Bishwambhar Choubey vs The State Of Jharkhand
2022 Latest Caselaw 4856 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI

                           W.P.(C) No. 6035 of 2013
 Bishwambhar Choubey, son of Late Baldev Kishore Choubey, residing at
 Mohalla Gilan Para, P.O., P.S. and District-Dumka.
                                                     ... ... Petitioner
                                   Versus
 1. The State of Jharkhand.
 2. The Chief Information Commissioner, Jharkhand State Information
    Commission, P.O. & P.S. Dhurwa, District-Ranchi (Jharkhand).
 3. Anup Kumar Ray, son of not known, resident of Pardih Tata Purulia
    Road, P.O. Kapali, P.S. Mango, Jamshedpur, District-East Singhbhum.
                                                         ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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 For the Petitioner       : Mr. K.K. Ojha, Advocate
 For the Resp.-State      : Mr. Rahul Saboo, GP-II
                            Mr. Abhilash Kumar, AC to GP-II
 For the Resp.-JSIC       : Mr. Sanjoy Piprawall, Advocate
                            Mr. Rakesh Ranjan, Advocate
                          -----------
               th
 11/Dated: 05 December, 2022

1. The instant writ petition is under Article 226 of the Constitution of India, whereby and whereunder, the order dated 27.07.2012 passed in Appeal No. 1487 of 2011 by the State Information Commission is under challenge wherein penalty of Rs. 20,000/- has been imposed in exercise of power conferred under Section 20(1) of the Right to Information Act, 2005 (hereinafter referred to as the Act, 2005) to be realized from the salary of the petitioner in four equal installments @ Rs.5,000/- per month.

2. It is the case of the petitioner that while posted as Executive Engineer was also assigned with the duty to function as the Public Information Officer under the Right to Information Act, 2005.

The writ petitioner while posted as such, received application by the respondent no.3 seeking certain information as would appear from said application appended at page-21 which is part of Annexure-1 series.

The information so required since has not been supplied, therefore, the remedy available under the Act as under first proviso to Section 19 of the Act, 2005 has been invoked by filing an appeal in the

nature of first appeal but the same having been rejected, second appeal was preferred before the State Information Commission in view of the provision of Section 19 (3) of the Act, 2005.

The complaint made before the Commission that although the information required to be supplied as per the mandate of the statute as under Section 7 of the Act, 2005 is to be supplied within the period of 30 days but the same has not been supplied, therefore, the respondent no.3 was compelled to prefer second appeal before the State Information Commission.

The State Information Commission has issued notice upon the petitioner calling upon as to why penalty be not imposed in exercise of power conferred under Section 20(1) of the Act, 2005.

The petitioner has responded to the aforesaid notice but the same, according to the petitioner, has not properly been considered and the order has been passed on 27.07.2012 holding the petitioner guilty of the non-compliance of the information required to be furnished to the respondent no.3, therefore, the penalty of Rs.20,000/- has been imposed.

The petitioner being aggrieved with the said order is before this Court by filing the instant writ petition.

3. Mr. K. K. Ojha, learned counsel for the petitioner has tried to impress upon the Court by referring to a document appended at page-20 of Annexure-1 series which is a letter bearing No. 278 dated 27.04.2011 and has submitted that the Commission has not appreciated the fact in right perspective since the information sought for by the respondent no.3 vide application dated 26.04.2011 has been furnished on the following day, i.e., on 27.04.2011.

It has been submitted by referring to page-23 of the Annexure-1 series that the aforesaid information was supplied by way of certificate of posting which has been appended therein.

4. Learned counsel for the petitioner has also referred to the communication dated 23.12.2011 appended as Annexure-2 to the writ petition and has submitted that even on 23.12.2011 the said information was supplied to the respondent no.3.

5. Learned counsel for the petitioner further submits that not only that information was supplied on 27.04.2011 but thereafter also information was supplied as would appear from the communication dated 16.03.2012 appended as Annexure-3 to the writ petition.

