Public Information Officer (SPIO) attached to a college. The
admissions made in 2021 and those admitted to the college.
disclosed. Aggrieved by the decision, the 3rd respondent
however, the same was dismissed, as evidenced by Ext. P4
communication. Therefore, a further appeal was instituted
led to Ext.P8 order being issued by the said authority. While
paragraph 10 of the order. In obedience to the directions, the
thereof, through Ext.P10. In Ext.P10, the 2nd petitioner also
appointment. The 2nd respondent thereafter issued Ext.P11
be heard once more'. On that basis, the matter was heard
provisions of the Act. The 2nd respondent also made certain
procedures were not transparent. Advice to the Government
functioning of the college is also made by the 2nd respondent.
2. It is seeking to challenge Ext.P12 issued as above
that the petitioners have instituted this writ petition.
3. Heard Sri.Kurian George Kannathanam, the
learned Standing Counsel for the 1st respondent.
4. According to Sri.Kannathanam, the impugned order
i. The same amounts to a 'rehearing', for which there is
ii. The same has been issued by the 2nd respondent-
Information Commission.
iii. According to him, the State Information Commis-
iv. He would also rely on Section 19(3) of the Act to con-
v. He would also contend that the levy of penalty under
5. Per contra, Sri.Ajay would state that:
6. I have considered the rival contentions as well as
7. The following issues arise for consideration in this
iv. Is the imposition of penalty under Section 20(1) of
the Act, against the 2nd petitioner, justified?
W.P(C) No.25153 of 2023 2026:KER:10999
v. Are the observations made in Ext.P12 as regards
the affairs in the educational institution, beyond
the scope of the Act?
8. As already noticed, the petitioners contend that the
order at Ext.P12 virtually amounts to a 'rehearing' which is
not visualised under the Act. It is with reference to the
provisions of Section 19 of the Act that the State Information
Commission proceeds to consider an appeal filed before it.
The provisions of sub-section (3) to Section 19 provide for an
appeal to be instituted before the Commission. Sub-section
(6) thereto provides for disposing of the appeal so filed. Sub-
section (8) thereto provides for the powers of the
Commission, including the power to impose penalties
'provided under this Act'. Section 20, providing for penalty
states that the Central Information Commission or the State
Information Commission may, at the time of deciding a
complaint/appeal, also impose a penalty as prescribed
thereunder. The proviso thereto requires the State
W.P(C) No.25153 of 2023 2026:KER:10999
Information Commission to provide an opportunity of hearing
to the SPIO. Therefore, from a reading of Section 20 of the
Act, it is clear that the State Information Commission has to
decide the appeal and thereafter form an opinion as to
whether the SPIO is required to be proceeded against in
accordance with the mandates thereunder. The Act also
requires the SPIO to be provided an opportunity of hearing
after the State Information Commission has decided to invoke
the power under Section 20. In other words, atleast as
regards a penalty under Section 20, the statute visualises
two-tier proceedings. In the first-tier proceedings, the appeal
is considered, deciding to require the public authority to
provide the information called for. It is only thereafter that
the question whether the SPIO has refused either to receive
an application for information or to furnish the information
with mala fide intention can be considered. Therefore, once
the decision is taken on the appeal alone, the question of
invoking the provisions of Section 20(1) arises. It is on that
W.P(C) No.25153 of 2023 2026:KER:10999
basis, while issuing Ext.P8 order, at paragraph 10, the 2nd
petitioner was informed of the proposal to initiate steps under
Section 20(1) for the reasons stated thereunder. After
considering the objections/explanation filed by the 2nd
petitioner, the communication at Ext.P11 has been issued
informing that the explanation offered being unsatisfactory,
the matter requires to be considered again. The phraseology
in Ext.P11 that the appeal is being 'reheard' in the afore
circumstances may not be the correct one. Actually, the
Commission is only proceeding to consider whether the
penalty is required to be imposed under the provisions of the
Act in the subsequent stage of proceedings. It is in the afore
basis that the order at Ext.P12 requires to be understood. In
the light of the afore, I am of the opinion that there was no
'rehearing' and therefore, the first question raised as above
does not require to be answered.
