Ved Prakash v. State Information Commissioner, Himachal Pradesh, Shimla-171002
2013-03-06
RAJIV SHARMA
body2013
DigiLaw.ai
JUDGMENT Rajiv Sharma, Judge: ‘Key facts’ necessary for adjudication of this petition are that the petitioner has submitted an application for supply of documents under the Right to Information Act, 2005 (hereinafter referred to as ‘the Act’ for the sake of convenience) before the District Panchayat Officer-Cum-Public Information Officer, Dharamshala vide Annexure P/1. The District Panchayat Officer-Cum-Public Information Officer, Dharamshala forwarded the application to the Block Development Officer, Dharamshala, Tehsil and District Kangra on 30th March, 2010. The Panchayat Shayak, Gram Panchayat Khanyara informed the Block Development Officer, Dharamshala that the photo copies of the documents were being supplied to the petitioner. Photo copies of the documents were also annexed with letter, dated 23.04.2010. Since the documents sought for by the petitioner, i.e., copies of applications, dated 19.05.2006, 20.05.2006 and 16/17.05.2006 were not supplied to the petitioner, he submitted an application to the Block Development Officer, Dharamshala on 29.04.2010 stating therein that the information supplied to him was not acceptable to him and he has also sought the address of the next appellate authority. Thereafter, the petitioner was informed vide letter, dated 01.05.2010 that the information sought for by him was also being supplied by annexing letter, dated 30.04.2010. The Pradhan, Gram Panchayat Khanyara has informed the Block Development Officer vide letter, dated 30.04.2010 that the record of the Panchayat was verified, but the letters, dated 19.05.2006, 20.05.2006 and 16/17.05.2006, were not found in the record. Being aggrieved by the incorrect and misleading information supplied to him, the petitioner has filed an appeal before the A.D.C.-Cum-Appellate Authority vide Annexure P-6 on 31.05.2006. Petitioner has specifically stated therein that the information supplied by the Block Development Officer, Dharamshala to him was not correct. The matter was heard on 17.06.2010 and the Block Development Officer, Dharamshala was directed to examine the receipts of applications and action taken thereon and submit his report within two weeks. The matter was examined by the SEBPO, Dharamshala and he submitted a copy of the reply of Pradhan, Gram Panchayat Khanyara, a copy whereof was also supplied to the petitioner on 17.07.2007. The case was closed on 17.07.2007. The copy of letter, dated 13.07.2010, supplied to the petitioner at the time of hearing, has been placed on record vide Annexure P-8.
The case was closed on 17.07.2007. The copy of letter, dated 13.07.2010, supplied to the petitioner at the time of hearing, has been placed on record vide Annexure P-8. Surprisingly, what has been stated by the Pradhan, Gram Panchayat Khanyara in letter, dated 13.07.2010 (Annexure P-8), is that though he has received the letters, dated 19.05.2006, 20.05.2006 and 17.05.2006 which were sent by the petitioner through registered post, but he could not place the same in the records of the Gram Panchayat and has misplaced the same. Feeling aggrieved by the order, dated 17.07.2010, passed by the Additional Deputy Commissioner, Kangra at Dharamshala, the petitioner has filed an appeal before the Chief Information Commissioner, State Information Commission, Himachal Pradesh on 18.09.2010. Petitioner has specifically mentioned in the grounds of appeal that incorrect information has been supplied to him by the Block Development Officer and the Pradhan, Gram Panchayat. The appeal was decided by the State Information Commission, Himachal Pradesh on 10.12.2010. The State Information Commissioner, Himachal Pradesh instead of taking action against respondents No. 3 and 4, has disposed of the appeal by observing that since the letters were never entered in the records of the office and were reported to have been misplaced by the Pradhan at that time, its supply at that time was not possible. It was also observed that on the same ground the appeal has been rejected by the appellate authority. The order, dated 17.07.2010, was up-held by the appellate authority. It is in these circumstances, the present petition has been filed. 2. Mr. Ajay Sharma, learned counsel for the petitioner has vehemently argued that the respondents No. 1, 2, 3 and 4 have failed to discharge their statutory duties enshrined under the Right to Information Act, 2005. He then contended that since respondents No. 3 and 4 have supplied incorrect information, penalty was required to be imposed upon them by the respondent No. 1. He also argued that respondent No. 4 besides supplying the incorrect information to the petitioner, has supplied misleading information, destroyed the information and has also obstructed furnishing information to his client and for doing this, he ought to have been penalized by respondent No. 1. He lastly contended that the petitioner is entitled to compensation as per Section 19 (8)(b) of the Right to Information Act, 2005. 3. Mr.