6. Learned counsel for the petitioner, in the backdrop of the aforesaid submission, supported by the relevant documents, has contended that the order passed by the State Information Commission requires interference by quashing and setting it aside.

7. Per contra, Mr. Sanjoy Piprawall, learned counsel for the State Information Commission has vehemently opposed the aforesaid ground by making submission that there is no error in the order passed by the State Information Commission since the Commission has come to conclusive finding after going across the records that the information which was sought for by the respondent no.3 on 26.04.2011 admittedly was not supplied within the statutory period as mandated under Section 7 of the Act, 2005.

It has been contended that the petitioner is trying to impress upon the Court by referring to the communication dated 27.04.2011 by which the information so desired by the respondent no.3 said to have been supplied through certificate of posting but the certificate of posting is not a valid mode of transfer being not permissible by the Post and Telegraph Department.

It has further been contended by rebutting the contention raised by the petitioner about the supply of information vide letter no. 768 dated 23.12.2011 wherein the reference of the letter no.278 dated 27.04.2011 has also been made by which the petitioner claims that the information so desired, has already been sent through certificate of posting, is also not fit to be accepted by taking into consideration the content of the said letter wherein there is no reference of supply of the information sought for by the respondent no.3.

It has also been contended that even the letter dated 23.12.2011 is treated to be correct, the same is also beyond the period of 30 days, as such, there is delay in supplying the information so desired by the respondent no.3.

So far as the contention about information furnished vide letter dated 16.03.2012 is concerned, Mr. Piprawall, learned counsel for the State Information Commission has submitted that the same is being after the expiry of the period of 30 days, as such, the delay caused in supply of the information is not acceptable.

It has further been contended by referring to the impugned order that the State Information Commission has taken into consideration that the information has been furnished but after due delay and that led the Commission to impose penalty after taking into consideration the recourse of the provision as contained under Section 20(1) of the Act, 2005 as also by complying the condition to provide opportunity of being heard and in that view of the matter, the order passed by the State Information Commission cannot be said to suffer from error.

8. This Court has heard the learned counsel for the parties, perused the documents available on record as also the impugned order which is the subject matter of the instant writ petition.

9. The order dated 27.07.2012 appended as Annexure-4 passed by the State Information Commission is under challenge which has been passed in exercise of power conferred under Section 20(1) of the Act, 2005, whereby and whereunder, penalty of Rs.20,000/- has been imposed to be recovered in four equal installments @ Rs.5,000/- per month from the salary of the writ petitioner. In this context, reference of Section 20 of the Act, 2005 is required to be made, which reads 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 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 fumishing 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 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."

10. It is evident from Section 20(1) that the statute provide power to the commission to deal in a situation where the information so desired by the information seeker under the Act, 2005 if supplied with delay, how to deal with such information officer by way of deterrent measure so that the object and intent of the Act be achieved in its letter and spirit.

Section 20(1) confers powers upon the State Information Commission to impose penalty maximum to Rs.25,000/- but before imposing such penalty, sufficient and adequate opportunity of hearing is required to be provided to the concerned public information officer.

11. It is not the case of the petitioner that he has not been provided with adequate and sufficient opportunity of hearing before resorting to the provision of Section 20(1) of the Act, 2005 rather the case is that there is no latches committed on the part of the petitioner since the information so desired by the respondent no.3 has been supplied within the statutory period as mandated under Section 7 of the Act, 2005.

12. The petitioner, in order to demonstrate that fact, has taken the plea that the application has been filed on 26.04.2011 seeking certain information from the Public Information Officer, the petitioner herein, discharging his duty as Public Information Officer attached to the post of Executive Engineer of the concerned branch and the information so desired has already been supplied. So far as in some of the information, documents was required to be supplied, for which the information seeker was communicated to deposit certain amount so that the cost to be incurred in photocopy be realized and documents be supplied.

