Bhagwat Marandi vs The State Of Jharkhand Through Its ...
2023 Latest Caselaw 1804 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                              W.P. (C) No. 1958 of 2012

              Bhagwat Marandi, son of late Jasai Marandi, resident of village-
              Hirapur, P.S.- Shikaripara, District- Dumka
                                                           ...     ...     Petitioner
                                        Versus
              1. The State of Jharkhand through its Chief Information
                 Commissioner, State Information Commission, Engineering
                 Hostel, P.O. & P.S.- Dhurwa, Ranchi
              2. State Information Commission, Engineering Hostel, P.O. & P.S.-
                 Dhurwa, District- Ranchi
              3. Shakeel Ahmad, Advocate son of not known, Civil Court, Pakur,
                 P.O.- Pakur, P.S. Pakur (T), District- Pakur
                                                     ...        ...     Respondents
                                        ---

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

              For the Petitioner        : Mr. Rajeeva Sharma, Sr. Advocate
                                        : Mr. Ritesh Kumar, Advocate
              For the Respondents       : Mr. Sanjoy Piprawall, Advocate
                                        : Mr. Kunal Chandra Suman, Advocate
              For the Private Resp.     : None
                                        ---

14/28.04.2023        Heard the learned counsel for the parties.

2. This writ petition has been filed for the following reliefs:

"A. This Hon'ble Court may be pleased to quash the order dated 4.11.2011 passed by State Information Commission in complaint case no. 176/2011, whereby the commission, in exercise of its power under section 20 of the Right to Information Act, 2005 imposed fine of Rs. 25,000/- and also directed for initiation of departmental proceeding against the petitioner.

B. This Hon'ble Court may be pleased to hold and declare that the impugned order dated 4.11.2011 is liable to be quashed in view of the following:-

(a) The impugned order is in the teeth of section 8(3) of the Right to Information Act, 2005 as in the instant case law mandates the petitioner not to furnish information to Shakeel Ahmad, as the information sought for by him is relating to that occuence which happened more than 20 years before;

b) The impugned order (Annexure- 8) is hit by the principle of resjudicata inasmuch as in this case, vide order dated 17.9.2010, although the matter relating to the death/post mortem of Pairu Ravidas stood finally concluded by State Information Commission, yet for second time, respondent Sakeel Ahmed, for extraneous consideration and with sinister design, got this matter re-agitated once again by filing directly to the State Information Commission complaint bearing no. 176/2011 asking all the questions relating to the death of Pairu Ravidas, on 30.3.90 which matter had already stood concluded by the Commission vide its order dated 17.9.2010 (Annexure- 4) and, therefore, the impugned order dated 4.11.2011 is hit by the principle of res-judicata;

c) The impugned order is also not sustainable in the eye of law because of the fact that the same is suffering from the vice of jurisdictional error inasmuch as the State Information Commission has no power to hear and dispose of the matter directly, especially

when Shakeel Ahmad did not avail the opportunity of filing application firstly to Public Information Officer and then to 1st Appellate Authority;

(C) Pending final hearing of this application, the respondent be restrained to recover Rs. 25,000/- from the pocket of the petitioner and that respondent be further restrained not to initiate any departmental proceeding against the petitioner and that the operation of the impugned order be stayed during the pendency of this writ application, as it is learnt that in compliance to the impugned order, steps are being taken for initiating departmental enquiry against the petitioner."

Arguments on behalf of the Petitioner

3. Learned senior counsel for the petitioner has raised following points:

(i) Respondent no.3 has not exhausted the remedy of appeal therefore the petition was not maintainable.

(ii) The application seeking information was vague, no information can be furnished on vague application.

(iii) The application seeking information filed by the advocate was repetitive application.

(iv) The application did not disclose that the advocate was acting as an advocate on behalf of the person who was given the required information earlier.

(v) In case the information sought for is taken to be seeking information in individual capacity, they the information sought for was a third-party information and in such circumstances no information could have been directed to be furnished without seeking consent of the third party.

(vi) The respondent No. 3 never approached the appellate authority and straightaway approached the State Information Commission and accordingly the petition before the State Information Commission itself was not maintainable.