He lastly contended that the petitioner is entitled to compensation as per Section 19 (8)(b) of the Right to Information Act, 2005. 3. Mr. Pramod Thakur, learned Additional Advocate General, for respondents No. 2 and 3, Mr. Ajay Chandel, learned counsel for respondent No. 1 and Mr. Vishal Panwar, learned counsel for respondent No. 4, have supported the appellate orders. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The Right to Information Act, 2005 has come into force w.e.f. 12.10.2005. Section 2 (e) defines ‘competent authority’ as under: “2(e) “competent authority” means- (i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union territory having such Assembly and the Chairman in the case of the Council of States of a Legislative Council of States; (ii) the Chief Justice of India in the case of the Supreme Court; (iii) the Chief Justice of the High Court in the case of a High Court; (iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution; (v)the administrator appointed under Article 239 of the Constitution;” 6. Sections 2(f) and 2(h) define the “information” and “public authority” as under: “2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; 2(h) “public authority” means any authority or body or institution of self-government established or constituted,- (a)by or under the Constitution; (b)by any other law made by Parliament; (c)by any other law made by State Legislature; (d)by notification issued or order made by the appropriate Government, and includes any- (i)body owned, controlled or substantially financed; (ii)non-Government Organization substantially financed, directly or indirectly by funds provided by the appropriate Government;” 7. The expression “record” has been defined under Section 2(i) of the Act.
The expression “record” has been defined under Section 2(i) of the Act. The expression “right to information” has been defined under Section 2(j) as under: “2(J) “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to- (i)inspection of work, documents, records; (ii)taking notes, extracts, or certified copies of documents or records; (iii)taking certified samples of material; (iv)obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;” 8. Section 3 of the Act provides that subject to the provisions of this Act, all citizens have the right to information. The obligations of public authorities have been laid down under Section 4 of the Act. Section 5 provides for designation of Public Information Officers. Sub-section (5) of Section 5 of the Act provides that any officer, whose assistance has been sought under Sub-section (4), shall render all assistance to the Central Public Information Officer or State Public Information Officer, as the case may be, seeking his or her assistance and for the purposes of any contravention of the provisions of this Act, such other officer shall be treated as a Central Public Information Officer or State Public Information Officer, as the case may be. The disposal of request is provided under Section 7 of the Act. The powers and functions of the Information Commission are stipulated under Section 18 of the Act. Section 19 deals with the appeals. Section 19(8)(b) require the public authority to compensate the complainant for any loss or other detriment suffered. Section 20 provides for penalties. 9. In the instant case, the petitioner has sought for the supply of documents, dated 19.05.2006, 20.05.2006 and 16/17.05.2006 vide Annexure P-1, dated 10.03.2010. However, the fact of the matter is that the petitioner was supplied incorrect information as per Annexure P-3, dated 23.04.2010 by the respondent No. 4. He has been supplied the photo copies of letters, dated 23.04.2010, 21.04.2006 and 24.05.2009. Petitioner brought to the notice of respondent No. 3 that the information supplied to him was not acceptable to him and he sought the address of the next appellate authority on 29.04.2010.
