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2017 DIGILAW 1970 (ALL)

AQUIL AHMAD v. STATE OF U. P.

2017-08-25

A.P.SAHI, RAJIV LOCHAN MEHROTRA

body2017
JUDGMENT By the Court.—Heard Sri Syed Fahim Ahmed, learned counsel for the petitioners. 2. This writ petition assails the orders dated 20th May, 2009 and 25th May, 2009 passed by the Regional Higher Education Officer, Bareilly Region, Bareilly and the District Inspector of Schools, Shahjahapur respectively whereby the salaries of the petitioners payable from the State Exchequer has been withheld on the ground that the petitioners have failed to provide requisite information in terms of The Right to Information Act, 2005. 3. The allegations, therefore, contained in the orders passed, are based on the alleged inaction of the petitioners in providing requisite information under the 2005 Act which has been challenged on the ground that the said Act does not authorize the said Authorities to impose such a condition which amounts to a penalty. The same being totally unauthorized under the 2005 Act, the impugned orders are also equally unsustainable as the payment of salary has to be made without any deductions as per the statutory provision of Section 60-B of The Uttar Pradesh State Universities Act, 1973. Learned counsel therefore, submits that the impugned orders being without authority and beyond the jurisdiction of the respondent Nos. 2 and 3 deserve to be set aside and additionally also because they have passed the orders without giving any notice or opportunity to the petitioners which are in violation of principles of natural justice. 4. A supplementary-affidavit also has been filed bringing on record the communication with regard to the information sought from the college. 5. A Division Bench of this Court entertained the writ petition and passed the following interim order on 18th September, 2009 : “Learned Standing Counsel appears for all the respondents. He is allowed three weeks’ time to file counter-affidavit. The petitioner will have one week, thereafter, to file rejoinder-affidavit. List on 28th October, 2009. It is submitted by Shri Anurag Khanna that the petitioners are the Principal and Office Superintendent of Gandhi Faiz-a Am College, a religious minority institution. They have provided all the information required in the application of Shri Gaurav Shukla under the Right to Information Act, 2005. In para 22 of the writ petition and the supplementary-affidavit filed today it is stated that the requisite information has been sent to the District Inspector of Schools and the Regional Higher Education Officer, Bareilly Region, Bareilly. They have provided all the information required in the application of Shri Gaurav Shukla under the Right to Information Act, 2005. In para 22 of the writ petition and the supplementary-affidavit filed today it is stated that the requisite information has been sent to the District Inspector of Schools and the Regional Higher Education Officer, Bareilly Region, Bareilly. The respondents have, however, by the impugned order stopped the salary of the petitioners since May, 2009. It is submitted by Shri Anurag Khanna that the Regional Higher Education Officer and the District Inspector of Schools do not have any powers to stop the salary on the ground that certain information under the Right to Information Act, 2005 has not been supplied to the State Public Information Officer. The authorities for imposing penalties have been specified in the Act. The petitioner’s appeal is still pending in the State Information Commission. Prima facie we find substance in the submission that the respondents do not have any authority to stop the petitioner’s salary on the ground that the petitioners have not provided or delayed in providing the requisite information under the Right to Information Act, 2005. Until further orders, the effect and operation of the impugned orders dated 20.5.2009 and 25.5.2009, passed by the respondent Nos. 2 and 3 respectively shall remain stayed. The entire arrears of salary shall be paid to the petitioners within one month.” 6. No counter-affidavit has been filed on behalf of the State. Learned Standing Counsel prays for further time but we are not inclined to grant any further time as the issue is purely legal and even otherwise more than eight years have been passed but the State has not filed any counter-affidavit. 7. Learned counsel for the petitioner, therefore, in the aforesaid background submits that the impugned orders being unsustainable, the same deserve to be quashed. 8. Learned Standing Counsel submits that the Authorities were compelled to take action due to inaction on the part of the petitioners and therefore, it cannot be said that the action is unauthorized. 9. We have considered the submissions raised. Section 20 of the Right to Information Act, 2005 empowers the Central Information Commission and the State Information Commission to impose penalties if the Authority empowered to give information does not act in conformity with the Act and Rules framed thereunder. 9. We have considered the submissions raised. Section 20 of the Right to Information Act, 2005 empowers the Central Information Commission and the State Information Commission to impose penalties if the Authority empowered to give information does not act in conformity with the Act and Rules framed thereunder. No orders have been passed either by the Central Information Commission or State Information Commission imposing any penalty on the petitioners. 10. Petitioner No. 1 is the Principal of the Institution and the petitioner No. 2 is the Office Superintendent of Gandhi Faiz-e-Aam College, Shahjahapur which is a degree college affiliated to the Ruhelkhand University. The salaries of the employees of the said institution, as per the sanctioned strength, is paid by the State Government out of the State Fund and the disbursement whereof is the responsibility of the State in terms of Section 60-B of 1973 Act. 11. Neither the provisions of Section 20 of the 2005 Act nor the provisions of Section 60-B allow the withholding of salary on the ground of non-providing of information as has been done in the present case by the Disbursement Authorities i.e. respondent Nos. 2 and 3. 11. Neither the provisions of Section 20 of the 2005 Act nor the provisions of Section 60-B allow the withholding of salary on the ground of non-providing of information as has been done in the present case by the Disbursement Authorities i.e. respondent Nos. 2 and 3. Section 20 of the 2005 Act is extracted hereinunder : “(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 twentyfive 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 reasonably 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, failed 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.” A perusal of the said provision do not indicate any authorization on the respondent Nos. 2 and 3 to impose any such penalty in the facts and circumstances of the present case or otherwise the provisions aforesaid. Section 60-B of the 1973 Act is extracted hereinunder : “60B. Payment of salary within time and without unauthorised deductions.— (1) Notwithstanding any contract to the contrary, the salary of a teacher or other employee of any college in respect of any period after the 31st day of March, 1975, shall be paid to him before the expiry of the 20th day or such earlier day as the State Government may, by general or the month in behalf, appoint, of the month next following special order in that respect of which or any part of which it is payable. (2) The salary shall be paid without deductions of any kind except those authorised by this Act, the Statutes or the Ordinances, or by any other law for the time being in force.” 12. A perusal of the said provisions also does not allow the respondent Nos. 2 and 3 to withhold salary or make deductions unless authorized in accordance with law. Sub-Section (2) of the aforesaid provision makes it clear that the deduction can be made only if authorized under the 1973 Act, the Statutes of the concerned University or the Ordinances, or by any other law for the time being in force. No law could be pointed out by the learned Standing Counsel under which such withholding was permissible by the respondent Nos. No law could be pointed out by the learned Standing Counsel under which such withholding was permissible by the respondent Nos. 2 and 3 in the present case. 13. Thus, for all the discussions and reasons recorded hereinabove, the impugned orders passed by the respondent Nos. 2 and 3 are legally unsustainable as they are not supported by any authority of law. The writ petition deserves to be allowed and is, accordingly, allowed. The impugned orders dated 20th May, 2009 and 25th May, 2009 are hereby quashed. The interim order dated 18.9.2009 is made absolute.