13. The aforesaid communication dated 27.04.2011 shown to have been sent through certificate of posting as would appear from page-22 of the writ petition, which is part of Annexure-1 series.

14. The question which requires consideration is as to whether the mode of communication through certificate of posting can be treated to be valid mode of transfer in the eyes of law or not?

15. The factual aspect is not in dispute so far as it relates to the decision of the department of Post and Telegraph is concerned but as per the Gazette Notification No. 58(E) dated 31.01.2011 the certificate of posting is no more the mode of transfer. The question is that when the parent department, i.e., Post and Telegraph Department, has come out with a resolution by way of policy decision not to transfer any communication through certificate of posting then how such type of posting has been issued by the postal department which is the matter of concern and requires enquiry.

16. Since the mode of transfer through certificate of posting showing the compliance of the information to be supplied to the respondent no.3 is the main argument of the petitioner justifying the action which he has performed while acting as a Public Information Officer, the same, according to the considered view of this Court, cannot be treated to be genuine after the impermissibility of the mode of transfer through the certificate of posting.

17. This Court has taken into consideration the impermissibility of the mode of transfer as notified vide Gazette Notification No. 58(E) dated 31.01.2011, even then the post office has issued the certificate of posting which certainly is a matter of concern as to when the department of Post and Telegraph has taken a decision holding the mode of transfer by way of certificate of posting to be impermissible then how such certificate of posting has been issued, the same requires enquiry at the end of Department of Post and Telegraph to look into the matter and to deal with the concerned post office regarding such irregularity.

Further, this Court is of the view that the petitioner only in order to make out a case of supply of information within the statutory period of 30 days has tried to impress upon the certificate of posting

issued by concerned post office on 27.04.2011 to justify the stand that the information was supplied within the period of 30 days.

The question is that when there is no mode of transfer of certificate of posting then how such supply of document through the aforesaid mode can be said to be supply of information to the information seeker, therefore, this Court is of the considered view that the stand taken by the petitioner for supply of information vide communication dated 27.04.2011 cannot be said to be the supply of information in the eyes of law.

18. The petitioner further claims that even accepting the mode of transfer was not valid mode of transfer since the information was supplied through communication dated 27.04.2011 through certificate of posting but even thereafter, the information was supplied as would appear from letter dated 23.12.2011 contained in Annexure-2 series at page-23 and also from letter dated 16.03.2012 appended as Annexure-3 to the writ petition.

19. Even accepting the argument advanced on behalf of the petitioner about the letter dated 23.12.2011 or 16.03.2012, this Court, is of the view, so far as the communication dated 23.12.2011 is concerned, that the same cannot be said to be the supply of information sought for by reading the content of that communication.

The question remains that it is the admitted case of the petitioner that the information so desired by the respondent no.3 vide letter dated 26.04.2011 said to have been supplied through certificate of posting, itself is in doubt due to sending the same through certificate of posting then where is the question of accepting the contention referred in the letter dated 23.12.2011.

Further, so far as the letter dated 16.03.2012 is concerned, the same if accepted to be the valid supply of information, then also, it is beyond the statutory period of 30 days.

20. This Court, having discussed the factual aspect, is required to consider the scope of power conferred under Article 226 of the Constitution of India for issuance of writ of certiorari. Reference may be made to the

judgment rendered by the Hon'ble Apex Court in Syed Yakoob vs. Radhakrishnan, A.I.R. 1964 SC 477. Paragraph no.7 of the said judgment is being reproduced as under:

"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.

In Hari Vishnu Kamath vs. Ahmad Ishaque and Ors., AIR 1955 Supreme Court 233, the Hon'ble Supreme Court has held in paragraph no.21 as under:

"With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or

Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari."