He has been supplied the photo copies of letters, dated 23.04.2010, 21.04.2006 and 24.05.2009. Petitioner brought to the notice of respondent No. 3 that the information supplied to him was not acceptable to him and he sought the address of the next appellate authority on 29.04.2010. The respondent No. 3 did not verify the facts and again informed him vide Annexure P-5 on 01.05.2010 that the information sought for by him was supplied to him and the copy of letter, dated 30.04.2010 was annexed with Annexure P-5. It is stated in letter, dated 30.04.2010 by respondent No. 4 that the letters, dated 19.05.2006, 20.05.2006 and 16/17.05.2006 were not available on the records of the Gram Panchayat. This aspect, as noticed above, was highlighted by the petitioner at the time of filing the appeal. The respondent No. 2 instead of deciding the case on merits, has closed the matter by handing over a photo copy of letter, dated 13.07.2010 to the petitioner, received from respondent No. 4. The respondent No. 4 in communication, dated 13.07.2010 has admitted that though he has received the copies, but he could not deposit the same with Gram Panchayat and the same were mis-placed. 10. What emerges from these communications is that firstly incorrect information has been supplied to the petitioner; secondly, it is stated that the letters were not on records; and thirdly, it is also stated that the documents were misplaced and no action was taken on these letters, since the High Court was seized of the matter. The appellate authority also against the letter and spirit of the Act, rejected the appeal on 10.12.2010, merely by stating that since the letters were never entered in the records of the office and were reported to have been misplaced by the Pradhan, the information sought for by the petitioner could not be supplied. The appellate authorities discharge quasi judicial functions. They are required to pass self contained orders by taking into consideration all the pleas raised by the parties. The respondents No. 3 and 4 have supplied incorrect information to the petitioner knowingly without verifying the facts. The respondent No. 4 has given misleading information and has also destroyed the information, which he was required to supply to the petitioner besides causing obstruction in furnishing the information. 11.
The respondents No. 3 and 4 have supplied incorrect information to the petitioner knowingly without verifying the facts. The respondent No. 4 has given misleading information and has also destroyed the information, which he was required to supply to the petitioner besides causing obstruction in furnishing the information. 11. Since the Gram Panchayat is also constituted under the Himachal Pradesh Panchayati Raj Act, 1994, it would fall within the ambit of ‘public authority’. The Gram Panchayat was required to maintain records strictly as per Section 4 of the Act. The documents which were supplied to respondent No. 4, were required to be entered in the records and plea of respondent No. 4 that he has misplaced the documents, cannot be accepted. He has, rather, destroyed the information, of which he was custodian. It was the duty cast upon respondent No. 4 to supply the information to the petitioner as per Sub-section (5) of Section 5 of the Act. Respondent No. 2 should have taken into consideration Sub-Section (5) of Section 5 of the Act while dealing with the case of the petitioner. It was the duty cast upon respondent No. 2 that the correct information is supplied to the petitioner. Respondent No. 2 instead of adjudicating the matter strictly as per the Act, has supplied the petitioner with Annexure P-8, dated 13.07.2010, whereby the Pradhan has sent the communication to the Block Development Officer on 13.07.2010, stating therein that though he has received the documents, but these were not entered in the records of the Gram Panchayat and he has mis-placed the same. This plea ought not to have been accepted by the second respondent lightly. In case these kinds of pleas are accepted, then in every case, the concerned authorities would take a plea that the record is destroyed and the information was not available. This will go against the very spirit of the Act. The second respondent ought to have called upon the respondents No. 3 and 4 under what circumstances the documents received by the Pradhan have been misplaced and appropriate orders were required to be passed. The same illegality has been committed by the respondent No. 1 while disposing of the appeal, merely on the pretext that the documents were misplaced by respondent No. 4 and the information, thus, could not be supplied.
