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2023 DIGILAW 718 (JHR)

Sanjay Kumar v. State of Jharkhand

2023-05-18

RAJESH SHANKAR

body2023
JUDGMENT : The present writ petition has been filed for quashing the order dated 02.06.2017 (Annexure-12 to the writ petition) passed by the Information Commissioner, Jharkhand State Information Commission [hereinafter referred to as ‘the Commission’], Ranchi-the respondent No.2 in Appeal Case No. 2336 of 2014 whereby a penalty of Rs.25,000/- has been imposed upon the petitioner under Section 20(1) of the Right to Information Act, 2005 [hereinafter referred to as ‘the Act, 2005’] with a further direction issued to the respondent No.5 to initiate departmental proceeding against him under Section 20(2) of the Act, 2005. 2. Learned Sr. counsel for the petitioner submits that the respondent No.3 had filed an application on 20.06.2014 for providing details of some land situated at Mouza-Khurd Khuntikewal, Thana No. 44, and Mouza-Kanchanpur, Thana No. 147 of Hunterganj Block under Chatra District. However, the then Assistant Settlement Officer-cum-Public Information Officer, Hazaribagh did not supply those information to the respondent No.3 within the statutory period of 30 days. Thereafter, the respondent No.3 preferred an appeal before the Settlement Officer at Hazaribagh on 23.07.2014, however, the required information was not supplied to him. Subsequently, the respondent No.3 preferred second appeal before the respondent No.2 on 07.11.2014 which was registered as Appeal No. 2336 of 2014. A notice was issued to the Public Information Officer-cum-Assistant Settlement Officer, Hazaribagh vide letter No. 5695 dated 05.06.2015 to show cause by presenting himself before the Commission on 01.07.2015 as to why an appropriate order should not be passed against him for not providing the required information to the respondent No.3, failing which an ex-parte order would be passed against him. The Public Information Officer did not appear before the Commission on 01.07.2015 and hence last chance was given to him to provide the required information to the respondent No.3 and to ensure his presence before the Commission on the next date fixed i.e. 05.10.2015. Thereafter, the Public Information Officer-cum-Assistant Settlement Officer, Hazaribagh issued letter dated 02.07.2015 to the Officer-in-Charge, District Record Room, Chatra to supply the required information to the respondent No.3 which was finally supplied to him by the Officer-in-Charge, District Record Room, Chatra vide his letter as contained in memo No. 39 dated 13.07.2015 and the copies of the same were sent to the Public Information Officer-cum-Assistant Settlement Officer, Hazaribagh as well as the Commission. 3. Learned Sr. 3. Learned Sr. counsel further submits that though the required information was supplied to the respondent No.3, the Commission vide order dated 13.04.2017 passed in Appeal No. 2336 of 2014, imposed a penalty of Rs.25,000/- upon the respondent No.4 under Section 20(1) of the Act, 2005 observing that the Public Information Officer, Hazaribagh was given last chance either to file explanation before the Commission or to provide the required information to the respondent No.3 vide order dated 31.08.2016, however, he failed to do so. Thereafter, the respondent No.4 vide application dated 19.05.2017 informed the respondent No.2 that the Assistant Settlement Officer, Hazaribagh, who was posted on 31.08.2016 and was notified as the Public Information Officer, should be held responsible for non-supply of the information to the respondent No.3 whereupon the respondent No.2 vide the impugned order dated 02.06.2017 reviewed his earlier order whereby the petitioner was imposed a penalty of Rs.25,000/- to be realized in five equal instalments from his salary. It was further directed that a departmental proceeding be initiated against the petitioner under Section 20(2) of the Act, 2005. 4. Learned Sr. counsel for the petitioner also submits that the application under the Act, 2005 was filed by the respondent No.3 on 20.06.2014 and at that time, the petitioner was not notified as the Public Information Officer of the Settlement Office, Hazaribagh. In fact, the petitioner was notified as the Public Information Officer w.e.f. 02.02.2016 and hence he may not be penalized as there was no fault on his part. The respondent No.2 had in fact become functus-officio after passing the order dated 13.04.2017 imposing penalty upon the respondent No.4 and he had no statutory power to review his earlier order. 5. Learned counsel appearing on behalf of the respondent No.4 submits that the respondent No.4 was appointed as the Assistant Settlement Officer, Hazaribagh vide notification dated 04.08.2016, but he was never appointed as the Public Information Officer, Settlement Office, Hazaribagh. The respondent No.4 was deputed for disposal of the work relating to the Act, 2005 concerning all Branches of the Head Office, Hazaribagh vide order dated 05.10.2016. The petitioner was appointed as the Public Information Officer, Settlement Office, Hazaribagh vide letter dated 02.02.2016 which was communicated to him vide memo No. 77-II dated 03.02.2016. The respondent No.4 was deputed for disposal of the work relating to the Act, 2005 concerning all Branches of the Head Office, Hazaribagh vide order dated 05.10.2016. The petitioner was appointed as the Public Information Officer, Settlement Office, Hazaribagh vide letter dated 02.02.2016 which was communicated to him vide memo No. 77-II dated 03.02.2016. The respondent No.4 was not assigned the work of the Public Information Officer, Settlement Office, Hazaribagh on 31.08.2016, i.e. the day on which the respondent No.2 had issued the direction for supplying the information to the respondent No.3 and hence the respondent No.2 had rightly reviewed his earlier order and the same needs no interference of this Court. 