In Sawarn Singh and Anr. vs. State of Punjab and Ors., (1976) 2 SCC 868 their Lordships, while discussing the power of writ under Article 226 of the Constitution of India for issuance of writ of certiorari, has been pleased to hold at paragraph nos.12 and 13 as hereunder:

"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra)

13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

In Heinz India (P) Ltd. and Anr. vs. State of U.P. and Ors., (2012) 5 SCC 443 their Lordships have been pleased to hold at paragraph nos.66 and 67 as hereunder:

"66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land.

67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed."

In Thansingh vs. Supdt. of Taxes, A.I.R. 1964 1419 Supreme Court, Hon'ble Supreme Court has been pleased to hold that the High

Court does not jointly determine question which requires elaborate examination of evidence to establish the right to enforce for which the writ is claimed.

In Pepsico India Holding (P) Ltd. vs. Krishna Kant Pandey, (2015) 4 SCC 270 their Lordships, while discussing the scope of Articles 226 and 227 of the Constitution of India in the matter of interference into the finding of the Tribunal, has been pleased to hold by placing reliance upon the judgment rendered in Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447 at para-17 as under:

"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal V. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J, as the learned Chief Justice then was, observed at page 1301 of the report as follows:

The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the

......... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.

This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose V. Commr. Of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:

It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extent to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking that the tribunal functions within the limits of its authority."

In General Manager, Electrical Rengali Hydro Electric Project, Orissa and Others vs. Giridhari Sahu and Ors., (2019) 10 SCC 695 the Hon'ble Apex Court has delved upon the issue about scope of issuance of writ of certiorari by the High Court and has laid down that, if

the finding recorded by the court is erroneous and based upon perversity, the order is fit to be quashed/set aside.

21. The position of law is well settled as per the judgment rendered by the Hon'ble Apex Court as referred hereinabove that the writ of certiorari can be issued by sitting under Article 226 of the Constitution of India only in limited circumstances, i.e., is there is jurisdictional error or there is error apparent on the face of record or there is perversity in the order impugned.

22. The writ petitioner is not questioning that the order dated 27.07.2012either suffers from jurisdictional error or error apparent on the face of record rather the order has been questioned on the ground of perversity, i.e., even though the documents have been supplied and the same has been informed to the information seeker, the same has not been taken into consideration in right perspective.

23. This Court since has discussed the factual in entirety and has come to the conclusion about the very veracity of the letter dated 27.04.2011 treating it to be not a valid communication since it was sent through certificate of posting which is not permissible as per the circular of the Post and Telegraph Department as discussed above, therefore, even accepting the argument of the petitioner that such information was furnished on later dated, i.e., 16.03.2012, then the information sought for vide application dated 26.04.2011 but supplied on 16.03.2012 which is admittedly beyond the period of 30 days, therefore, there is delay in supplying the information so desired by the respondent no.3.

24. The State Information Commission has considered the fact and has come to the conclusion while exercising the power conferred under Section 20(1) of the Act, 2005 imposing the penalty upon the petitioner to the tune of Rs.20,000/- to be recovered in four equal installments from the salary of the petitioner and has considered mainly the conduct of the petitioner that the information was supplied after due delay since the period of information to be furnished is also available under the statute as under Section 7 of the Act, 2005, as such, as per the mandatory provision if any information is being supplied beyond the period of 30 days, the Public Information Officer is to be subjected to penal provision

as provided under Section 20(1) of the Act, 2005 or depending upon the case under Section 20(2) of the Act, 2005 making recommendation for initiation of departmental proceeding.

Although, there is no recommendation to initiate a departmental proceeding but the Commission has come to the conclusive finding that there is delay in supply of information, as such, held the petitioner guilty of non-observance of the statutory mandate.

25. This Court, in that circumstances, is of the view that it is not a case where the extraordinary jurisdiction conferred to this Court under Article 226 of the Constitution of India be exercised by showing interference with the impugned order.

26. In view thereof, the instant writ petition fails and stands dismissed.

27. Pending interlocutory application(s), if any, also stands disposed of.

(Sujit Narayan Prasad, J.) Saurabh/-

A.F.R.