Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 1094 (JHR)

Bina Kumari v. State of Jharkhand

2023-08-29

RAJESH SHANKAR

body2023
JUDGMENT : 1. The present writ petition has been filed for quashing the order dated 18th February, 2019 (Annexure-9 to the writ petition) passed by the Information Commissioner, Jharkhand State Information Commission, Ranchi (hereinafter to be referred as ‘the Commission’) in Appeal Case no.2080 of 2015, whereby the District Programme Officer-cum-Public Information Officer, Bokaro- respondent no.4 has been imposed penalty of Rs.25,000/- under Section 20(1) of the Right to Information Act, 2005 (hereinafter to be referred as ‘the Act, 2005’) and recommendation has been made for initiation of departmental proceeding against the said officer under Section 20(2) of the said Act with a further direction to the District Programme Officer, Bokaro, who was posted on 14th November, 2017, to get Rs.5,000/- deducted from his/her salary in five equal instalments and to deposit the same in the district treasury as well as to send its proof to the Commission. 2. The relevant facts emanating from the writ petition is that the petitioner was posted as District Superintendent of Education-cum- District Programme Officer, Bokaro-cum-Public Information Officer for the period from 6th July, 2015 to 14th September, 2018. Thereafter, she was transferred to the post of District Superintendent of Education, Deoghar on 15th September, 2018 and she joined the said post on 18th September, 2018. 3. The respondent no.6 filed an application under the Act, 2005 on 28th August, 2014 addressing the District Education Officer-cum-Public Information Officer, Bokaro, seeking third party information, which, according to the petitioner, was sent to the respondent no.6 by her predecessor i.e. the respondent no.4 vide letter no.34/R.T.I./07/14- 15/181 dated 14th February, 2015 through registered post with A/D. Despite providing the said information, the respondent no.6 again filed similar application on 9th April, 2015 before the respondent no.4, which, according to the petitioner, was also sent to him vide letter no.34/R.T.I./07/14-15/840 dated 6th July, 2015. The required information was once again provided to the respondent no.6 by the respondent no.4 vide letter dated 6th November, 2015 in pursuance of his application dated 2nd September, 2015 and information to that effect was also sent to the Commission vide letter dated 26th April, 2017, stating that in compliance of memo no.26875 dated 28th November, 2016 information was already provided to the respondent no.6. 4. 4. However, on 14th November, 2017 an order was passed by the Commission, directing the petitioner to provide information to the respondent no.6 under her certificate, as the information was earlier provided to him by the concerned third party i.e. Sadhucharan Rawani and the next date was fixed as 14th June, 2018. 5. Finally, vide impugned order dated 18th February, 2019, the Commission imposed penalty of Rs.25,000/- upon the concerned Public Information Officer under Section 20(1) of the Act, 2005 and also recommended for initiation of departmental proceeding against him/her under Section 20(2) of the Act, 2005 with a further direction to the District Programme Officer, Bokaro, who was posted on 14th November, 2017, to get Rs.5,000/- per month deducted from his/her salary in five equal instalments and to deposit the same in the district treasury as well as to send its proof to the Commission. 6. Mr. Sanjoy Piprawall, learned counsel appearing on behalf of the respondent no.2 submits that though the counter affidavit has not been filed on behalf of the said respondent, yet he has procured the original record of Appeal Case no.2080 of 2015 from the office of the Commission for proper adjudication of this case. He defends the impugned order dated 18th February, 2019 and submits that since the petitioner, while functioning as the Public Information Officer of the concerned office, did not comply the order dated 14th November, 2017 passed by the Commission, she has rightly been imposed penalty under Section 20(1) of the Act, 2005 and recommendation has been made for initiation of departmental proceeding against her under Section 20(2) of the said Act. 7. Though the Vakalatnama has been filed on behalf of the respondent no.6, however, no one appears on behalf of the said respondent. 8. Learned counsel for the petitioner submits that since the petitioner was the District Programme Officer, Bokaro on 14th November, 2017, the impugned order passed by the Commission has adversely affected her despite the fact that she was not the District Programme Officer, Bokaro-cum-Public Information Officer on the both the aforesaid dates i.e. on 28th August, 2014 and 9th April, 2015 when the respondent no.6 had filed application under the Act, 2005 in the said office. It has already been held by this Court in W.P.(C) No.4377 of 2019 (Tarni Prasad Mukhia Vs. It has already been held by this Court in W.P.(C) No.4377 of 2019 (Tarni Prasad Mukhia Vs. The Jharkhand State Information Commission & Ors.) that the concerned officer who while discharging the duty of Public Information Officer on the date of application made by the information seeker under the Act, 2005 neither provides information within a period of 30 days as provided under Section 7(1) of the said Act nor rejects the said application for the reasons specified in Sections 8 and 9 of the Act within the said period can only be held liable for imposition of penalty under Section 20(1) or to face departmental proceeding as per the recommendation of the Commission under Section 20(2) of the Act, 2005. 9. This Court finds force in the submission of the learned counsel for the petitioner. The petitioner has specifically stated in the writ petition that she remained posted as District Superintendent of Education-cum- District Programme Officer, Bokaro-cum-Public Information Officer from 6th July, 2015 to 14th September, 2018, whereas the respondent no.6 had made two applications under the Act, 2005 on 28th August, 2014 and 9th April, 2015. The period of thirty days as provided under Section 7(1) of the Act, 2005 had already lapsed before joining of the petitioner on the said post. 10. In the case of Tarni Prasad Mukhia (Supra.), this Court, while deciding the similar issue, has held as under:- “8. Section 6(1) of the Act, 2005 provides that a person, who desires to obtain any information under the said Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed to the Central Public Information Officer or the State Public Information Officer, as the case may be, of the concerned public authority specifying the particulars of the information sought by him or her. 9. 