6. Learned counsel for the respondent No.2 submits that the said respondent has rightly passed the impugned order dated 02.06.2017 as the petitioner being the Public Information Officer, Settlement Office, Hazaribagh had failed to discharge his duty of providing the information to the respondent No.3 even after the specific order passed by the respondent No.2 on 31.08.2016. 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. 8. On bare perusal of Annexure-7 to the writ petition, it appears that the required information was sent to the respondent No.3 vide letter dated 13.07.2015. Despite service of notice to the respondent No.3, he did not choose to appear before this Court to deny the said fact. The petitioner was authorized to act as the Public Information Officer on 02.02.2016 i.e. after supply of the information to the respondent No.3. The show cause notice dated 05.06.2015 was issued by the respondent No.2 to the Public Information Officer, Settlement Office, Hazaribagh observing inter alia that the required information was not supplied to the respondent No.3 in time. 9. The petitioner was authorized to act as the Public Information Officer much after supplying information to the respondent No.3. The show cause notice dated 05.06.2015 was issued by the respondent No.2 to the Public Information Officer, Settlement Office, Hazaribagh observing inter alia that the required information was not supplied to the respondent No.3 in time. 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. 10. The respondent No.2 has passed the impugned order dated 02.06.2017 observing that on 31.08.2016, the petitioner was acting as the concerned Public Information Officer. This Court is of the view that since by that date, the required information was already sent to the applicant (the respondent No.3 herein), there was no justification in holding the officer (i.e. the petitioner herein), who was acting as the Public Information Officer on 31.08.2016, responsible for the alleged inaction. 11. That apart, proviso to Section 20(1) of the Act, 2005 specifically speaks 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 upon him. 12. 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. 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.” 13. 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 Public Information Officer was not bonafide. 14. Section 20 of the Act, 2005 is to be treated as a harsh provision and as such for 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 relevant materials on which the conclusion about such action is drawn. 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 1st 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. 16. In the present case, no one has claimed that the petitioner was acting as the Public Information Officer-cum-Assistant Settlement Officer, Hazaribagh during the period when the application under the Act, 2005 was filed by the respondent No.3 and hence he cannot be held responsible for violation of statutory provision of Section 7(1) of the Act, 2005. Thus, the impugned order dated 02.06.2017 cannot be sustained in law and the same is liable to be quashed. 17. Thus, the impugned order dated 02.06.2017 cannot be sustained in law and the same is liable to be quashed. 17. At this juncture, learned counsel for the respondent No.4 submits that quashing of the order dated 02.06.2017 would amount to revival of the earlier order dated 13.04.2017 passed against the respondent No.4, which is wrong as he was also not discharging the duty of the Public Information Officer on the day the application was made by the respondent No.3 under the Act, 2005. Under the said circumstance, the order dated 13.04.2017 may also be quashed by this Court. 18. In the case of State of Uttar Pradesh & Ors. Vs. Dinesh Singh Chauhan reported in (2016) 9 SCC 749 , the Hon’ble Supreme Court has held as under:- “19. Having considered the rival submissions, the first question that needs to be answered is: Whether the High Court exceeded its jurisdiction in setting aside the Government Order dated 28-2-2014 providing for reservation to in-service candidates, when the writ petition filed by the in-service candidates was limited to equate them with the in-service candidates who had the experience of working in remote or difficult areas. Indeed, the challenge before the High Court was limited. However, the High Court having held that the State Government could not have issued such order in violation of Regulation 9, quashed the same. The High Court had invited the parties to advance arguments on the validity of the said government order before passing the final order. The High Court relied on the decisions of the Supreme Court and opined that it was not permissible, in law, for the State Government to provide reservation for in-service candidates in postgraduate “degree” courses in violation of Regulation 9. Concededly, action taken on the basis of such a void government order would be nothing short of a nullity in law. As a result, the High Court proceeded to issue directions to follow the admission process for postgraduate “degree” courses strictly in conformity with Regulation 9. The High Court thus moulded the relief on the basis of the settled legal position. That approach is unexceptionable, except that it may be necessary to mould the relief further as would be indicated hereinafter.” 19. The Hon’ble Supreme Court in the case of Ramesh Kumar Vs. The High Court thus moulded the relief on the basis of the settled legal position. That approach is unexceptionable, except that it may be necessary to mould the relief further as would be indicated hereinafter.” 19. The Hon’ble Supreme Court in the case of Ramesh Kumar Vs. Kesho Ram reported in 1992 Supp (2) SCC 623, has held that the normal rule is that in any litigation, the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the Court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief. 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. 21. For the reasons aforesaid, the impugned order dated 02.06.2017 as well as the order dated 13.4.2017 passed by the respondent No.2 in Appeal Case No. 2336 of 2014 are hereby quashed and set aside. 22. The present writ petition is, accordingly, allowed.