9. In coming to the afore conclusion, I am fortified by
the judgment of this Court in W.P(C) No.30696 of 2008 dated
W.P(C) No.25153 of 2023 2026:KER:10999
16.11.2018, wherein a similar issue was considered by this
Court, finding as under:
"5. With regard to the first argument, it can be seen that
present proceedings leading to order passed under Section 20
is part of the original order passed in the complaint. This order
cannot be segregated from the original order. What was done
by the Chief Information Commissioner was that an
opportunity was given to the petitioner before imposing
penalty."
In the light of the afore, the first challenge raised against the
order at Ext.P12 requires to be rejected, and I do so.
10. The second and third issues arising for
consideration are as to whether the 2nd respondent, who is
only the State Information Commissioner, can act
independently and proceed to impose penalty on the
petitioner. Section 2(k) and (l) of the Act provides for the
definition of the terms 'State Information Commission' and
'State Information Commissioner' as under:
"(k) "State Information Commission" means the State
Information Commission constituted under sub-section
(1) of Section 15;
(l) "State Chief Information Commissioner" and "State
W.P(C) No.25153 of 2023 2026:KER:10999
Information Commissioner" mean the State Chief
Information Commissioner and the State Information
Commissioner appointed under sub-section (3) of
Section 15;"
Therefore, the fact that the statute visualises the State
Information Commission and the State Information
Commissioner separately is beyond any dispute. Section 15
of the Act provides for the constitution of the State
Information Commission. The provisions of Section 15, to the
extent relevant herein, are as follows:
"15. Constitution of State Information Commission.-
(1) Every State Government shall, by notification in the Official
Gazette, constitute a body to be known as the ...............
(name of the State) Information Commission to exercise
the powers conferred on, and to perform the functions
assigned to, it under this Act.
(2) The State Information Commission shall consist of-
(a) the State Chief Information Commissioner, and
(b) such number of State Information Commissioners, not
exceeding ten, as may be deemed necessary.
(3) The State Chief Information Commissioner and the State
Information Commissioners shall be appointed by the
Governor on the recommendation of a committee
consisting of--
(i) the Chief Minister, who shall be the Chairperson of the
committee;
W.P(C) No.25153 of 2023 2026:KER:10999
(ii) the Leader of Opposition in the Legislative Assembly;
and
(iii) a Cabinet Minister to be nominated by the Chief
Minister.
Explanation.- For the purposes of removal of doubts, it is
hereby declared that where the Leader of Opposition in
the Legislative Assembly has not been recognised as such,
the Leader of the single largest group in opposition of the
Government in the Legislative Assembly shall be deemed
to be the Leader of the Opposition.
(4) The general superintendence, direction and management
of the affairs of the State Information Commission shall
vest in the State Chief Information Commissioner who
shall be assisted by the State Information Commissioners
and may exercise all such powers and do all such acts and
things which may be exercised or done by the State
Information Commission autonomously without being
subjected to directions by any other authority under this
Act.
(5) The State Chief Information Commissioner and the State
Information Commissioners shall be persons of eminence
in public life with wide knowledge and experience in law,
science and technology, social service, management,
journalism, mass media or administration and
governance."
Thus, sub-section (1) of Section 15 provides for the
constitution of a body to be known as the State Information
Commission. Sub-section (2) thereto provides that the
W.P(C) No.25153 of 2023 2026:KER:10999
Commission so constituted shall consist of the State Chief
Information Commissioner and the State Information
Commissioners, not exceeding ten. A reading of sub-section
(4) would also show that the State Chief Information
Commissioner can act only for the general superintendence,
directions, and management of the affairs of the Commission.
The State Information Commissioners may also assist the
Chief Information Commissioner in the afore activity.
Therefore, it is the functions mentioned under sub-section (4)
alone that could be carried out by the State Chief Information
Commissioner and the State Information Commissioners
individually.
