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2023 DIGILAW 1449 (JHR)

Srikant Kaibart v. State of Jharkhand

2023-12-08

SUJIT NARAYAN PRASAD

body2023
JUDGMENT : 1. This writ petition is under Article 226 of the Constitution of India, whereby and whereunder, the order dated 12.05.2011 passed by the Information Commissioner, has been assailed, by which, the penalty of Rs.25,000/-has been imposed in exercise of power conferred under Section 20(1) of the Right to Information Act (hereinafter referred to as the Act, 2005). 2. The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, which reads as under:- 3. It is the case of the writ petitioner that he was the Secretary of Chandan Kiyari, Fisherman, Cooperative Society Ltd. registered under the Jharkhand Cooperative Societies Act, 1935. The petitioner received letter bearing no.422 dated 23.08.2010 issued by the District Co-operative Officer cum-Public Information Officer. By the said letter the petitioner was informed that the respondent no.3 has sought information on 12 points and since the information sought for was related to the society of which the petitioner is the Secretary and hence direction was issued to him to furnish the information sought for. 4. Vide order dated 23.08.10 passed by Learned Information Commissioner, the petitioner was declared as the deemed Public Information Officer without issuing any notice to him as to why he be not declared so and was further directed to furnish the information sought for by the respondent no.3.That in view of the directions of the District Co-operative Officer, Bokaro and the order of the Learned Information Commissioner dated 23.08.10 the petitioner furnished the information sought for by the respondent no.3. 5. The petitioner appeared before the Information Commissioner and informed the Commissioner that the information sought for had been furnished to the respondent no.3 and further the petitioner produced postal receipt to show that the information had been sent at the addressed of the respondent no.3 by the registered post but the respondent no.3 did not appear and hence the appeal could not be disposed of on that date. 6. It is the further case of the petitioner that he was under bonafide impression that he had already informed the Commissioner of the fact that the information had already been furnished to the respondent no.3 and the same had been sent at the postal address of respondent no.3, as such, nothing more was required to be done. 7. The petitioner did not appear before the Information Commissioner on subsequent dates. 8. 7. The petitioner did not appear before the Information Commissioner on subsequent dates. 8. All of a sudden the petitioner was informed by the District Cooperative Officer, Bokaro vide letter no.231 dated 01.06.2011, informing him that appeal case no.2528 of 2010 had been disposed of by the Information Commissioner and penalty of Rs.25,000/-has been imposed on him. By the said letter the petitioner was asked to deposit a sum of Rs.25,000/-in the Government Treasury and produce a copy of a the Challan before the District Co-operative Officer, Bokaro. 9. It is the case of the writ petitioner that when the petitioner appeared before the Information Commissioner and stated the fact that the information sought for had already been furnished, but no notice from the Information Commissioner informing him of the next date of hearing nor he was informed that the respondent no.3 filed objection to the information furnished by him. 12. On 12.05.2011, the District Co-operative Officer, Bokaro was present before the Commission. It is submitted that the Learned Commission had the option of directing the District Co-operative Officer, Bokaro to ensure the presence of the petitioner before the Commissioner on the next date of hearing. 13. The Information Commissioner, without exhausting the remedies available to it to ensure the presence of the petitioner, has passed the impugned order imposing a penalty of Rs.25,000/-on the petitioner, hence, this writ petition. 14. It is the evident from the material available on record that the writ petitioner, while working as Secretary of Chandankiyari Matasya Jeevi Sahyog Samiti has been attributed with the allegation of non-supply of information to the complainant, the information seeker. 15. It has further submitted that the attributability of the writ petitioner was in the capacity of the custodian of the information sought for who has not supplied the detailed information. 16. The information seeker when not received the due information, he has preferred 1st appeal under Section 19(1) of the Act, 2005 and on failure of the information being supplied the second appeal under Section 19(3) of the Act, 2005 was preferred before the State Information Commission and the second appeal was registered as Appeal No.2528 of 2010 by the State Information Commission. 17. The State Information Commission has issued show cause as to why the penalty of Rs.25,000/-be not inflicted due to not taking the endeavour in supplying the information so sought for by the information seeker. 