed while passing the
impugned order. In these appeals preferred by
respondent No. 4 before the respondent No. 1,
notices were issued to the petitioner and the
case was fixed on 23/01/2013, but since the
notices were received by the petitioner on the
same day i.e. on 23/01/2013, therefore, he could
not appear and without awaiting his appearance,
the impugned order was passed, as such, it
deserves to be set aside.
4. Mr. Shyam Sunder Tekchandani, learned counsel
for respondent No. 1 and Mr. Devarshi Thakur,
learned counsel for respondent No. 4 would
support the impugned order.
5. Mr. Animesh Tiwari, learned State counsel
appearing on behalf of respondents No. 2 and 3,
would also support the impugned order and submit
that the said order passed by learned State
Information Commissioner is strictly in
accordance with law and it has rightly been
passed, as such, the instant writ petitions
deserve to be dismissed.
6. I have heard learned counsel for the parties at
length and perused the records.
7. At this stage, it would be appropriate to notice
Section 20(1) of the Right to Information Act,
2005 which states as under:
"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
subsection (1) of section 7 or malafidly
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 twentyfive 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."
8. A careful perusal of Section 20(1) of the Act of
2005 would show that if the State Public
Information Officer has not furnished
information within the time specified under
subsection (1) of Section 7 or malafidely
denied the request for information, the State
Information Commission has power and
jurisdiction to impose a penalty till the
information is furnished after giving a
reasonable opportunity of being heard before any
penalty is imposed on the Public
Information Officer who is guilty of not giving
such information and in that case, the Public
Information Officer has an opportunity to
establish that he acted reasonably and
diligently.
9. While dealing with Section 20(1) of the Act of
2005 the Supreme Court in the matter of Manohar
S/o Mnikrao Anchule Vs. State of Maharashtra
and another1 has held as under:
"15. State Information Commissions
exercise very wide and certainly quasi
judicial powers. In fact their functioning
is akin to the judicial system rather than
the executive decision making process. It
is a settled principle of law and does not
require us to discuss this principle with
1 (2012) 13 SCC 14
any elaboration that adherence to the
principles of natural justice is mandatory
for such Tribunal or bodies discharging
such functions.
16. The State Information Commission has
been vested with wide powers including
imposition of penalty or taking of
disciplinary action against the employees.
Exercise of such power is bound to
adversely affect or bring civil
consequences to the delinquent. Thus, the
provisions relating to penalty or to penal
consequences have to be construed
strictly. It will not be open to the Court
to give them such liberal construction
that it would be beyond the specific
language of the statute or would be in
violation to the principles of natural
justice.
17. The State Information Commission is
performing adjudicatory functions where
two parties raise their respective issues
to which the State Information Commission
is expected to apply its mind and pass an
order directing disclosure of the
information asked for or declining the
same. Either way, it affects the rights of
the parties who have raised rival
contentions before the Commission. If
there were no rival contentions, the
matter would rest at the level of the
designated Public Information Officer or
immediately thereafter. It comes to the
State Information Commission only at the
appellate stage when rights and
contentions require adjudication. The
adjudicatory process essentially has to be
in consonance with the principles of
natural justice, including the doctrine of
audi alteram partem. Hearing the parties,
application of mind and recording of
reasoned decision are the basic elements
of natural justice. It is not expected of
the Commission to breach any of these
principles, particularly when its orders
are open to judicial review. Much less to
Tribunals or such Commissions, the Courts
have even made compliance to the principle
of rule of natural justice obligatory in
the class of administrative matters as
well.
22. We may notice that proviso to Section
20(1) specifically contemplates that
before imposing the penalty contemplated
under Section 20(1), the Commission shall
give a reasonable opportunity of being
heard to the concerned officer. However,
there is no such specific provision in
relation to the matters covered under
Section 20(2). Section 20(2) empowers the
Central or the State Information
Commission, as the case may be, at the
time of deciding a complaint or appeal for
the reasons stated in that section, to
recommend for disciplinary action to be
taken against the Central Public
Information Officer or the State Public
Information Officer, as the case may be,
under the relevant service rules. Power to
recommend disciplinary action is a power
exercise of which may impose penal
consequences. When such a recommendation
is received, the disciplinary authority
would conduct the disciplinary proceedings
in accordance with law and subject to
satisfaction of the requirements of law.
It is a 'recommendation' and not a
'mandate' to conduct an enquiry.
'Recommendation' must be seen in
contradistinction to 'direction' or
'mandate'. But recommendation itself vests
the delinquent Public Information Officer
or State Public Information Officer with
consequences which are of serious nature
and can ultimately produce prejudicial
results including misconduct within the
relevant service rules and invite minor
and/or major penalty.
23. Thus, the principles of natural
justice have to be read into the
provisions of Section 20(2). It is a
settled canon of civil jurisprudence
including service jurisprudence that no
person be condemned unheard. Directing
disciplinary action is an order in the
form of recommendation which has far
reaching civil consequences. It will not
be permissible to take the view that
compliance with principles of natural
justice is not a condition precedent to
passing of a recommendation under Section
20(2)."
10. The penalty provisions under Section 20 of the
Act of 2005 is only to sensitize the public
authorities that they should act with all due
alacrity and not hold up information which a
person seeks to obtain. It is not every delay
that should be visited with penalty. If there is
a delay and it is explained, the question will
only revolve on whether the explanation is
acceptable or not (See State of Punjab and
others Vs. State Information Commissioner,
Punjab and another2).
11. The order is penalty for failure is akin to
action under Criminal Law. It is necessary to
ensure that the failure to supply the
information is either intentional or deliberate.
Unless and until it is borne on record that any
officer against whom order of penalty for
failure is sought to be levied and had occasion
to comply with the order, and has no explanation
or excuse available worth satisfying the forum,
possess the knowledge of the order to supply
information, an order of penalty cannot be
2 2010 SCC OnLine P&H 3275
levied (See A.A. Parulekar Vs. Goa State
Information Commission3).
12. Reverting to the facts of the present case in
light of the principle of law laid down by the
Supreme Court in the aforesaid judgments, it is
quite vivid that the second appellate
authority/respondent No. 1 finding that the
requisite information has not been supplied to
respondent No. 4, issued notices to the
petitioner by order dated 22/12/2012 (Annexure
P/15) and fixed the matter for 23/01/2013 and it
is the case of the petitioner that the notices
were served to him on 23/01/2013 itself and
therefore, he could not appear before the
appellate authority as at that time he was
transferred from Durg to Bilaspur and on the
next date when he informed the Commission about
his receipt of notices on 23/01/2013 and prayed
and thereafter, all of a sudden notice dated
27/02/2013 was received by him directing him to
deposit the penalty of Rs. 25,000/ separately
in three cases. As such, the impugned order
dated 23/01/2013 (Annexure P/1) is in teeth of
provisions contained under Section 20(1) of the
3 2010 (1) Mh.L.J.
Act of 2005. The petitioner has not been
afforded reasonable opportunity to explain his
case as to why requisite information was not
supplied to respondent No. 4. Accordingly, the
impugned order dated 23/01/2013 (Annexure P/1)
to the extent of imposing the penalty of
Rs. 25000/ upon the petitioner passed in the
all the three appeals is hereby set aside. It is
made clear that the portion of the impugned
order directing requisite information to be
supplied to respondent No. 4 free of cost has
not been interfered by this Court.
13. These writ petitions are allowed to the extent
indicated hereinabove. No cost(s).
Sd/
(Sanjay K. Agrawal)
Judge
Harneet
