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2023 DIGILAW 1212 (JHR)

Arun Kumar Ekka v. State of Jharkhand

2023-10-04

RAJESH SHANKAR

body2023
ORDER : HON'BLE MR. JUSTICE RAJESH SHANKAR The present writ petition has been filed for quashing the order dated 05.05.2020 (Anneuxre-20 to the writ petition) passed by the Jharkhand State Information Commission, Ranchi (hereinafter to be referred as “the Commission”) in Appeal Case No. 1257 of 2013 whereby the learned Commission while modifying the earlier order dated 03.03.2020 passed in the said appeal, has directed that the said order would be effective on the officer who was posted as Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa on 09.04.2014. Further prayer has been made for quashing the order dated 03.03.2020 (Anneuxre-18 to the writ petition) passed by the Commission in Appeal Case No. 1257 of 2013 whereby penalty of Rs.25,000/- has been imposed upon the Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa under Section 20(1) of the Right to Information Act, 2005 (in short, “the Act, 2005) to be deducted from salary of the said officer in five equal monthly instalments w.e.f. March, 2020 also with recommendation to initiate departmental proceeding against him/her under Section 20(2) of the said Act. 2. While assailing the impugned order dated 05.05.2020 passed in Appeal Case No. 1257 of 2013, the main submission of learned counsel for the petitioner is that the petitioner cannot be held responsible for not providing the required information to the appellant i.e., the respondent no. 3 herein, as per the direction contained in notice/letter no. 3556 dated 09.04.2014 issued by the Commission particularly because the same is contrary to provisions of Section 20 read with Section 7(1) of the Act, 2005. 3. According to learned counsel for the petitioner, it has already been held by this Court in the case of Tarni Prasad Mukhia Vs. The Jharkhand State Information Commission through its Secretary & Ors., reported in 2023 SCC OnLine Jhar. 1132, that the officer, who was posted as Public Information Officer of a particular office on the day the application of the information seeker was received in the said office, can only be said to be responsible to be proceeded with by the Commission under Section 20(1) or Section 20(2) of the Act, 2005 as the said officer was under statutory obligation to provide information to the information seeker within the stipulated period of one month from the date of filing of the said application. 4. 4. It is further submitted that learned Commission has committed a serious error in modifying the earlier order dated 03.03.2020, which otherwise was not in conformity with law, by giving direction as contained in the impugned order dated 05.05.2020 that the same would be effective on the officer who was posted as Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa on 09.04.2014 i.e. the day the notice/letter no. 3556 was issued by the Commission directing the concerned Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa to provide the required information to the respondent no.3. In fact, the petitioner assumed the charge of Sub-Divisional Officer, Nagar Untari on 13.02.2014 whereas the application under the Act, 2005 was received in the said office much earlier on 29.04.2013. Hence, he was neither liable to be saddled with penalty under Section 20(1) nor to face departmental proceeding as per the recommendation of the Commission under Section 20(2) of the Act, 2005. 5. Learned counsel for the petitioner, in support of his submission, also puts reliance on a judgement rendered by this Court in the case of Sanjay Kumar Vs. The State of Jharkhand & Ors, reported in 2023 SCC OnLine Jhar 632. 6. Mr. Sanjoy Piprawall, learned counsel appearing on behalf of the respondent no. 2, produces the original records of Appeal Case No. 1257 of 2013 and while justifying the impugned order dated 05.05.2020 passed by the Commission submits that the said order has rightly been passed as the petitioner was responsible for complying the order as contained in notice/letter no. 3556 dated 09.04.2014 whereby the concerned Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa was directed to provide the required information to the respondent no. 3. Since the petitioner was posted as the Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa on the said date, he was rightly held responsible for not providing the required information to the respondent no. 3. 7. Learned counsel for the respondent no. 3 as well as the respondent no. 5 also defend the impugned order dated 05.05.2020 and submit that the same being justified does not require any interference of this Court. 8. Heard learned counsel for the parties and perused the materials available on record. 9. The admitted facts emanating from the record is that the application under the Act, 2005 was received in the office of the Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa on 29.04.2013. 8. Heard learned counsel for the parties and perused the materials available on record. 9. The admitted facts emanating from the record is that the application under the Act, 2005 was received in the office of the Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa on 29.04.2013. The officer, who was discharging the duty of the Public Information Officer of the said office, was under statutory obligation to provide the required information to the respondent no. 3 within 30 days of the receipt of the request as mandated under Section 7(1) of the Act, 2005 or to reject such request for cogent reasons i.e., the reasons specified under Sections 8 and 9 of the said Act within the said period. The petitioner assumed the charge of Sub-Divisional Officer, Nagar Untari, Garhwa on 13.02.2014 thereby also started discharging the duties of the Public Information Officer of the said office much after lapse of the specified time limit of 30 days from the date of receipt of the application of the respondent no. 3 in the said office which had ended on 28.05.2013. 10. This Court had an occasion to deal with the said issue in the case of Tarni Prasad Mukhia (supra), the relevant paragraphs of which are quoted as under: “14. For better appreciation of the said aspect, it would be appropriate to quote Section 20 of the Act, 2005 which reads as under: “20. 10. This Court had an occasion to deal with the said issue in the case of Tarni Prasad Mukhia (supra), the relevant paragraphs of which are quoted as under: “14. For better appreciation of the said aspect, it would be appropriate to quote Section 20 of the Act, 2005 which reads as under: “20. Penalties.—(1) Where the Central Information Commission or 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 subsection (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 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 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.” 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). 