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Himachal Pradesh High Court · body

2018 DIGILAW 1170 (HP)

Block Development Officer, Paonta Sahib v. State Chief Information Commissioner

2018-06-27

TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The petitioner, who at the relevant time, happened to be the Public Information Officer, was imposed a penalty of Rs. 7000/- by the State Chief Information Commissioner and aggrieved thereby has filed the instant writ petition seeking quashing of the said order dated 29.10.2011 (hereinafter referred to as the ‘impugned order’). 2. The facts, in brief, are that respondent No. 2 filed an application under Right to Information Act, 2005 (for short the ‘Act’) to the Public Information Officer-cum-Block Development Officer (for short PIO), Paonta Sahib asking for census population for the year 2001 of the places mentioned in the said application. 3. The petitioner, as observed above, was posted as the Block Development Officer and vide his letter dated 01.02.2011 had returned the application to the petitioner on the ground that the said information could not be supplied by his office. Respondent No. 2 assailed the action of the petitioner by filing a complaint before respondent No. 1 which was allowed by respondent No. 1 vide its order dated 29.03.2011 wherein it was observed that the petitioner while returning the application filed by respondent No. 2 had not adhered to the provisions of the Act i.e. Section 6(3) and should have passed a speaking order with regard to the non-availability of the information sought and should have transferred the application to the relevant PIO for necessary action. 4. Consequent to the aforesaid order, the petitioner took steps for transfer of the application to the Municipal Council, Paonta Sahib vide his letter dated 03.06.2011 with the request to provide the said information. On 04.06.2011, the petitioner called for explanation of Shri Desh Raj, Panchayat Inspector, Block Development, Paonta Sahib, as to why he had not taken steps for providing the information after the receipt of order dated 29.03.2011 of State Chief Information Commissioner on 07.04.2011. On 09.06.2011, the office of respondent No.1 issued letter to the petitioner enclosing therein the copy of the complaint filed by respondent No. 2 and the petitioner was asked to appear in person. Consequently, on 18.06.2011, the PIO-cum-Executive Officer, Municipal Council, Paonta Sahib informed the petitioner that the information as sought for by respondent No. 2 had been supplied to him. 5. Consequently, on 18.06.2011, the PIO-cum-Executive Officer, Municipal Council, Paonta Sahib informed the petitioner that the information as sought for by respondent No. 2 had been supplied to him. 5. Upon this development, the petitioner vide his letter dated 27.06.2011 directed Shri Desh Raj, Panchayat Inspector, Development Block Paonta Sahib and Shri Bal Mukund Aggarwal, Panchayat Secretary, to attend the office of respondent No. 1 on 28.06.2011 and at the same time issued letter to the Registrar, State Information Commission, informing that information as sought for stands supplied to respondent No. 2 by the concerned PIO. However, on 28.06.2011, respondent No. 1 imposed penalty of Rs.14,000/- upon the petitioner on the ground of 56 days delay in furnishing information to respondent No.2. 6. This action of respondent No. 1 was assailed before this Court in writ petition in CWP No. 8418 of 2011 and the same was disposed of by this Court vide its order dated 12.10.2011 by permitting the petitioner to file a detailed reply to the notice that had been issued by respondent No. 1. Accordingly, the petitioner filed representation before respondent No. 1 and the same was partly allowed by respondent No. 1 vide its order dated 18.11.2011 and as against the penalty of Rs.14,000/-, the petitioner was imposed a penalty of Rs.7000/-. 7. Aggrieved by the aforesaid order, the petitioner has filed the instant petition on the ground that the order passed by respondent No. 1 is unfair, unjust and arbitrary and that there was no delay whatsoever on the part of the petitioner to furnish the information as sought for by respondent No. 2. 8. Respondent No. 2 even though served has not chosen to put in appearance and was ordered to be proceeded ex parte vide order dated 08.04.2013. As regards respondent No. 1 even though it has put in appearance but has not chosen to file reply. I have heard learned counsel for the parties and have gone through the material placed on record. 9. It is vehemently urged by learned counsel for the petitioner that the impugned order suffers from vice of arbitrariness and, therefore, should be quashed and set aside. It was further argued that the petitioner on receipt of the application had transferred it to the concerned authorities and, therefore, there was no lapse on his part. 9. It is vehemently urged by learned counsel for the petitioner that the impugned order suffers from vice of arbitrariness and, therefore, should be quashed and set aside. It was further argued that the petitioner on receipt of the application had transferred it to the concerned authorities and, therefore, there was no lapse on his part. He would also urge that the petitioner did not know the intricacies of the RTI Act and, therefore, he could not have been penalized. 10. I find no merit in the contention put-forth by the petitioner. It is more than settled that ignorance of law can be no excuse. Once the petitioner is designated as PIO, then all the more he is deemed to have knowledge and even otherwise the least that was required of him was to have acquainted himself thoroughly with the provisions of the RTI Act. Therefore, the explanation as sought to be put-forth by the petitioner at this stage clearly reflects the lackadaisical attitude of the petitioner. The only reasonable explanation for the cause of delay can be accepted and not lame excuses. 11. Noticeably, the Registrar of respondent No. 1 vide his letter dated 01.04.2011 had conveyed the petitioner the following directions of the Commissioner:- “From the plain reading of the order passed by PIO-cum-BDO, Paonta in response to RTI application of the present complainant, it is amply clear that he has not adhered to the provisions of RTI Act i.e. Section 6(3). He should have passed a speaking order as to the non-availability of information sought and transferred the application to the relevant PIO for necessary action. With a view to expedite supply of information to the application he is hereby directed to pass a speaking order as per the provisions of RTI Act under intimation to the applicant and also to the Commission.” 12. However, despite the aforesaid clear cut directions, the petitioner took no action whatsoever for more than 45 days and it is only then the respondent No. 2 was again constrained to approach respondent No. 1 vide his letter dated 16.05.2011 praying therein for initiating strict action against the petitioner, that the petitioner took no steps for supplying the requisite information. 13. 