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2010 DIGILAW 390 (UTT)

BHUPENDRA KUMAR KUKRETI v. STATE OF UTTARAKHAND

2010-06-17

B.S.VERMA

body2010
JUDGMENT By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order dated 25.8.2009 passed by the Chief Information Commissioner (Annexure-1) as well as the order dated 7.10.2009 passed by the Additional Director of Education whereby the petitioner has been placed under suspension i.e. Annexure No. 2. 2. By the order dated 25.8.2009, the appellate authority has dismissed the appeal preferred by the petitioner which was dismissed on the ground that the information sought by the petitioner had already been given on 2.5.2009 and direction was given to the Additional Director, Garhwal Mandal, Pauri for initiating administrative proceeding against the petitioner. 3. The order of the second appellate authority has been challenged firstly on the ground that the impugned order has been passed in the absence of the petitioner and secondly, that no information, which was sought under the Right to information Act, 2005 (for short the Act) by the petitioner has been supplied so far to the petitioner. Thirdly, by the impugned order the second appellate authority has made recommendation for taking administrative action, but that order is beyond his jurisdiction, in view of the provisions of Section 19(8) read with Section 20 of the Act. By a conjoin reading of these provisions, it is obvious that the Chief Information Commissioner is not empowered to impose a penalty to a person, who sought the information under the Act. Thus the order impugned passed by the Chief Information Commissioner so far as it relates to the recommendation for taking administrative action against the petitioner is concerned, the same is without competence. 4. It has been contended by the learned counsel for the petitioner that the impugned order passed by the Chief Information Commissioner is also liable to be set aside on the ground that the appeal was decided in the absence of the petitioner and his fact has wrongly been mentioned in the order that the order was passed in presence of the petitioner, as on that day, the petitioner was on medical leave. No information as sought by the petitioner has been supplied so far. No information as sought by the petitioner has been supplied so far. So far as the reference of the information given by the Principal on 23.5.2009 in compliance of the order dated 4.5.2009 is concerned, this compliance report has never been served upon the petitioner nor any such information was supplied to the petitioner at any point of time on or before 2.5.2009. 5. It was further contended that the impugned consequential order (Annexure No. 2 to the petitioner), whereby the petitioner has been placed under suspension, the same was passed on the recommendation of the Chief Information Commissioner, which in fact is wholly illegal because the Chief Information Commissioner could not have made recommendation to that effect in view of the provisions of Section 19(8) read with Section 20 of the Act. The impugned order was passed without application of mind and it is contrary to the proviso appended to Section 4(1) of the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003 because the charges as inflicted by the impugned suspension order do not warrant any major penalty. As such the consequential impugned order is liable to be quashed. 6. Relevant facts giving rise to the present writ petition, according to the petitioner, are that the petitioner is an Assistant Teacher in the Government Intermediate College, Kuwane, Chakrata, District Dehradun. On 18.9.2009, he submitted an application under the Act, whereby certain information was sought, but no information was supplied to the petitioner within the stipulated period as provided under the Act. Then an appeal was preferred by the petitioner before the appellate authority, i.e. Regional Joint Director of Education, Garhwal Mandal Pauri on 19.4.2009, which was decided on 4.5.2009, whereby the appellate authority directed the Information Officer to supply the information to the petitioner and a compliance report should also be furnished before the Public Information Officer, i.e. District Education Officer, Dehradun. Despite the order of the appellate authority dated 4.5.2009, the information sought by the petitioner was not supplied. 7. Further aggrieved by the inaction on the part of the authority concerned, the petitioner preferred second appeal before the Chief Information Commissioner. The appeal was decided on 25.8.2009 showing the presence of the petitioner. According to the petitioner, he was on medical leave. The petitioner has annexed application for medical leave as Annexure-7 to the writ petition. 8. On behalf of the respondent no. The appeal was decided on 25.8.2009 showing the presence of the petitioner. According to the petitioner, he was on medical leave. The petitioner has annexed application for medical leave as Annexure-7 to the writ petition. 8. On behalf of the respondent no. 3 and 4, counter affidavit has been filed. It is stated in the counter affidavit that the Principal of the college had furnished all the information as sought by the petitioner and he submitted his compliance report on 23.4.2009. It is also stated that since complete information was furnished to the petitioner, therefore, the Chief Information Commissioner recommendation for taking disciplinary action against the petitioner and as per directions of the Director, School Education, the respondent no. 3, while suspending the petitioner by his order dated 7.10.2009 attached him to the office of the Block Education Officer Kalsi, Dehradun till completion of the inquiry. It is further stated that the respondent no. 2 on being satisfied that the petitioner has deliberately placed wrong facts and levelled false allegations before the Chief Information Commissioner. The Chief Information Commissioner by his judgment and order dated 25.8.2009 recommended to the Director School Education to take administrative action against the petitioner and in compliance of the directions of the Director, School Education, the respondent no. 3 passed order suspending the petitioner because of the indiscipline of the petitioner. It is also stated that the information sought by the petitioner from the Principal of the college had been supplied to him and the Principal had submitted the compliance report to respondent no. 3 on 23.5.2009 that all the informations had been made available to the petitioner on 2.5.2009. It is also stated that the petitioner was present before the respondent no. 2 on 25.8.2009 and the stand taken by the petitioner to the contrary is not tenable because the petitioner was not bed ridden on 25.8.2009 and by the Medical Officer, S.P.S. Govt. Hospital, the petitioner was advised rest only. The petitioner was only an outdoor patient. The impugned orders passed against the petitioner are just and proper. 