4. The learned senior counsel has submitted that the application seeking information itself was vague. The name of the person whose post-mortem report was sought for, was not mentioned and in the later portion where the name of Pairu Ravidas- deceased was mentioned, his father's name was not mentioned. The learned senior counsel submits that this aspect of the matter was brought to the notice of the Information Commission also but the same has not been considered

while passing the impugned order. The learned counsel submits that no information can be furnished on vague application.

5. It is submitted that earlier one Complaint case No. 179/2010 was instituted before the Information Commission seeking the same information which is involved in the present case which was also filed through the advocate (Respondent no.3) of Ratu Ravidas, who is the information seeker of the present case. The post-mortem report of the son of Ratu Ravidas, who is said to have expired on 30.03.1990, was not available and this intimation was forwarded to Ratu Ravidas through the Advocate (respondent No. 3). On account of the fact that no further objection was raised, the Complaint Case No. 179/2010 was dropped vide Memo dated 20.09.2010 (Annexure-4).

6. The learned senior counsel submits that a fresh application was filed on 12.01.2011 seeking the same information and this time by the Advocate (respondent No. 3) in his individual capacity and the information having not been received, the complaint was filed directly before the State Information Commission without exhausting the remedy of appeal provided under section 19 of the Act.

7. As soon as direction was passed by the learned Information Commission, the information was furnished stating that the post- mortem report is not available and it cannot be furnished, but the learned Commission has passed the impugned order on the ground that that there was delay in tendering such information.

8. From perusal of the application seeking information, it appears that the same was filed in the individual capacity of the Advocate. It was not mentioned in the application that the respondent no.3 was seeking information on behalf of his client. The learned senior counsel has submitted that as per the provision of law in order to give 3 rd party information, the 3rd party is required to be noticed. The learned senior counsel submits that even that step was not taken by the learned Commission before directing the petitioner to furnish information to the Respondent No. 3.

Arguments on behalf of State Information Commission

9. Learned counsel appearing on behalf of the respondent-State Information Commission has submitted that in terms of the provisions

of Section 18 of the Right to Information Act, 2005, the persons seeking information could have directly approached the State Information Commission, if the information is not provided in terms of Section 7 and it is not necessary to file appeal under Section 19 of the Act and then approach the State Information Commission for seeking information. The learned counsel has also submitted that either the person seeking information could have approached the State Information Commission by filing a second appeal or straightaway could have filed a complaint case. The learned counsel submits that in the present case, a complaint case was filed which was maintainable. The learned counsel has relied upon the judgement passed by the Hon'ble Supreme Court reported in AIR 2012 SC 864 (Chief Information Commissioner & Anr. Vs. State of Manipur & Anr.) dealing with with interpretation of Section 18 and 19 of the Right to Information Act, 2005, and submits that it has been held that the information seeker can directly approach the State Information Commission on account of non-furnishing of information or furnishing of incomplete or misleading information and it was not necessary for him to exhaust the remedy of appeal under section 19 of the aforesaid Act of 2005.

10. So far as the application seeking information is concerned, the learned counsel has not been able to show anything from such application that the respondent No. 3 (the Advocate) was seeking information on behalf of any of his client. The learned counsel submits that the application filed by the advocate itself indicated that the information sought for was for his client.

11. From perusal of the records submitted by the learned counsel for the respondents, it appears that an objection was also raised before the State Information Commission that the information sought for through the application was vague. An order to that effect was drawn on 05.09.2011, wherein it was recorded that the information which was sought for by the private respondent was vague.

12. The learned counsel has submitted that the impugned order imposing punishment on the petitioner has been passed only on account of the reason that the petitioner did not act as per the timeline

provided under the Right to Information Act and the impugned order has not gone into the merits of the case. The learned counsel submits that the petitioner having not followed the timeline as provided under Right to Information Act, the impugned order does not call for any interference.