The same illegality has been committed by the respondent No. 1 while disposing of the appeal, merely on the pretext that the documents were misplaced by respondent No. 4 and the information, thus, could not be supplied. The powers and functions of Information Commission have been provided under Section 18 of the Act. Respondent No. 1 was required to impose penalty upon respondent No. 3 for knowingly giving incorrect and misleading information. The penalty was also required to be imposed upon respondent No. 4 for knowingly giving incorrect and misleading information, destruction of information and obstructing the information, which was the subject matter of the request made by the petitioner. The respondent No. 1 was also required to take action against respondent No. 3 under Subsection 2 of Section 20 of the Act. 12. The expression “knowingly” has been explained in Advanced Law Lexicon 3rd Edition 2005 by P. Ramanatha Aiyar as under: “Knowingly: The primary definition of the word “knowingly” is with “knowledge.” 13. The expression “knowingly” has been explained by their Lordships in Privy Council in Ho Tong Cheong and others Vs. Oversea Chinese Banking Corporation Limited, Law Reports Appeal Cases Vol. II 1969 139 as under: “Their Lordships are not at all clear what precise content the trial judge gave to the word “knowingly” in Section 15(1)(h) and they do not think it helpful to enter into a metaphysical discussion of the meaning of the word “knowingly.” In their view it is not necessary that the respondents should show that the appellants knew the precise sections of the Municipal Ordinance, of which they are alleged to be in breach nor indeed that it was “the Municipal Ordinance.” Such a construction would largely nullify the protection given to a landlord by Section 15(1)(h). It is sufficient in their Lordships’ view that the tenant knows that his conduct is in breach of some law affecting the regulation of building operations in Singapore. It must, of course, also be shown that his conduct in fact is in breach of the Municipal Ordinance.” 14. In Ramesh Sharma & Anr. Vs.
It is sufficient in their Lordships’ view that the tenant knows that his conduct is in breach of some law affecting the regulation of building operations in Singapore. It must, of course, also be shown that his conduct in fact is in breach of the Municipal Ordinance.” 14. In Ramesh Sharma & Anr. Vs. State Information Commission, Haryana & Ors., AIR 2008 Punjab and Haryana 126, the Division Bench of Punjab and Haryana High Court has held that even in cases of simple delay Commission is empowered under sub-section (2) of Section 20 to recommend disciplinary action against State/Central Public Information Officer under Service Rules applicable to such officers. The imposition of penalty on Public Information Officer under Section 20(1) is mandatory. The Division Bench has held as under: “5. A plain reading of Sub-section (1) of Section 20. of the Act makes' it obvious that the Commission could impose the penalty for the simple reasons of delay in furnishing' the information within the period specified by Sub-section (1) of Section 7 of the Act. According to Sub-section (1) of Section 7 of the Act, a period of 30 days has been provided for furnishing of information. If the information is not furnished within the time specified by 'Sub-section (1) of Section 7 of the Act then under Sub-section (1) of Section 20 of the Act, public authorities failing in furnishing the requisite information could be penalised. It is true that in cases of intentional delay, the same provision could be invoked but in cases where there is simple delay the Commission has been clothed with adequate power. Therefore, the first argument that the penalty under Sub-section (1) of Section 20 of the Act could be imposed, only in Cases where there is repeated failure to furnish the information and that too without any reasonable cause, is liable to be rejected. The Commission is empowered under Sub-section (2) of Section 20 of-the Act to recommend disciplinary action against such State/Central Public Information Officer under the service rules applicable to such officers. However, the present is hot the case of that nature because the Commission has not been invoked under Sub-section (2) of Section 20 of the Act. Hence, the argument raised is wholly misconceived and is hereby rejected. 6.