9. I have heard learned counsel for the parties and perused the material placed before the Court. 10. Hospital, the petitioner was advised rest only. The petitioner was only an outdoor patient. The impugned orders passed against the petitioner are just and proper. 9. I have heard learned counsel for the parties and perused the material placed before the Court. 10. The only controversy to be adjudicated in this writ petition is whether the second appellate authority is competent under the provisions of the Act to recommend the departmental authorities initiate disciplinary proceeding against the person who sought the information. 11. For a just decision of the case a reference to relevant provisions of Sections 18, 19(8) and Section 20 of the Act is necessary. Section 18 of the Act deals with the powers and functions of the Commission. This Section nowhere provides for making any recommendation against the applicant who sought information under the Act. 12. Sub-section (8) of Section 19 of the Act reads as under:- “(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to,- (a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including- (i) by providing access to information, if so requested, in a particular form; (ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be; (iii) by publishing certain information or categories of information; (iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records; (v) by enhancing the provision of training on the right to information for its officials; (vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of section 4; (b) require the public authority to compensate the complainant for any loss or other detriment suffered; (c) impose any of the penalties provided under this Act; (d) reject the application.” 13. Section 20 provides for Penalties, which reads as under:- “20. Penalties. Section 20 provides for Penalties, 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 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 reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonable 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, filed 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.” 14. In this writ petition, the petitioner in paragraph no. In this writ petition, the petitioner in paragraph no. 10 has made an averment to the effect that the impugned order dated 25.8.2009 was passed in his absence as the petitioner was on medical leave on that date and pursuant to the recommendation for taking administrative action made by the Chief Information Commissioner, the petitioner has been placed under suspension by order dated 7.10.2009. The petitioner also made an application to the Chief Information Commissioner enclosing the medical certificate on 22.10.2009 to review its order. The same has been annexed as Anenxure-8 to the petition. 15. On a complete reading of the provisions aforesaid provisions of the Act, it is amply clear that the Chief Information Commissioner has power to require the public authority to compensate the complainant for any loss or other detriment suffered. It has also power to impose any of the penalties provided under the Act. Section 20 deals with the Penalties and in my view, the penalties can be imposed against the Public Information Officer and that too after giving reasonable opportunity of being heard before any penalty is imposed on him. Proviso second appended to Section 20(1) of the Act makes it clear that the burden to prove that the Public Information Officer acted reasonably and diligently shall be on the Public Information Officer against whom penalty is proposed by the Chief Information Commissioner. 16. So far as the power of the Chief Information Commissioner to recommend for disciplinary action as provided under sub-section (2) of Section 20 of the Act is concerned, such a recommendation could have been made in appropriate case against the defaulter Public Information Officer. 17. I have pondered over the matter and in my considered view, the recommendations for disciplinary action as provided under sub-section (2) of Section 20 of the Act can only be made in appropriate case against the Public Information Officer and not against the complainant or appellant. Nowhere under the Act, it is provided that the complainant or the appellant would be liable for any recommendation to face disciplinary action on the ground of any vexatious or frivolous complaint or appeal, filed by him. Be that as it may, the order of suspension dated 7.10.2009 does not anywhere indicate that any show cause notice was given to the petitioner to explain the alleged indiscipline on his part before the Chief Information Commissioner. Be that as it may, the order of suspension dated 7.10.2009 does not anywhere indicate that any show cause notice was given to the petitioner to explain the alleged indiscipline on his part before the Chief Information Commissioner. Although in the impugned suspension order, there is mention of charge of indiscipline, but the suspension order also does not disclose the proposed evidence to be read against the petitioner. The petitioner also does not appear to have been given any show cause notice before framing of charge against him or before passing order of suspension against him. The impugned order of suspension dated 7.10.2009 appears to have been passed in a mechanical manner and that too without providing any opportunity of hearing to the petitioner before passing the order of suspension against him. The suspension order in question has been clearly passed in violation of the principles of natural justice and fair play. Needless to mention that it is always open to the departmental authorities to take disciplinary action against a government servant in appropriate cases, but it does not mean that the delinquent official can be deprived of placing his defence or to explain his conduct before any adverse order is passed against him, as has been done in the present case. 18. In view of the discussion and reasons above, since the Act does not empower the Chief Information Commissioner to make recommendation for initiating disciplinary or administrative action against the appellant under sub-section (2) of Section 20 of the Act, I am of the considered opinion that the order dated 25.8.2009 passed against the appellant is not in conformity with the provisions of the Act, therefore, the same cannot be sustained. The consequential order of suspension passed by the respondent no. 3 is solely based on the order dated 25.8.2009 passed by the Chief Information Commissioner Uttarakhand, which is also liable to be quashed. The writ petition deserves to be allowed. 19. The writ petition is allowed. The impugned orders are accordingly quashed. The order of suspension dated 7.10.2009 passed by the respondent no. 3 is set aside. No order as to costs.