11. With respect to an appeal provided under Section
19 to the State Information Commission also, the position is
not different as is spelt out under sub-section (3) thereto, as
under:
"(3) A second appeal against the decision under sub-section
(1) shall lie within ninety days from the date on which the
decision should have been made or was actually received, with
W.P(C) No.25153 of 2023 2026:KER:10999
the Central Information Commission or the State Information
Commission:"
Thus, the appeal is to be filed to the State Information
Commission and not to the State Information Commissioner.
Therefore, in my opinion, on a combined reading of Section
15(2) and Section 19(3), an appeal filed before the State
Information Commission is required to be considered and
disposed of by the State Information Commission itself, and
not individually by the State Information Commissioner.
However, since the petitioner has not challenged the first
order at Ext.P8, which is also one passed by the State
Information Commissioner, and the challenge is being limited
only to the second order at Ext.P12, this Court is only
proceeding to consider the vires of the said order.
12. Sri. Ajay, the learned counsel for the Commission,
has sought to rely on the judgment of the Apex Court in
Namit Sharma (supra) as reviewed by the Apex Court in
Union of India v. Namit Sharma (supra). Therefore, the
question arises as to whether Ext.P12 order is to be sustained
W.P(C) No.25153 of 2023 2026:KER:10999
in the light of the afore judgment.
13. In Namit Sharma (supra) Apex Court considered
the challenge raised against the provisions of Section 12(5)
and (6) as well as Section 15(5) of the Act providing for the
constitution of the Central and State Information
Commissions, respectively. Noticing that the provision did not
specify the basic qualifications for being appointed as
Information Commissioner, the Apex Court held that the
knowledge and experience in different fields referred to in the
provision would presuppose a graduate who possesses basic
qualifications in the field concerned. The Apex Court also
went on to hold that the Commission would also require to
work in benches comprising of a judicial member and one
other member in the specified fields mentioned in the statute.
In paragraph 108.8 of the judgment, the Apex Court directed
that henceforth the Commissions shall work in benches of two
members each- one being a judicial member and the other as
an expert member, further holding that the judicial member
W.P(C) No.25153 of 2023 2026:KER:10999
should be a person possessing a degree in law, having a
judicially trained mind and experience in performing judicial
functions. Though this was the ultimate direction issued by
the Apex Court, Sri. Ajay seeks to rely on the observation in
paragraph 105 of the judgment: "such judicial member could
work individually or in benches of two, one being a judicial
member, while the other being a qualified person from the
specified fields to be called an expert member".
14. But in my opinion, the reliance placed on the afore
judgment would not save the situation since admittedly the
afore judgment has been reviewed by the Apex Court in
Union of India v. Namit Sharma (supra), having found that
the directions issued earlier require to be recalled. Therefore,
the Apex Court, after recalling the directions issued earlier,
issued fresh directions under paragraph 39 of the judgment,
of which paragraph 39.6 is also relied on by Sri. Ajay, which
reads as under:-
"39.6. We also direct that wherever Chief Information
W.P(C) No.25153 of 2023 2026:KER:10999
Commissioner is of the opinion that intricate questions of law
will have to be decided in a matter coming up before the
Information Commission, he will ensure that the matter is
heard by an Information Commissioner who has wide
knowledge and experience in the field of law."
In my opinion, the Apex Court only clarified that whenever
intricate questions of law require to be decided, the matter
requires to be considered by a Commissioner who has the
required knowledge in the field of law. The Apex Court did not
have occasion to consider the question as to whether the
appellate power under Section 19(3) read with Section 20(1)
of the Act can be exercised by the State Information
Commissioner when he acts individually. A decision is only
an authority for what it actually decides and it is the essence
of the decision that is to be taken as its ratio and not every
observations made there, as has been observed by the Apex
Court in State of Orissa v. Sudhansu Sekhar Misra and
Others [AIR 1968 SC 647] and Union of India v.
Dhanwanti Devi [(1996) 6 SCC 44]. As already found
under Section 15(2), the constitution of the State Information
W.P(C) No.25153 of 2023 2026:KER:10999
Commission had been categorically laid down as to include
the State Chief Information Commissioner and such number
of State Information Commissioners as deemed necessary.