9. Section 7(1) provides disposal of such request, according to which, subject to the proviso to sub-section (2) of Section 5 or the proviso to sub-section (3) of Section 6, the Central Public Information Officer or the State Public Information Officer, as the case may be, on receipt of a request under Section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in Sections 8 & 9. 10. On conjoint reading of Section 6(1) as well as Section 7(1) of the Act, 2005, it would emerge that the Central Public Information Officer or the State Public Information Officer has to provide the information within 30 days of receipt of such application or to reject the said request for cogent reasons i.e. the reasons specified under Sections 8 & 9 of the said Act. 11. Since the respondent No.3 sought information from the Public Information Officer of Zila Parishad, Gumla on 05.08.2014, the officer who was holding the post of the District Engineer-cum-Public Information Officer during the relevant time, was under obligation to provide information to the petitioner as mandated under Section 7(1) of the Act, 2005. The representative of the Public Information Officer had appeared before the Commission on 20.06.2016 and had submitted that the required information had already been sent to the appellant (the respondent No.3 herein). So far as the petitioner is concerned, he assumed the charge of the said post in the month of July, 2017 and before that the respondent No.3 had already preferred second appeal being Appeal Case No. 1994/2015 before the Commission. The petitioner however appeared on few dates before the Commission. 15. So far as the petitioner is concerned, he assumed the charge of the said post in the month of July, 2017 and before that the respondent No.3 had already preferred second appeal being Appeal Case No. 1994/2015 before the Commission. The petitioner however appeared on few dates before the Commission. 15. On perusal of the provisions of Section 20(1), it would transpire that the Central Information Commissioner or the State Information Commissioner, as the case may be, at the time of deciding any complain or appeal, has to form an opinion that (i) the Central Public Information Officer or the State Information Officer, as the case may be, has without any reasonable cause refused to receive the application for information (ii) has not furnished the information within the time specified under sub-section (1) of Section 7 (iii) malafidely denied the request for information (iv) has intentionally 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. So far as Section 20(2) of the Act, 2005 is concerned, the said conditions are pari-materia to those in Section 20(1), except that the word ‘persistently’ has been mentioned in condition No.(i). 18. Section 20 of the Act, 2005 is to be treated as a harsh provision and as such before imposing penalty or recommending for initiation of departmental proceeding, an opinion has to be formed by the Commission that the Public Information Officer has not furnished the information within the time specified without any reasonable cause. There must be an objective consideration by the Commission on the basis of the relevant materials on which the conclusion about such action is drawn. 19. Since the petitioner was not posted as the Public Information Officer on the date of making application under the Act, 2005 by the respondent No.3 i.e. on 05.08.2014, the conditions Nos. (i) & (ii) shall not apply to him. So far as other conditions are concerned, the same are also not proved against the petitioner. It is also not the case that the petitioner at any point of time has refused to receive an application seeking information or has not furnished information within the time frame or has denied the request for information with malafide intention or has knowingly given incorrect, incomplete or misleading information to the respondent No.3. It is also not the case that the petitioner at any point of time has refused to receive an application seeking information or has not furnished information within the time frame or has denied the request for information with malafide intention or has knowingly given incorrect, incomplete or misleading information to the respondent No.3. Moreover, there is no such allegation against the petitioner that he destroyed the information which was the subject of the request or he obstructed in any manner in furnishing the information. That apart, the Commission in the impugned order has strongly put reliance on the statement made by the then Public Information Officer on 20.06.2016 and has also considered the delay occurred in providing the information while imposing penalty against the petitioner without having any concrete evidence to show that the act of the petitioner, who was assigned the duty of the Public Information Officer in the month of July, 2017 was not bonafide.” 11. On perusal of the impugned order dated 18th February, 2019, it appears that the Commission misdirected itself while imposing penalty under Section 20(1) as well as recommending initiation of departmental proceeding under Section 20(2) of the Act, 2005 against the officer, who was posted as District Programme Officer, Bokarocum- Public Information Officer on 14th November, 2017 i.e. the petitioner on the ground of non-compliance of its order passed on the said date. 12. Since the petitioner was not posted in the said office on 28th August, 2014 and 9th April, 2015 rather she had joined there on 6th July, 2015, she cannot be held liable so as to be imposed penalty under Section 20(1) or to face departmental proceeding under Section 20(2) of the Act, 2005. 13. The impugned order dated 18th February, 2019 is, accordingly, quashed. 14. The writ petition is allowed.