However, the present is hot the case of that nature because the Commission has not been invoked under Sub-section (2) of Section 20 of the Act. Hence, the argument raised is wholly misconceived and is hereby rejected. 6. The second submission that lenient view should have been taken on account of failure of the Government to organise any programme to train public authorities as envisaged by Section 26 of the Act is equally without merit. The Act has come in force in the year 2005 and the petitioners were required to constitute the Public Information Officer to the appropriate authorities. The petitioners could constitute the First Appellate Authority only on 2.3.2007, which resulted in filing of second appeal before the Commission. The petitioner has completely ignored the provisions of the Act and appears to have awaken only after the applicant-respondent No. 3 has asked for information and filed the first, appeal. The petitioners cannot avoid the mandatory provisions of Sub-section 1 of Section 20 of the Act on the excuse that any training programme as envisaged by Sub-section (1)(a) of Section 26 of the Act has not been organised by the Government encouraging participation of the petitioners in the development and organisation of programmes. Therefore, we do not find any merit in the second contention raised by the learned Counsel.” 15. Their Lordships of the Hon’ble Supreme Court in Kranti Associates Private Limited and another Vs. Masood Ahmed Khan and others (2010) 9 Supreme Court Cases 496 have summarized the principles on the recording of reasons as under: “47. Summarizing the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process". 16. In Lakshmi Narayan Singh V. State of Bihar & Ors. AIR 2011 Patna 32, the learned Single Judge has upheld the order of imposition of penalty upon the Block Education Extension Officer, Kauakol Block, who has failed to furnish the information. The learned Single Judge has held as under: “10. Learned counsel for the respondents further submitted that when the Commission passed order dated 22.1.2008 in presence of the petitioner he had full knowledge and information about the case and the entire procedure and hence due to his non-appearance on the subsequent dates and noncompliance of the specific directions of the specific directions of the Commission the impugned order was passed, as it was mandatory upon the petitioner to comply the order of the Commission as per the provision of Section 20 of the Act. Moreover, the petitioner even if he was under suspension having his Headquarters at Gaya was duty bound to appear before the Commission on the dates fixed, but he failed to do that. It was stated that the impugned order had been passed after issuing notice and considering the explanation submitted by the petitioner and hence it cannot be said that there is any defect in the process adopted by the Commission. 12. Considering the entire facts and circumstances of the case as well as the pleadings of the parties including the materials on record, it is quite apparent that a complainant had right to know whether earlier appointees were better qualified and for that purpose the provision of the Act had been provided by the law makers according to which withholding any such information is pulpably illegal and also amounts to mischief. The provisions of the Act clearly specify that an aggrieved person may apply for such information from the department concerned and also authorize the Commission to accept direct applications from such persons.
The provisions of the Act clearly specify that an aggrieved person may apply for such information from the department concerned and also authorize the Commission to accept direct applications from such persons. In the said circumstances, filing of application by respondent No. 7 before the Commission can not be said to be illegal or improper. Furthermore, the impugned order was passed by the authority after fully observing the procedure in accordance with law including issuance of notice, giving opportunity to the petitioner and considering his show cause. 13. In the said circumstances, it is quite apparent that the petitioner having full information of the specific orders of the Commission neither supplied the required informations to respondent No. 7 about the basis on which teachers were appointed on the post reserved for handicapped persons nor he made any such statement that the said teacher was appointed without any handicap certificate issued by the government. Thus, it is absolutely clear that the petitioner for the reasons best known to him concealed the necessary facts with respect to the main issue involved in the matter and in the process he petitioner even did not comply the specific repeated directions of the Commission and absented himself on the dates fixed in the case in spite of having full knowledge and information about the same and hence the Commission was quite justified in passing the impugned order against the petitioner. 17. In Johnson B. Fernandes V. Goa State Information Commission, Panaji, Goa & Anr, AIR 2012 Bombay 56, the learned Single Judge has upheld the imposition of penalty upon the Information Officer, who has not supplied the information within the stipulated period of thirty days. The learned Single Judge has held as under: “4. Mr. Menezes, the learned counsel for respondent No. 2, submitted that the appeal was preferred to the State Information Commissioner because it is the duty of the Information Officer to supply the information to the person who seeks it directly and not by including the said information in the pleadings when the matter is taken up in appeal. There is merit in this contention. Undoubtedly, the law contemplates supply of information by the Information Officer to the party who seeks it within the time stipulated. Therefore, it cannot be said that the appeal before the State Information Commissioner was untenable. 5.