13. That apart, even at first place the petitioner had no justifiable reason for returning the application filed under RTI Act to respondent No. 2 by informing him that the information could not be supplied by him. 14. In addition to the above, it would be noticed that respondent No. 1 while imposing penalty upon the petitioner had given detailed reason for imposing the penalty as would be evident from the order, relevant portion whereof reads thus:- “The PIO has now filed reply to this show cause notice for consideration of the Commission. The PIO also appeared in person along with record. The contention of the PIO that RTI application dated 20.01.2011 of the complainant Shri Kainth was returned in original is corroborated from perusal of record produced. This is the main reason on account of which he has claimed that there was delay in implementing order of Commission because time was taken to find out the whereabouts of Shri Kainth and to obtain photocopy of the application. However on being questioned as to the standing practice, of official procedure followed in Govt. offices as to retain a copy of every paper under consideration (PUC) he admitted the lapse on the part of the concerned officials and assured to be careful in future. The other contentions of the PIO were not found convincing from the perusal of record produced. One of his contention is that orders of the Commission conveyed vide its letter dated 01.04.2011 were not placed before him by his office and when the facts came to his notice in the last week of May, 2011, he issued memo to Panchayat Inspector seeking his explanation. This contention is not accepted because it is the responsibility of the PIO to maintain RTI Register as per format of RTI Rules and to monitor the same on a periodical basis to ensure timely disposal of RTI applications. He cannot lay the blame on his subordinates for the same. Moreover, from the perusal of record it is observed that the Panchayat Inspector has submitted his explanation saying that he was on leave on the relevant date when the order of the Commission were received and the same were never given to him. This is simply a game of passing on the buck and cannot be accepted. Moreover, from the perusal of record it is observed that the Panchayat Inspector has submitted his explanation saying that he was on leave on the relevant date when the order of the Commission were received and the same were never given to him. This is simply a game of passing on the buck and cannot be accepted. Similarly another contention of the PIO that he could not be present on the date of hearing fixed on 28.06.2011 because of his being on leave is also not accepted because from the perusal of record it is observed that his earned leave application w.e.f. 24.06.2011 to 28.06.2011 was sanctioned by ADC-cum-Project Director on 14.09.2011 ex-post factor and it is not clear as to when did he apply for that leave and who was given charge of BDO during his earned leave. The authorization letter to represent the PIO was also not signed by the PIO but someone else from his office indicating thereby that the PIO did not show due concern for RTI matters. Another contention of the PIO is that the similar case was considered and decided by the State Information Commission wherein it was held that information should have been asked for former concern Department which is under control Central Govt. this contention is also not accepted for the reasons that section 6(3) specifically providers for transfer of RTI application where subject matter of information pertain to another public authority. The reproduction of Section 6 (3) will make the position clear:- “Where an application is made to a public authority requesting for an information- (i) which is held by another public authority; or (ii) The subject matter of which is more closely connected with the function of another public authority; The public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer. Provided that the transfer of an application pursuant to this subsection shall be made as soon as practicable but in no case later than five days from the date of receipt of the application. Thus at this stage of receipt of application at the level of the PIO the question of the jurisdiction was not involved. Provided that the transfer of an application pursuant to this subsection shall be made as soon as practicable but in no case later than five days from the date of receipt of the application. Thus at this stage of receipt of application at the level of the PIO the question of the jurisdiction was not involved. Even his own conduct by way of returning the application to the applicant proves that he never had in mind the jurisdiction of public authorities vis-a-vis the sought information. Section 20 (1) of RTI Act provides for imposition of penalty where State Information Commission at the time of deciding any complaint is of the opinion that the PIO has “without any reasonable cause” refused to receive an application for information. The present PIO also refused to receive the application when he returned the same to be submitted to another PIO whereas he should have transferred the same to concerned PIO as mentioned above. However, keeping in view the first contention of the PIO hat original RTI application was returned in original by his subordinates without keeping an office copy is accepted and for this lapse on the part of his subordinate he cannot be penalized. But question arises as to how much weight-age for this contention be given to consider the imposition of penalty. This should not be more than 50% of the penalty worked out for the delay of 56 days after the direction of the Commission and accordingly a penalty of Rs.7000/- is imposed upon him and the same be deposited in Government treasury under the head of account” 0070-OAS, 60-OS, 800-OR, 11-Receipt head under Right to Information Act, 2005. The copy of this order be sent to both the parties and file consigned to record.” 15. Undoubtedly, the scope of judicial review is being expanded day by day and now has been expanded to the extent of even correcting errors of facts. The copy of this order be sent to both the parties and file consigned to record.” 15. Undoubtedly, the scope of judicial review is being expanded day by day and now has been expanded to the extent of even correcting errors of facts. Yet judicial review of order passed by the quasi judicial authority is permissible only when the findings of the authority are found to be wholly perverse or the decision of the authority is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact but in case where there is exercise of power by quasi judicial authority in accordance with the statute and not on extraneous consideration, then there is hardly any scope of judicial review. 16. It is more than settled that this Court while exercising its writ jurisdiction cannot sit in appeal on the decision taken by the Chief Information Commissioner and the scope of judicial review is very limited. This power has to be exercised with great care and circumspection, especially, when respondent No. 1 while passing the order is functioning as a quasi judicial authority. Once there is no manifest error, procedural or legal, obviously, then the Court cannot interfere in its limited scope of jurisdiction. Consequently, no ground for interference is made out. 17. Accordingly, I find no merit in this petition and the same is dismissed, leaving the parties to bear their own costs.