In the light of the afore, the State Information Commissioner
could not have exercised the power under Section 20(1) of
the Act, leading to the issuance of Ext.P12 order.
15. Sri.Kannathanam, learned senior counsel for the
petitioners, relies on the judgment of a Division Bench of this
Court in Principal, KMCT Medical College and Others v.
Fee Regulatory Committee and Others [2019 (3) KHC
384], wherein this Court considered the question as to
whether the admission and fee regulatory committee for
medical education in Kerala requires all the members to be
present while passing orders. A Division Bench of this Court,
while considering the afore question, found as under:-
"23. Another contention put forward by the counsel for the Writ
Petitioners is that, the impugned orders are all passed by two or
three members of the Committee and not by all the members
thereof sitting together. In some cases, the matter was heard by
two or three members, but the impugned orders are signed by
W.P(C) No.25153 of 2023 2026:KER:10999
five members. None of the orders have been passed by the
Committee with its full quorum. Reliance is placed on the
Division Bench decision of this Court in K.S.F. Dental College
Managements Consortium v. State of Kerala (Supra) particularly
paragraphs 65 to 69 thereof, to point out that S.5(3) of the Act
15 of 2017 that fixed the quorum has been set aside and the
said decision has become final. It is therefore contended that,
the impugned orders are all liable to be set aside.
24. S.5(3) of Act 15 of 2017 had fixed the quorum for meeting
of the AFRC to be four. The Chairperson or in his absence, a
members of the committee elected from among the members
present in the meeting is permitted to preside over the meeting,
as per S.5(2). As per S.3, the Committee is constituted of as
many as ten members of whom as many as five are high
Government officials. The Division Bench has in K.S.F. Dental
College Managements Consortium v. State of Kerala
(Supra) found the composition of the Committee to be unwieldy.
However, S.5(3) that prescribed the quorum to be 4 has been
set aside by the Division Bench as unsustainable. The resultant
position is that, no quorum is prescribed for the meeting of the
Committee. Therefore, all the members thereof would have to
be present.
In my opinion, the principles laid down by the Division Bench
would also apply to the case at hand also. No quorum has
been prescribed under Section 15 of the Act, and therefore,
all the Commissioners would have to be present, so as to
sustain an order.
W.P(C) No.25153 of 2023 2026:KER:10999
16. In the light of the afore, I am of the opinion that
the order at Ext.P12 requires to be set aside.
17. Submissions were also made with reference to the
sustainability of Ext.P12 order in the light of the provision
under Section 20(1) providing for the levy of penalty in the
circumstances prescribed therein. Section 20 (1) of the Act
reads as follows:-
"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 mala fidely
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:
Provided that the Central Public Information Officer or the State
Public Information Officer, as the case may be, shall be given a
W.P(C) No.25153 of 2023 2026:KER:10999
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."
True, under sub-section (1), the State Information
Commission has the power to impose penalty when an SPIO
without any reasonable cause has not furnished the
information sought for, or with mala fide intention denied the
request for information. In other words, it is incumbent upon
the Commission to consider whether there was a 'reasonable
cause' or 'mala fide denial' at the hands of the SPIO. A
perusal of Ext.P2 would show that certain information was not
provided, relying on Section 8(1)(j) of the Act. In other
words, the SPIO has referred to the prohibition under Section
8(1)(j) as per which personal information does not require to
be provided. However, the 2nd respondent has referred to the
provisions of Section 11 of the Act and held that the procedure
prescribed thereunder ought to have been followed. In other
W.P(C) No.25153 of 2023 2026:KER:10999
words, the 2nd petitioner had offered an explanation for not
providing certain information, and merely for the reason that
the 2nd respondent did not accept this explanation, the
provisions of Section 20(1) are not attracted. This is especially
so when the 3rd respondent did not have a case that refusal
to provide information in full was deliberate/with mala fide
intentions. In my opinion, the mere allegation that the refusal
to provide answers was mala fide, is insufficient. It is only in
a situation where the refusal was without providing any
explanation that the provisions of Section 20(1) would apply.