There is merit in this contention. Undoubtedly, the law contemplates supply of information by the Information Officer to the party who seeks it within the time stipulated. Therefore, it cannot be said that the appeal before the State Information Commissioner was untenable. 5. In any case, having regard to the admitted fact that there was a delay in supplying information, there appears to be no reason to interfere with the impugned order. In fact, the Information Commissioner has shown some degree of leniency in imposing the penalty. The findings are based on evidence and after affording the petitioner a reasonable opportunity of being heard as contemplated by law. The impugned order does call for any interference.” 18. Their Lordships of the Hon’ble Supreme Court in Namit Sharma Vs. Union of India (2013) 1 Supreme Court Cases 745 have held that elaborate mechanism has been created and definite powers have been conferred upon authorities concerned to ensure that they are able to implement and enforce provisions of RTI Act adequately and effectively. Their Lordships have held that the orders passed by the Information Commissions in second appeal are subject to writ and supervisory jurisdictions of High Courts and Supreme Court. Their Lordships have also held that the decisions of Central and State Information Commissions’ are bound by judicial discipline. Their Lordships have also held that the statutory authorities under the R.T.I. Act are required to pass reasoned orders. Their Lordships have held as under: “33. Every authority/department is required the Central Information Commission and State Information Commissions in accordance with the provisions of Sections 12 and 15 of the Act of 2005. It may be noticed that under the scheme of this Act, the Public Information Officer at the Centre and the State Levels are expected to receive the requests/applications for providing the information. Appeal against decision of such Public Information Officer would lie to his senior in rank in terms of Section 19(1) within a period of 30 days. Such First Appellate Authority may admit the appeal after the expiry of this statutory period subject to satisfactory reasons for the delay being established. A second appeal lies to the Central or the State Information Commission, as the case may be, in terms of Section 19(3) within a period of 90 days The decision of the Commission shall be final and binding as per Section 19(7).
A second appeal lies to the Central or the State Information Commission, as the case may be, in terms of Section 19(3) within a period of 90 days The decision of the Commission shall be final and binding as per Section 19(7). Section 19 is an exhaustive provision and the Act of 2005 on its cumulative reading is a complete code in itself. However, nothing in the Act of 2005 can take away the powers vested in the High Court under Article 226 of the Constitution and of this Court under Article 32. The finality indicated in Sections 19(6) and 19(7) cannot be construed to oust the jurisdiction of higher courts, despite the bar created under Section 23 of the Act. It always has to be read and construed subject to the powers of the High Court under Article 226 of the Constitution. Reference in this regard can be made to the decision of a Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India and Ors. [ (1997) 3 SCC 261 ]. 36. Section 12(5) is a very significant provision under the scheme of the Act of 2005 and we shall deal with it in some elaboration at a subsequent stage. Similarly, the powers and functions of the Authorities constituted under the Act of 2005 are conspicuous by their absence under the Act of 2002, which under the Act of 2005 are contemplated under Section 18. This section deals in great detail with the powers and functions of the Information Commissions. An elaborate mechanism has been provided and definite powers have been conferred upon the authorities to ensure that the authorities are able to implement and enforce the provisions of the Act of 2005 adequately. 37. Another very significant provision which was non-existent in the Act of 2002, is in relation to penalties. No provision was made for imposition of any penalty in the earlier Act, while in the Act of 2005 severe punishment like imposition of fine upto Rs.250/- per day during which the provisions of the Act are violated, has been provided in terms of Section 20(1). The Central/State Information Commission can, under Section 20(2), even direct disciplinary action against the erring Public Information Officers.
The Central/State Information Commission can, under Section 20(2), even direct disciplinary action against the erring Public Information Officers. Further, the appropriate Government and the competent authority have been empowered to frame rules under Sections 27 and 28 of the Act of 2005, respectively, for carrying out the provisions of the Act. Every rule made by the Central Government under the Act has to be laid before each House of the Parliament while it is in session for a total period of 30 days, if no specific modifications are made, the rules shall thereafter have effect either in the modified form or if not annulled, it shall come into force as laid. 62. Certainty to vague expressions, like ‘social service’ and ‘mass media’, can be provided under the provisions which are capable of being explained by framing of proper rules or even by way of judicial pronouncements. In order to examine the scope of this provision and its ramifications on the other parts of the Act of 2005, it is important to refer back to the scheme of the Act. Under the provisions of the Act, particularly, Sections 4, 12, 18, 19, 20, 22, 23 and 25, it is clear that the Central or State Information Commission, as the case may be, not only exercises adjudicatory powers of a nature no different than a judicial tribunal but is vested with the powers of a civil court as well. Therefore, it is required to decide a lis, where information is required by a person and its furnishing is contested by the other. The Commission exercises two kinds of penal powers: firstly, in terms of Section 20(1), it can impose penalty upon the defaulters or violators of the provisions of the Act and, secondly, Section 20(2) empowers the Central and the State Information Commission to conduct an enquiry and direct the concerned disciplinary authority to take appropriate action against the erring officer in accordance with law. Hence, the Commission has powers to pass orders having civil as well as penal consequences. Besides this, the Commission has been given monitoring and recommendatory powers. In terms of Section 23, the jurisdiction of Civil Courts has been expressly barred. 77.
