Jharkhand High Court
Raj Maheshwaram vs The State Of Jharkhand on 31 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 7775 of 2012
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Raj Maheshwaram ... ... Petitioner
Versus
1. The State of Jharkhand
2. The Jharkhand State Information Commission through the Chief
Information Commissioner, Ranchi
3. Chintamani Mandal
.... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
For the Petitioner : Mr. Arvind Kumar Choudhary, Advocate
For the Resp. No. 1 : Mr. Shivam Anand Pathak, A.C. to S.C.-III
For the Resp. No. 2 : Mr. Sanjoy Piprawall, Advocate
Order No. 11 Dated: 31.08.2023
The present writ petition has been filed for quashing the
order dated 28.10.2010 (Annexure-2 to the writ petition) passed
by the Information Commissioner, Jharkhand State Information
Commission, Ranchi in Appeal Case No. 1443 of 2008
communicated to the petitioner vide memo no. 6903 dated
11.06.2011, whereby the petitioner has been held guilty of not
supplying the required information to the respondent no. 3 and
punishment under Section 20 (1) of the Right to Information Act,
2005 (in short, "the Act, 2005") has been imposed upon him
directing the concerned department to recover a sum of
Rs. 15,000/- from his salary or any amount due to be paid to him
by the government as well as recommendation has been made to
initiate departmental proceeding under Section 20(2) of the said
Act. Further, the concerned department has been directed to pay
Rs. 35,000/- as compensation to the respondent no. 3 under
Section 19(8)(b) of the Act, 2005.
2. Learned counsel for the petitioner submits that the
petitioner was posted as Block Development Officer, Jamtara vide
notification dated 08.11.2008 and was given additional charge of
Circe Officer, Jamtara for the period from 19.11.2008 to
21.01.2009, from 25.08.2009 to 16.09.2009, from 12.01.2010 to
01.05.2011 and from 08.01.2013 to 27.01.2013. As per office
order as contained in memo no. 1876 dated 14.12.2007 issued by
the Deputy Commissioner, Jamtara, the Head Assistant of the Sub-
Divisional Office, Jamtara and Sub-Divisional Officer, Jamtara were
made Public Information Officer and the appellate authority
respectively of the said office whereas the Circle Inspector and the
Circle Officer were made the Public Information Officer and
appellate authority respectively of the Circle Office, Jamtara.
Subsequently, vide order as contained in memo no. 14 dated
28.05.2010, the Sub-Divisional Officer and the Executive
Magistrate were made Public Information Officer and Assistant
Public Information Officer respectively of the Sub-Divisional Office,
Jamtara whereas the concerned Circle Officer and Circle Inspector
were made Public Information Officer and Assistant Public
Information Officer respectively of the Circle Office, Jamatara.
3. It is further submitted that the respondent no. 3-
Chintamani Mandal had sought certain information under the Act,
2005 from the Public Information Officer, Sub-Divisional Office
Jamtara regarding a 'Chowkidar' of Circle Office, Jamtara namely
Chetu Ray whereupon the concerned Public Information Officer of
the said Office provided the information available in his office.
However, the information regarding service book and photo copy
of nomination roll of Chetu Ray were not provided to the
respondent no. 3 due to non-availability of the said documents in
the Sub-Divisional Office, Jamtara. Thereafter, the respondent
no. 3 filed appeal being Appeal Case No. 1443 of 2008 directly to
the Jharkhand State Information Commission (hereinafter to be
referred as, "the Commission") whereupon notice was issued to
the Public Information Officer of the Sub-Divisional Office, Jamtara
who appeared before the Commission on 26.12.2008 and
thereafter he appeared till January 2010. However, he could not
appear before the Commission on certain dates due to unavoidable
circumstances.
4. It is also submitted that on 19.2.2010, the Sub-Divisional
Officer, Jamtara directed the Public Information Officer of Circle
Office, Jamtara to appear before the Commission on the next
scheduled date fixed in the aforesaid appeal and thereafter, the
Head Assistant of Circle Office, Jamtara appeared before the
commission on 04.03.2010 since the Circle Inspector who was the
Public Information Officer of the Circle Office, Jamtara could not
appear before the Commission due to illness of his wife.