Merely because the statute empowers the imposition of
penalty that does not require it to be mechanically levied.
Ultimately, it is a discretion vested on the authorities, to be
exercised judiciously, taking note of the attending
circumstances. The penalty is not to be levied when the
breach alleged stems from a bona fide belief that certain
information does not require to be provided. Therefore, in my
opinion, the penalty is only to be set aside.
W.P(C) No.25153 of 2023 2026:KER:10999
18. This Court also notices the explanation offered
along with the apology before the 2nd respondent, as
evidenced by Ext.P10, about which there is no
consideration/whisper in the final order at Ext.P12.
Therefore, the penalty imposed as above requires to be set
aside for that reason also.
19. The last issue arising for consideration is the
sustainability or otherwise of the direction made in the
impugned proceeding for carrying out an enquiry under the
provisions of the Act. A reading of the preamble to the Act
would show that the statute only provides for extending the
right to information for citizens from public authorities to
promote transparency and accountability. The provisions of
Chapter IV or V of the Act also do not provide for any power
to carry out a roving enquiry and thereafter issue advice to
the Government. The provisions of Section 19(8) of the Act,
already referred to, do not confer any such power on the 2nd
respondent. If that be so, the directions contained in Ext.P12,
W.P(C) No.25153 of 2023 2026:KER:10999
advising the Government to conduct an enquiry into the
affairs of the college, also require to be set aside.
On the whole, I am of the opinion that the petitioners
are entitled to succeed. Therefore, the writ petition would
stand allowed, setting aside Ext.P12 issued by the 2nd
respondent.
Sd/-
HARISANKAR V. MENON
JUDGE
ln
W.P(C) No.25153 of 2023 2026:KER:10999
APPENDIX OF WP(C) NO. 25153 OF 2023
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE APPLICATION DATED 29/9/2022
SUBMITTED BY THE 3RD RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE REPLY NO. 27/RTI/2022/SREE
VIDHYATHIRAJA DATED 26-10-2022 ISSUED BY THE 2ND
PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE APPEAL MEMORANDUM DATED
8-11-2022, SUBMITTED BY THE 3RD RESPONDENT.
EXHIBIT P4 A TRUE COPY OF THE REPLY NO. 27/RTI/2022/SREE
VIDHYATHIRAJA DATED 30-11-2022 GIVEN TO THE 3RD
RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE APPEAL DATED 7-12-2022 SUBMITTED
BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE NOTICE NO.18382/SIC-G7/2022 DATED
23/1/2023 ISSUED BY THE COMMISSION.
EXHIBIT P7 A TRUE COPY OF THE STATEMENT NO. 27/RTI/2022/SREE
VIDHYATHIRAJA DATED 27-1-2023 GIVEN BY THE COLLEGE.
EXHIBIT P8 A TRUE COPY OF THE ORDER NO. AP.NO. 1585 (5)/22/SIC
DATED 25-2-2023 GIVEN BY THE COMMISSION.
EXHIBIT P9 A TRUE COPY OF THE COVERING LETTER NO.
27/RTI/2022/SVRHMC DATED 30-3-2023, GIVEN TO 3RD
RESPONDENT.
EXHIBIT P10 A TRUE COPY OF THE LETTER NO. 27/RTI/2022 SREE
VIDHYATHIRAJA DATED 30-3-2023, ADDRESSED TO THE 2ND
RESPONDENT.
EXHIBIT P11 A TRUE COPY OF THE LETTER NO. 18382/SIC-G7/2022 DATED
19-4-2023 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P12 A TRUE COPY OF THE ORDER NO. AP.NO.1585(5)/22/SIC
DATED 05/05/2023 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P13 A TRUE COPY OF THE ORDER NO.ASC100/21/BHMS/SVHMC DATED
9/11/22, OF THE ADMISSION SUPERVISORY COMMITTEE.