Hence, the Commission has powers to pass orders having civil as well as penal consequences. Besides this, the Commission has been given monitoring and recommendatory powers. In terms of Section 23, the jurisdiction of Civil Courts has been expressly barred. 77. Under the scheme of the Act of 2005, in terms of Section 5, every public authority, both in the State and the Centre, is required to nominate Public Information Officers to effectuate and make the right to information a more effective right by furnishing the information asked for under this Act. The Information Officer can even refuse to provide such information, which order is appealable under Section 19(1) to the nominated senior officer, who is required to hear the parties and decide the matter in accordance with law. This is a first appeal. Against the order of this appellate authority, a second appeal lies with the Central Information Commission or the State Information Commission, as the case may be, in terms of Section 19(3) of the Act of 2005. The Legislature, in its wisdom, has provided for two appeals. Higher the adjudicatory forum, greater is the requirement of adherence to the rule of judiciousness, fairness and to act in accordance with the procedure prescribed and in absence of any such prescribed procedure, to act in consonance with the principles of natural justice. Higher also is the public expectation from such tribunal. The adjudicatory functions performed by these bodies are of a serious nature. An order passed by the Commission is final and binding and can only be questioned before the High Court or the Supreme Court in exercise of the Court’s jurisdiction under Article 226 and/or Article 32 of the Constitution, respectively. 80. Further, Section 23 is a provision relating to exclusion of jurisdiction of the Courts. In terms of this Section, no Court shall entertain any suit, application or other proceedings in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal provided for under this Act. In other words, the jurisdiction of the Court has been ousted by express language. Nevertheless, it is a settled principle of law that despite such excluding provision, the extraordinary jurisdiction of the High Court and the Supreme Court, in terms of Articles 226 and 32 of the Constitution, respectively, cannot be divested.
In other words, the jurisdiction of the Court has been ousted by express language. Nevertheless, it is a settled principle of law that despite such excluding provision, the extraordinary jurisdiction of the High Court and the Supreme Court, in terms of Articles 226 and 32 of the Constitution, respectively, cannot be divested. It is a jurisdiction incapable of being eroded or taken away by exercise of legislative power, being an important facet of the basic structure of the Constitution. In the case of L. Chandra Kumar (supra), the Court observed that the constitutional safeguards which ensure independence of the Judges of the superior judiciary not being available for the Members of the Tribunal, such tribunals cannot be considered full and effective substitute to the superior judiciary in discharging the function of constitutional interpretation. They can, however, perform a supplemental role. Thus, all decisions of the Tribunals were held to be subject to scrutiny before the High Court under Article 226/227 of the Constitution. Therefore, the orders passed by the authority, i.e., the Central or the State Information Commissions under the Act of 2005 would undoubtedly be subject to judicial review of the High Court under Article 226/227 of the Constitution. 98. This takes us to discuss the kind of duties and responsibilities that such high post is expected to perform. Their functions are adjudicatory in nature. They are required to give notice to the parties, offer them the opportunity of hearing and pass reasoned orders. The orders of the appellate authority and the Commission have to be supported by adequate reasoning as they grant relief to one party, despite opposition by the other or reject the request for information made in exercise of a statutory right. 99. It is not only appropriate but is a solemn duty of every adjudicatory body, including the tribunals, to state the reasons in support of its decisions. Reasoning is the soul of a judgment and embodies one of the three pillars on which the very foundation of natural justice jurisprudence rests. It is informative to the claimant of the basis for rejection of his claim, as well as provides the grounds for challenging the order before the higher authority/constitutional court. The reasons, therefore, enable the authorities, before whom an order is challenged, to test the veracity and correctness of the impugned order.