5. Learned counsel for the petitioner further submits that in
the light of office order as contained in memo No. 14 dated
28.05.2010 issued by the Deputy Commissioner, Jamtara, the
petitioner became the Public Information Officer of the Circle
Office, Jamtara as at that point of time, he was holding additional
charge of Circle Officer, Jamtara. The petitioner could not
appear before the Commission on 22.06.2010 due to his illness
although he had authorized the concerned Circle Inspector to
appear before the Commission along with all relevant
information. Thereafter, the petitioner was not communicated
about the dates fixed in the said appeal on 25.8.2010 and
28.10.2010 for his appearance and thus, he could not appear
before the Commission on the said dates. However, the
Information Commissioner passed the impugned order in Appeal
Case No. 1443 of 2008 on 28.10.2010 directing the concerned
department to recover Rs. 15,000/- from the petitioner's salary or
any amount due to be paid to him by the government as well as
recommending to initiate department proceeding with further
direction to the concerned department to pay Rs.35,000/-
as compensation to the respondent no. 3, a copy of which
was communicated to the petitioner vide memo
No. 6903 dated 11.06.2011. Thereafter, the petitioner filed a
review application being Review Case No. 11/2011 before the
Jharkhand State Information Commission, Ranchi in which notice
was issued to respondent no. 3, however the same was
withdrawn vide order dated 23.03.2012.
6. It is also submitted that the information available in the
office of Sub-Divisional Officer, Jamtara had already been provided
to the respondent no. 3, however, so far as the information with
respect to service book and copy of nomination roll of Chetu Rai
was concerned, the same could not be provided to the respondent
no. 3 due to unavailability of the same in the concerned office. At
the time when the application of the respondent no. 3 was filed
under the Act, 2005, one Ganesh Das-Head Assistant of the Sub-
Divisional Office, Jamtara was the Public Information Officer and
as such the penalty imposed upon the petitioner is wholly illegal
and fit to be set aside. The information not provided to the
respondent no. 3 were related to 3rd party information and in view
of Section 11 of the Act, 2005, the 3rd party information could have
been provided only after issuing notice to the concerned 3rd
party. Moreover, no opportunity of hearing was provided to the
petitioner before passing the impugned order.
7. Heard learned counsel for the parties and perused the
materials available on record.
8. The petitioner is aggrieved with the impugned order dated
28.10.2010 passed by the Information Commissioner, Jharkhand
State Information Commission, Ranchi whereby he has been held
responsible for not supplying the required information to the
respondent no. 3 and penalty under Section 20 (1) of the Right to
Information Act, 2005 (in short, "the Act, 2005") has been
imposed upon him directing the concerned department to recover
a sum of Rs. 15,000/- from his salary or against any amount due
to be paid to him by the government as well as recommendation
has been made to initiate departmental proceeding under Section
20(2) of the said Act. Further, the concerned department has been
directed to pay Rs. 35,000/- as compensation to the respondent
no. 3 under Section 19(8)(b) of the Act, 2005.
9. Before coming to the merit of the petitioner's contention,
it would be appropriate to refer the judgment rendered by this
Court in the case of Tarni Prasad Mukhiya Vs. Jharkhand
State Information Commission and Others reported in 2023
SCC OnLine Jhar 1132 wherein it has been held as under: -
"15. On perusal of the provisions of Section 20(1), it would
transpire that the Central Information Commissioner or the
State Information Commissioner, as the case may be, at
the time of deciding any complain or appeal, has to form an
opinion that (i) the Central Public Information Officer or
the State Information Officer, as the case may be, has
without any reasonable cause refused to receive the
application for information (ii) has not furnished the
information within the time specified under sub-section (1)
of Section 7 (iii) malafidely denied the request for
information (iv) has intentionally 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. So
far as Section 20(2) of the Act, 2005 is concerned, the said
conditions are pari-materia to those in Section 20(1),
except that the word 'persistently' has been mentioned in
condition No. (i).
16. In the case of Manohar v. State of Maharashtra, (2012)
13 SCC 14, the Hon'ble Supreme Court has held as under:
--
"15. The 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 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 of the principles of
natural justice."
17. In the case of Chief Information Commissioner v. State
of Manipur, (2011) 15 SCC 1, the Hon'ble Supreme Court
has held that before passing the order of penalty under
Section 20 of the Act, 2005, the Commissioner must satisfy
himself that the conduct of the Information Officer was not
bona fide.
18. Section 20 of the Act, 2005 is to be treated as a harsh
provision and as such before imposing penalty or
recommending for initiation of departmental proceeding,
an opinion has to be formed by the Commission that the
Public Information Officer has not furnished the
information within the time specified without any
reasonable cause. There must be an objective
consideration by the Commission on the basis of the
relevant materials on which the conclusion about such
action is drawn.
19. Since the petitioner was not posted as the Public
Information Officer on the date of making application
under the Act, 2005 by the respondent No. 3 i.e. on
05.08.2014, the conditions Nos. (i) & (ii) shall not apply to
him. So far as other conditions are concerned, the same are
also not proved against the petitioner. It is also not the
case that the petitioner at any point of time has refused to
receive an application seeking information or has not
furnished information within the time frame or has denied
the request for information with malafide intention or has
knowingly given incorrect, incomplete or misleading
information to the respondent No. 3. Moreover, there is no
such allegation against the petitioner that he destroyed the
information which was the subject of the request or he
obstructed in any manner in furnishing the information.