17. The State Information Commission has issued show cause as to why the penalty of Rs.25,000/-be not inflicted due to not taking the endeavour in supplying the information so sought for by the information seeker. 18. Show cause reply said to have been filed by the writ petitioner by denying the aforesaid liability. 19. It has been submitted orally that the show cause has not been appended with the paper book. The aforesaid document was supplied to the concerned public information officer. 20. Further, it has been submitted that he has not received the details of the communication to be furnished within the statutory period of 30 days as is the period fixed for supply of documents in view of the provision of Section 7 of the Act, 2005. 21. The State Information Commission has not accepted the said reply and passed the order dated 12.05.2011 (impugned) by imposing penalty of Rs.25,000/-, which is under challenge in this writ petition. 22. Learned counsel appearing for the writ petitioner has submitted that the order passed by the State Information Commission suffers from patent illegality. 23. It has been contended that the due information was furnished to the Information Commission, therefore, the order casting liability upon the writ petitioner, cannot be said to be proper. 24. While on the other hand, Mr. Sanjoy Piprawall, learned counsel for the respondents has defended the order impugned. He has taken the ground that it is incorrect on the part of the writ petitioner to take the ground that he was not at all liable to supply the document for its onwards transmission to the information seeker, rather, he, being the custodian of the record in the capacity of the secretary of the concerned society, it was incumbent upon him to supply the said information forthwith to the public information officer for its onwards supply in favour of the information seeker so as to comply the statutory mandate under Section 7 of the Act, 2005. 25. But the same has not been done, hence, when the matter went before the Commission, then the same has been found to have substance. 26. Show cause notice has been issued so as to pass appropriate order which has been conferred upon him under Section 20 (i) of the Act, 2005. Show cause was replied. 25. But the same has not been done, hence, when the matter went before the Commission, then the same has been found to have substance. 26. Show cause notice has been issued so as to pass appropriate order which has been conferred upon him under Section 20 (i) of the Act, 2005. Show cause was replied. The same has not been found to be satisfactory, hence, the order inflicting penalty of Rs.25,000/-has been passed. 27. This Court has heard the learned counsel for the parties and gone across the pleading made in the writ petition and the counter affidavit as also the order passed by the State Information Commission. 28. The statutory duty has been casted under the Act, 2005 as to provide the information to the Information Seeker by the Public Information Officer. 29. Section 7 casts liability upon the Public Information Office to supply the Information within the statutory period of 30 days. 30. Section 5(5) of the Act, 2005 casts liability upon the custodian of the document to supply the same to the Public Information Officer, if the details which has been sought for by the Information Seeker and communicated to the custodian of the document, then it is bounded duty as per the aforesaid provision to supply the said document forthwith to the Public Information Officer so as to comply and fulfill the object of Section 7 of the Act, 2005. 31. The provision of first appeal as also second appeal is provided under Section 19 of the Act, 2005. 32. The first appellate stage is before the department itself, while the second appellate stage is before the independent commission, i.e., the State Information Commission as provided under sub section (3) of Section 19 of the Act, 2005. 33. The State Information Commission has conferred with the power under Section 20(1) (2) of the Act, 2005. 34. Sub Section (1) of Section 20 of the Act, 2005 thereof confers power upon the State Commission to inflict maximum Rs.25,000/-by way of penalty, while sub section (2) thereof is to make recommendation to initiate departmental proceeding against the concerned public servant who is either found to be involved in violation of the statutory duty as casted under Section 7 of the Act, 2005. 35. 35. Here, in the given facts of the case, the writ petitioner was the Secretary of the Cooperative Society, the information, from him, has been sought to be provided to the Information Seeker. 36. The admitted position herein is that equal liability is to be casted on account of failure of discharge of statutory duty. 37. Admittedly, herein the writ petitioner was the Secretary of the concerned Cooperative Society and when the application was filed for seeking Information by the Information Seeker before the Public Information Officer, the same was supplied to the petitioner in the capacity of the custodian of the document, which is the admitted fact as per the record, which has been provided to this Court for its perusal vide order dated 02.05.2023. 