13. The learned counsel has relied upon a judgment passed by this Court on 2nd July, 2019 in W.P. (C) No. 1924/2019.

14. The records from the office of State Information commission have been produced by the learned counsel for the respondents. Findings of this Court

15. In the judgment passed by the Hon'ble Supreme Court reported in AIR 2012 SC 864 (Chief Information Commissioner & Anr. Vs. State of Manipur & Anr.), the scope of power of the Information Commission under Section 18 and 19 of Right to Information Act has been elaborately considered. The background of the said case was that an application under Section 6 of the Act was filed seeking information from the information officer and upon not receiving any response, a complaint was filed by the information seeker under Section 18 of the Act before the State Chief Information Commissioner, who directed the information officer to furnish information within 15 days. Such order was challenged in a writ petition which was dismissed. The appellate court held that under Section 18 of the Act, the Commissioner has no power to direct the information officer to furnish information and also held that such a power has already been conferred under Section 19(8) of the Act on the basis of exercise of power under Section 19 only. The direction to furnish information was held to be without jurisdiction and direction was issued to dispose of the complaint in accordance with law.

16. The Hon'ble Supreme Court considered various provisions of Right to Information Act and in particular Sections 18 and 19 and formulated the question which fell for consideration i.e., the jurisdiction, if any, of the Information Commissioner to direct disclosure of information in exercise of powers under Section 18 of the Act. The view taken by the Hon'ble Division Bench of the High Court was upheld. The Hon'ble Supreme Court held that the

Commissioner, while entertaining complaint under Section 18 had no jurisdiction to pass an order directing to provide information and further held that after having applied for information under Section 6 and not having received any reply thereto, it must be deemed that the information was refused. Such situation was covered by Section 7 of the Act and the remedy for such a person is provided under Section 19 of the Act.

17. Paragraph 30 to 32 of the aforesaid judgment is quoted as under: -

"30. It has been contended before us by the respondent that under Section 18 of the Act the Central Information Commission or the State Information Commission has no power to provide access to the information which has been requested for by any person but which has been denied to him. The only order which can be passed by the Central Information Commission or the State Information Commission, as the case may be, under Section 18 is an order of penalty provided under Section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide.

31. We uphold the said contention and do not find any error in the impugned judgment of the High court whereby it has been held that the Commissioner while entertaining a complaint under Section 18 of the said Act has no jurisdiction to pass an order providing for access to the information.

32. In the facts of the case, the appellant after having applied for information under Section 6 and then not having received any reply thereto, it must be deemed that he has been refused the information. The said situation is covered by Section 7 of the Act. The remedy for such a person who has been refused the information is provided under Section 19 of the Act. ................"

18. The Hon'ble Supreme Court held in paragraph-37 of the judgment that Section 18 and 19 of the Act serve two different purposes and lay down two different procedures and they provide two different remedies and one cannot be substitute for the other. It was also held in paragraph 35 that the nature of power under Section 18 is supervisory in character, whereas procedure under Section 19 is an appellate procedure and a person who is aggrieved by refusal in issuing the information which had sought for can only seek redress in the manner provided in the statute, namely, by following the procedure under Section 19. The Hon'ble Supreme Court therefore

was of the opinion that Section 7 read with Section 19 provides a complete statutory mechanism to a person who is aggrieved by refusal to receive information. The contention that the information can be assessed through Section 18 was rejected in view of the express provision of Section 19 of the Act. The Hon'ble Supreme Court also held in paragraph 43, that a right to appeal is always a creature of statute and therefore, when a statute confers such a right of appeal that must be exercised by a person who is aggrieved by reason of refusal to be furnished with information. This case is to be examined in the light of the law laid down by the Hon'ble Supreme court in the aforesaid judgement i.e., AIR 2012 SC 864 (Chief Information Commissioner & Anr. Vs. State of Manipur & Anr.).

19. The records reveal that on 15.01.2010, Ratu Ravidas had applied for a copy of the post mortem report of his son-Pairu Ravidas under Right to Information (RTI) stating that the post mortem of his was conducted on 30.03.1990. In the application, Ratu Ravidas had furnished the address of the respondent No. 3 as his Advocate. When no information was furnished, Ratu Ravidas filed a complaint directly before the Chief Information Commissioner, Jharkhand, Ranchi which was numbered as Complaint Case No. 179/2010. The records reveal that certain information was furnished while the matter was pending before the Chief Information Commissioner and opportunity was given to the complainant to file any petition, but in spite of grant of opportunity, no objection was filed and consequently vide Memo No. 1872 dated 20.09.2010, the case was dropped.