That apart, the Commission in the impugned order has
strongly put reliance on the statement made by the then
Public Information Officer on 20.06.2016 and has also
considered the delay occurred in providing the information
while imposing penalty against the petitioner without
having any concrete evidence to show that the act of the
petitioner, who was assigned the duty of the Public
Information Officer in the month of July, 2017 was not
bonafide.
20. Under the said circumstances, this Court is of the view
that the Information Commissioner while passing the
impugned order of imposing penalty of Rs. 25,000/-
against the petitioner under Section 20(1) and directing his
controlling authority to initiate departmental proceeding
against him under Section 20(2) of the Act, 2005 has
transgressed the provisions of sub-section (1) and sub-
section (2) of Section 20 of the Act, 2005. The observation
made by the Information Commissioner in the said order to
the extent that the petitioner was not deliberately
providing the information to the respondent No. 3 and that
he was misleading the Commission also do not appear to
be correct."
10. In the case in hand, it is evident that the respondent no. 3
filed an application seeking certain third party information under
the Act, 2005 before the PIO, Sub-Divisional Office, Jamtara and at
that point of time, the petitioner was not the Public Information
Officer of the said office, rather, one Ganesh Das, Head Assistant
of Sub-Divisional Office, Jamtara, was the Public Information
Officer. Though, Ganesh Das provided certain information to the
respondent no. 3, however he could not provide the information
regarding service book as well as copy of Nomination Roll of Chetu
Ray (Chowkidar of Circle Office, Jamtara) as the said documents
were not available in Sub-Divisional Office, Jamtara. The
respondent no. 3 having filed appeal before the Commission, a
notice was issued to the Public Information Officer of Sub-
Divisional Office, Jamtara, pursuant to which he appeared before
the Commission. The petitioner became the Public Information
Officer of the said office in terms with the office order as contained
in memo no. 14 dated 28.05.2010 issued by the Deputy
Commissioner, Jamtara as at that time, he was in-charge Circle
Officer, Jamtara.
11. I have gone through the impugned order dated
28.10.2010 passed by the Commission wherein it has been
observed that altogether 18 dates were fixed in Appeal Case No.
1443 of 2008, however the required information were not provided
to the respondent no. 3 during the said period and finally on
21.05.2010, the petitioner was issued show cause notice as the
deemed Public Information Officer-cum-Circle Officer, Jamtara.
Thereafter, the petitioner was given one more opportunity to
appear on 25.08.2010, however he neither provided information to
the respondent no. 3 nor appeared before the Commission on the
said date to defend his case. The petitioner was given last
opportunity to appear on 28.10.2010, however he absented on the
said date also and accordingly the impugned order was passed.
12. The contention of the petitioner is that though
subsequently he was the Public Information Officer of the Circle
Office, Jamtara, however he could not appear before the
Commission on 22.06.2010 due to his illness and thereafter he was
not given any information about the next two dates fixed by
the Commission i.e. 25.08.2010 and 28.10.2010 requiring his
appearance.
13. I am of the view that since the petitioner was not the PIO
during the time the application under the Act, 2005 was filed by
the respondent no. 3 and the period specified under sub-section
(1) of section 7 had already elapsed before he was assigned the
duty of PIO of the concerned office, he cannot be held liable for
non-furnishing of the required information to the respondent no.3
so as to be imposed penalty under Section 20(1) of the Act, 2005.
Moreover, the petitioner had no knowledge about the dates fixed
for his appearance before the Commission i.e. 25.08.2010 and
28.10.2010 and as such the Information Commissioner wrongly
observed that he knowingly did not provide information to the
respondent no. 3 despite availability of the said information with
him. One of the essential ingredients for passing the order under
Sections 20(1) and 20(2) of the Act, 2005 is to provide an
opportunity of hearing to the person against whom the action is
contemplated. However in the present case, it is evident that after
becoming the Public Information Officer of the Circle Office,
Jamtara, the petitioner was informed about only one date i.e.,
22.06.2010 for providing information and on the said date, he
could not appear before the Commission due to his illness. As
such, no opportunity of hearing as mandated under Section 20(1)
and Section 20(2) of the Act, 2005 was granted to the petitioner
before passing the impugned order dated 28.10.2010 and hence
the same vitiates in law.
14. In view of the aforesaid discussion, the order dated
28.10.2010 passed by the Information Commissioner, Jharkhand
State Information Commission, Ranchi in Appeal Case No. 1443 of
2008 is hereby quashed and set aside.
15. The writ petition is, accordingly, allowed.
(Rajesh Shankar, J.)
Ritesh/AFR