It is informative to the claimant of the basis for rejection of his claim, as well as provides the grounds for challenging the order before the higher authority/constitutional court. The reasons, therefore, enable the authorities, before whom an order is challenged, to test the veracity and correctness of the impugned order. In the present times, since the fine line of distinction between the functioning of the administrative and quasi-judicial bodies is gradually becoming faint, even the administrative bodies are required to pass reasoned orders. In this regard, reference can be made to the judgments of this Court in the cases of Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India & Anr. [ (1976) 2 SCC 981 ]; and Assistant Commissioner, Commrcial Tax Department Works Contract and Leasing, Kota v. Shukla & Brothers [ (2010) 4 SCC 785 ]. 100. The Chief Information Commissioner and members of the Commission are required to possess wide knowledge and experience in the respective fields. They are expected to be well versed with the procedure that they are to adopt while performing the adjudicatory and quasi judicial functions in accordance with the statutory provisions and the scheme of the Act of 2005. They are to examine whether the information required by an applicant falls under any of the exemptions stated under Section 8 or the Second Schedule of the Act of 2005. Some of the exemptions under Section 8, particularly, sub-sections (e), (g) and (j) have been very widely worded by the Legislature keeping in mind the need to afford due protection to privacy, national security and the larger public interest. In terms of Section 8(1)(e), (f), (g), (h) and (i), the authority is required to record a definite satisfaction whether disclosure of information would be in the larger public interest or whether it would impede the process of investigation or apprehension or prosecution of the offenders and whether it would cause unwarranted invasion of the privacy of an individual. All these functions may be performed by a legally trained mind more efficaciously. The most significant function which may often be required to be performed by these authorities is to strike a balance between the application of the freedom guaranteed under Article 19(1)(a) and the rights protected under Article 21 of the Constitution.
All these functions may be performed by a legally trained mind more efficaciously. The most significant function which may often be required to be performed by these authorities is to strike a balance between the application of the freedom guaranteed under Article 19(1)(a) and the rights protected under Article 21 of the Constitution. In other words, the deciding authority ought to be conscious of the constitutional concepts which hold significance while determining the rights of the parties in accordance with the provisions of the statute and the Constitution. The legislative scheme of the Act of 2005 clearly postulates passing of a reasoned order in light of the above. A reasoned order would help the parties to question the correctness of the order effectively and within the legal requirements of the writ jurisdiction of the Supreme Court and the High Courts. 108.5 We also direct that the Central Government and/or the competent authority shall frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law. Such rules should be framed with particular reference to Section 27 and 28 of the Act within a period of six months from today. 108.12. The selection process should be commenced at least three months prior to the occurrence of vacancy.” 19. Respondents No. 3 and 4 have not supplied the information within the period prescribed under Section 7 of the Act and have knowingly given incorrect and misleading information. The respondent No. 4, in addition to this, has also destroyed the information and has also obstructed the supply of information to the petitioner. It was the duty of respondent No. 4 to supply the information as per Sub-section (5) of Section 5 of the Act, but he has failed to do so. The respondent No. 1 besides imposing penalty upon respondents No. 3 and 4, ought to have awarded compensation to the petitioner. Definitely, the petitioner has suffered due to non-supply of the information by the respondents No. 3 and 4. He is liable to be compensated. 20. Accordingly, in view of the discussions and analysis made hereinabove, the writ petition is allowed. Annexures P/7, dated 17.07.2010 and P/10, dated 10.12.2010, are quashed and set aside.
Definitely, the petitioner has suffered due to non-supply of the information by the respondents No. 3 and 4. He is liable to be compensated. 20. Accordingly, in view of the discussions and analysis made hereinabove, the writ petition is allowed. Annexures P/7, dated 17.07.2010 and P/10, dated 10.12.2010, are quashed and set aside. A penalty of `10,000/- each is imposed upon respondent No. 3 for supplying knowingly incorrect information and respondent No. 4 for knowingly giving incorrect and misleading information, destruction of information and obstructing the information. The petitioner is also held entitled to compensation of `50,000/- for the loss and detriment suffered by him to be paid proportionately by respondents No. 3 and 4. The Court also recommends the Administrative Department to take action against respondent No. 3 as per Sub-section (2) of Section 20 of the Act, within a period of three months from today. The pending application(s), if any, also stands disposed of. No costs.