20. Thereafter, another application dated 12.01.2011 seeking the same information was filed by the respondent No. 3 (the Advocate) but noting has been mentioned in the application as to for whom the Respondent no.3 was seeking information. In the opening paragraph, the name of Pairu Ravidas (deceased) was not mentioned and only his father's name i.e. Ratu Ravidas was mentioned. However, in the body of the application, the name of Pairu Ravidas was mentioned and certain information in connection with the post mortem report was sought for.

21. When no information was given, the respondent No. 3 filed a complaint directly before the Chief Information Commissioner, Jharkhand, Ranchi with a prayer to grant of information and also for passing appropriate order of penalty for non-furnishing of the required information.

22. The said case was numbered as complaint Case No. 176/2011. Admittedly, the remedies of first appeal as provided under Section 19 of the Right to Information Act was not availed and straightaway the complaint was filed.

23. An objection was also raised before the State Information Commission that the information sought for through the application was vague. An order to that effect was drawn on 05.09.2011, wherein it was observed by the Chief Information Commissioner that the information which was sought for by the private respondent was vague. Further, the State Information Commission passed order to send the information to the complainant through registered post and it was also observed that upon receipt of the information, the complainant, if so desire, could file his objection. Consequently, the next date fixed was 26.09.2011.

24. On 26.09.2011, the Chief Information Commission observed that the order dated 05.09.2011 was not complied and directed the Public Information Officer to show cause as to why penalty be not imposed. The Public Information Officer was again directed to send the required information to the Information seeker within two weeks. The next date was fixed on 04.11.2011.

25. In the meantime, letter No. 2068 dated 29.10.2011 was sent to the respondent No. 3 annexing a copy of the letter No. 365 dated 29.10.2011 mentioning that the information was not available and therefore, the same cannot be furnished. A copy of the aforesaid two letters bearing No. 2068 and 365, both dated 29.10.2011 have been found in the records received from the State Information Commission. A Memo No. 1979 dated 17.10.2011 was also sent to the private respondent through speed-post intimating about the non-availability of information.

26. On 04.11.2011 the petitioner had filed his show cause. It has been recorded in the impugned order dated 04.11.2011 that the petitioner had mentioned that when the charge was given to the petitioner, the relevant records were not handed over and therefore, the information could not be furnished; the concerned person had retired and intimation regarding non-availability of information was given to the complainant through registered post. However, by the impugned order dated 04.11.2011, penalty has been imposed to the extent of Rs. 25,000/- and direction for taking disciplinary proceedings has also been issued by recording that the complainant was not provided the information within 30 days in spite of application dated 12.01.2011 and when show cause was issued on 26.09.2011, it was intimated to the information seeker regarding the non-availability of information. While imposing the penalty, it was observed that the petitioner has purposely violated the provisions of the Right to Information Act. This court also finds that on 05.09.2011, the Chief Information Commissioner had recorded that the initial application seeking information was vague, but in the final order penalty was imposed for not furnishing the information pursuant to the initial application dated 12.01.2011.

27. This Court finds from the records that a letter No. 1662 dated 04.09.2011 was addressed to the Secretary, Information Commission enclosing another letter dated 04.09.2011 mentioning that time was being consumed for looking for the old records relating to 30.03.1990. Along with the letter dated 04.09.2011 various charge report was also annexed and a letter was also issued to the Superintendent, Sadar Hospital, Sahebganj stating that at the time of taking charge, the relevant documents in connection with deceased person were not provided.

28. This Court finds that on 26.09.2011, show-cause was issued alleging non-compliance of order dated 05.09.2011 coupled with direction to furnished the required information to the information seeker but impugned order has been passed for non-furnishing of information within 30 days in spite of initial application dated 12.01.2011 filed before the Public Information Officer for which no

show cause was ever issued. Admittedly, prior to passing of the impugned order the information seeker was intimated that the required information cannot be furnished on account of non-availability of records.