38. But the writ petitioner has not supplied the document or the Information to the Public Information Officer for its onward transmission to the Information Seeker. 39. The Information Seeker, in consequence thereof, has filed first appeal and thereafter, the second appeal before the Commission. The Information Seeker, took the ground of failure in discharge of the statutory duty. 40. The Information Commission, on being satisfied, had issued notice to the writ petitioner asking to reply as to why the penalty of Rs.25,000/-be not inflicted on account of failure of statutory duty. 41. The show cause was responded as has been stated on behalf of the writ petitioner. The reply to show cause notice has been found to be not satisfactory, thereafter, order of inflicting Rs.25,000/-by way of penalty was imposed, which is impugned in this writ petition. 42. This Court has perused the record and found therefrom that the application was filed for seeking information is dated 18.08.2010 and within five days, i.e., 23.08.2010, the same was communicated to the Secretary of the concerned Society. 43. It further appears that the same was also found to be accepted as per the acknowledgement receipt given on 14.09.2010. 44. The fact about failing in discharge of the statutory duty by the writ petitioner is evident from the record itself. 45. The Information Commission by considering the aforesaid fact and on failure in discharge of statutory duty has found the writ petitioner liable for penalty of Rs.25,000/-as provided under Section 20(1) of the Act, 2005. 46. 44. The fact about failing in discharge of the statutory duty by the writ petitioner is evident from the record itself. 45. The Information Commission by considering the aforesaid fact and on failure in discharge of statutory duty has found the writ petitioner liable for penalty of Rs.25,000/-as provided under Section 20(1) of the Act, 2005. 46. The Right to Information Act, 2005 has been enacted for the purpose of providing information to the concerned Information Seeker so as to maintain the fairness and transparency in the decision making process by the authority at different levels. 47. The different provisions have been made casting liability along with the penalty in case of failure in discharge of the said statutory duty. 48. If the writ petitioner being the Secretary, after receipt of the requisition to supply information, has not chosen to furnish the details of information, then in such circumstances, the writ petitioner will be said to failed in discharge of the statutory duty, as was to be exercised under Section 5(5) of the Act, 2005. 49. The Commission, in such circumstances, issued show cause notice and inflicted penalty of Rs.25,000/-, the same according to the considered view of this Court, cannot be said to suffer from an error by showing interference by issuing writ of Certiorari. 50. The principle to issue writ of Certiorari is to see the error apparent on the face of record apart from that ground if the order is without jurisdiction, as has been held by the Hon’ble Apex Court in the case of Syed Yakoob Vrs. K.S. Radhakrishnan and Ors., A.I.R. 1964 Supreme Court 477, wherein at paragraph no.7 Their Lordships have been pleased to hold as follows:- “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233 ); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : ( AIR 1958 SC 398 ) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168 . 51. Reference in this regard also may be made to the judgment rendered by the Hon’ble Supreme Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors., AIR 1955 Supreme Court 233, it has been held at Paragraph-21, as hereunder :- “…….as to the character and scope of the writ of ‘certiorari’ and the conditions under which it could be issued. The question has been considered by this Court in ‘Parry and Co. v. Commercial Employees’ Association, Madras,’ AIR 1952 SC 179 (L):-‘Veerappa Pillai v. Raman and Raman Ltd.’ AIR 1952 SC 192 (M); ‘Ebrahim Aboobaker v. Custodian General of Evacuee Property New Delhi,’ AIR 1952 SC 319 (N), and quite recently in AIR 1954 SC 440 (C). On these authorities, the following propositions may be taken as established: (1) ‘Certiorari’ will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in “certiorari”…….” 52. In another judgment of Hon'ble Apex Court in Sawarn Singh and Anr. Vrs. State of Punjab and Ors., (1976) 2 SCC 868 their Lordships while discussing the power of writ under Article 226 for issuance of writ of certiorari has been pleased to hold at paragraph nos.12 and 13 as under: “12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra)……… 13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.” 53. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.” 53. This Court, in view of the aforesaid settled position and on the basis of the discussion made hereinabove, is of the view that it is not a case where any ground has been made out showing interference by issuing writ of Certiorari. 54. In the result, the instant petition fails and is dismissed. 55. Pending Interlocutory Application(s), if any, stands disposed of.