16. In the case of Manohar Vs. State of Maharashtra & Anr. reported in (2012) 13 SCC 14 , the Hon’ble Supreme Court has held as under:- “15. The State Information Commissions exercise very wide and certainly quasi-judicial powers. In fact their functioning is akin to the judicial system rather than the executive decision-making process. It is a settled principle of law and does not require us to discuss this principle with any elaboration that adherence to the principles of natural justice is mandatory for such Tribunal or bodies discharging such functions. 16. The State Information Commission has been vested with wide powers including imposition of penalty or taking of disciplinary action against the employees. Exercise of such power is bound to adversely affect or bring civil consequences to the delinquent. Thus, the provisions relating to penalty or to penal consequences have to be construed strictly. It will not be open to the Court to give them such liberal construction that it would be beyond the specific language of the statute or would be in violation of the principles of natural justice.” 17. In the case of Chief Information Commissioner & Anr. Vs. State of Manipur & Anr. reported in (2011) 15 SCC 1 , the Hon’ble Supreme Court has held that before passing the order of penalty under Section 20 of the Act, 2005, the Commissioner must satisfy himself that the conduct of the Information Officer was not bona fide. 18. In the case of Chief Information Commissioner & Anr. Vs. State of Manipur & Anr. reported in (2011) 15 SCC 1 , the Hon’ble Supreme Court has held that before passing the order of penalty under Section 20 of the Act, 2005, the Commissioner must satisfy himself that the conduct of the Information Officer was not bona fide. 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. 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. 20. 20. Under the said circumstances, this Court is of the view that the Information Commissioner while passing the impugned order of imposing penalty of Rs.25,000/- against the petitioner under Section 20(1) and directing his controlling authority to initiate departmental proceeding against him under Section 20(2) of the Act, 2005 has transgressed the provisions of sub-section (1) and sub-section (2) of Section 20 of the Act, 2005. The observation made by the Information Commissioner in the said order to the extent that the petitioner was not deliberately providing the information to the respondent No.3 and that he was misleading the Commission also do not appear to be correct.” 11. So far as the respondent no. 5 is concerned, he assumed the charge of Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa on 29.03.2017. Thus, neither the petitioner nor the respondent no. 5 can be said to be responsible to be proceeded with under Sections 20(1) and 20(2) of the Act, 2005. 12. Similar issue came to be considered by this Court in the case of Sanjay Kumar (supra) in which, vide judgement dated 18.05.2023, it has been held as under: “7. Heard learned counsel for the parties and perused the relevant materials available on record. It appears that an application seeking information under the Act, 2005 was filed by the respondent No.3 on 20.06.2014 before the Assistant Settlement Officer-cum-Public Information Officer, Settlement Office, Hazaribagh and the then Public Information Officer of the said office failed to provide the required information to the respondent No.3 within the statutory period of 30 days in view of the provisions of Section 7 of the Act, 2005. 9. The petitioner was authorized to act as the Public Information Officer much after supplying information to the respondent No.3. The officer, who was notified as the Public Information Officer of the Settlement Office, Hazaribagh at the time when the application under the Act, 2005 was made by the respondent No.3, could have been held responsible as the said officer was under statutory obligation to provide information to the respondent No.3 within the stipulated period of one month from the date of filing of the application under the Act, 2005. 15. 15. In the present case, the respondent No.2 while reviewing his earlier order and imposing penalty under Section 20(1) as well as directing to initiate departmental proceeding under Section 20(2) of the Act, 2005 against the petitioner, has not provided any opportunity of hearing to him and thus the impugned order dated 02.06.2017 has been passed in contravention of the 1 st Proviso to Section 20(1) of the Act, 2005 as well as against the settled proposition of law laid down by the Hon’ble Supreme Court in this regard. 20. In the case in hand, the facts available on record suggest that the respondent No.4 was also not acting as the Public Information Officer during the period when the application under the Act, 2005 was filed by the respondent No.3 and the statutory period of one month for providing information had elapsed. As such, to do the complete justice between the parties, I am of the view that the order dated 13.4.2017, though not challenged in the present writ petition, is also liable to be quashed.” 13. The Commission while passing the impugned order dated 05.05.2020 misdirected itself in observing that the order dated 03.03.2020 passed in Appeal Case No. 1257 of 2013 would be effective on the officer who was posted as Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa on 09.04.2014 i.e., the day on which the notice/letter no. 3556 was issued by the Commission directing the concerned Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa to provide required information to the respondent no. 3. The issue has already been set at rest by this Court in the aforesaid cases that the officer, who held the post of Public Information Officer on the date when the application of an information seeker was received in his/her office neither provided the information within the period specified under Section 7(1) of the Act, 2005 nor rejected the said request for cogent reasons i.e., the reasons specified under Sections 8 and 9 of the said Act, can only be proceeded with by the Commission under Sections 20 (1) and 20(2) of the said Act as the case may be. 14. Admittedly, neither the petitioner nor the respondent no. 5 was posted as Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa on 29.04.2013 i.e., the day when the application of the respondent no. 3 under the Act, 2005 was received in the said office. 14. Admittedly, neither the petitioner nor the respondent no. 5 was posted as Public Information Officer-cum-Sub-Divisional Officer, Nagar Untari, Garhwa on 29.04.2013 i.e., the day when the application of the respondent no. 3 under the Act, 2005 was received in the said office. Under the said circumstance, the impugned order dated 05.05.2020 passed by the Jharkhand State Information Commission in Appeal Case No. 1257 of 2013 cannot be sustained in law and the same is accordingly quashed. Since the order dated 03.03.2020 passed by the Commission is also contrary to the settled proposition of law, the same is also quashed. The matter is remanded to the Commission to find out as to which officer was responsible for not providing the information to the respondent no. 3 within the period specified under Section 7(1) of the Act, 2005. 15. The writ petition is accordingly disposed of.