29. This Court also finds that since the required information was not available, the Commission was informed that time was being taken for looking for the records and ultimately, it was communicated to the complainant that no information can be furnished on account of non- availability of records. This Court also finds that in order to inform that the records are not available, the records are required to be searched and it was absolutely bona fide on the part of the petitioner to take time for the said purpose. It further appears that the finding of the Information Commission that the petitioner had not furnished the information purposely is perverse and cannot be sustained in the eyes of law.

30. This Court also finds that the respondent No. 3 filed complaint seeking information directly before the State Information Commission without exhausting the alternative remedy of appeal as provided under Section 19 of the Right to Information Act. The prayer seeking information directly to the State Commission by filing a complaint without exhausting the appellate remedy was itself not maintainable.

31. This Court finds that when the respondent No. 3 could not get the required information and did not receive any reply, then the same would be deemed to be rejected of his application under Section 7 and therefore, the remedy was available to the information seeker in terms of appeal under Section 19 of the Information Act. Admittedly, the Respondent No. 3 did not file any appeal and filed a complaint straightaway before the learned Commission making two prayers; one was to direct the information officer to furnish information which was not maintainable before the learned State Commission as the petitioner had not availed the remedy and first appeal under Section 19 of the Act and further a prayer was made to take action for non-furnishing of information. This Court further finds that the learned Commission had passed the order dated 05.09.2011 directing the petitioner to furnish information. This Court is of the considered view that such direction

could not have been passed by the Chief Information Commission in a direct complaint which was numbered as Complaint Case No. 176/2011 which at best was referrable to section 18 of the Act.

32. This Court further finds that another order dated 26.09.2011 was passed by recording that in spite of order dated 05.09.2011, the petitioner did not furnish the information to the information seeker and on account of non-furnishing of information, a show cause was issued to the petitioner as to why penalty be not imposed and a further direction was issued to furnish the information through speed post. Ultimately vide order dated 04.11.2011, penalty was imposed upon the petitioner to the extent of Rs. 25,000/- under Section 20(i) and also a recommendation was made for initiation of departmental proceeding.

33. This Court finds that the learned State Commission did not issue any show cause notice for imposition of penalty upon the petitioner alleging non-furnishing of information pursuant to initial application dated 12.01.2011. Rather the show cause notice was issued on account of non-furnishing of information pursuant to the order dated 05.09.2011 passed by the State Commission directing the petitioner to furnish the information. This Court also finds that the records indicate that the post-mortem report could not be furnished as it was not available and such information/intimation was furnished to the respondent No. 3. This Court also finds that the respondent No. 3, who is an Advocate, had filed an application for furnishing of information, but did not disclose as to whom he was representing and, on whose behalf, he was seeking the information. This Court also finds that the father of the deceased, who had earlier filed application seeking information, was furnished the information and he had no surviving grievance and therefore, the complaint case filed by him was ultimately closed as he did not express any dissatisfaction regarding the information so furnished to him, in spite of opportunity given in the earlier case being Complaint Case No. 179/2010.

34. This Court also finds that the Hon'ble Supreme Court in the aforesaid judgment AIR 2012 SC 864 (Chief Information Commissioner & Anr. Vs. State of Manipur & Anr.) has held in

paragraph 30 that before an order of penalty is passed under Section 20, the Commission must be satisfied that the conduct of the Information Officer was not bona fide. In the present case, the information sought for in the year 2011 was old information relating to the year 1990 and the information was not available and consequently while furnishing the information, it was simply indicated that the records were not available. In the aforesaid facts and circumstances, it cannot be said that the act of the information officer was not bona fide. Further, the initial complaint i.e., 11.01.2011, in connection with which the penalty has been imposed, was itself vague as already recorded by the learned Chief Information Commissioner in order dated 05.09.2011.

35. In view of the aforesaid findings, the impugned order imposing the penalty against the petitioner cannot be sustained in the eyes of law, which is hereby set-aside.

36. This writ petition is accordingly allowed.

37. Pending interlocutory application, if any, is closed.

38. Let the records received from the Commission be handed over to the learned counsel for the State Information Commission.

(Anubha Rawat Choudhary, J.) Mukul