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2023 DIGILAW 839 (JHR)

Shansah Ali Khan v. State of Jharkhand

2023-07-05

RAJESH SHANKAR

body2023
JUDGMENT : The present writ petition has been filed for quashing order dated 15.07.2013 passed by the respondent no. 3 – the Chief Information Commissioner, Jharkhand State Information Commission, Ranchi in Appeal No. 1669/2012, communicated to the petitioner vide memo no. 5177 dated 22.07.2033, whereby the petitioner has been held guilty of not providing information and a penalty of Rs.25,000/- under Section 20(1) of the Right to Information Act, 2005 (hereinafter referred to as “the Act, 2005”) has been imposed upon him to be realized as the state revenue from his salary in five equal installments by the Deputy Commissioner, Ranchi and Treasury Officer, Ranchi. 2. Learned counsel for the petitioner submits that an application was made by the respondent no. 4 – Shivraj Singh under the Act, 2005 on 22.02.2012 seeking following information from the Public Information Officer-cum-Circle Officer, Town Circle, Ranchi: A- What is the time limitation of delivery of the certified copy? B- What steps have been taken on his application (mutation case)? C- By what time the required certified copy would be delivered to him? 3. The respondent no. 4 claiming that the required information was not provided to him, preferred first appeal on 20.04.2012 before the Appellate Authority-cum-Sub-Divisional Officer, Sadar, Ranchi and thereafter second appeal before the respondent no. 3 on 20.06.2012 alleging inaction on the part of the Public Information Officer-cum-Circle Officer, Town Circle, Ranchi and the first appellate authority. The said second appeal was registered as Appeal No. 1669/2012. Pursuant to filing of the same, a notice was issued to the then Public Information Officer-cum-Circle Officer, Town Circle, Ranchi vide letter no. 10353 dated 22.12.2012 to appear before the Commission on 21.01.2013 at 11:30 a.m. 4. Learned counsel for the petitioner further submits that the petitioner was transferred by the State Government to the post of Circle Officer, Town Circle, Ranchi vide notification dated 27.02.2013, who thereafter assumed charge of the said post on 01.03.2013. Subsequently, he came to know about pendency of Appeal No. 1669/2012. Though the petitioner being the Public Information Officer of the said office pursuant to taking charge of the same on 01.03.2013 tried to provide information to the respondent no. Subsequently, he came to know about pendency of Appeal No. 1669/2012. Though the petitioner being the Public Information Officer of the said office pursuant to taking charge of the same on 01.03.2013 tried to provide information to the respondent no. 4 before the Commission, yet the Commission being dissatisfied with the information provided by the petitioner, imposed a penalty of Rs.25,000/- upon him vide impugned order dated 15.07.2013 exercising power under Section 20(1) of the Act, 2005 to be realized as the state revenue from the salary in five equal monthly installments by the Deputy Commissioner, Ranchi and the Treasury Officer, Ranchi. 5. The main contention of learned counsel for the petitioner is that the petitioner was not posted as Circle Officer, Ranchi on the day the application under the Act, 2005 was filed by the respondent no. 4 and, therefore, the imposition of said penalty by the Commission exercising power under Section 20(1) of the Act, 2005 is illegal and unjustified. In fact, it was the duty of the Circle Officer, Town Circle, Ranchi-cum-Public Information Officer of the said office who was posted at the time the said application was made by the respondent no. 4 to provide the desired information. It is clearly provided in sub-section (1) of Section 7 of the Act, 2005 that 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 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 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 and 9 of the said Act, provided that where the information sought concerns the life or liberty of a person, the same has to be provided within forty eight hours of the receipt of the request. 6. Learned counsel for the petitioner further contends that only because the petitioner was subsequently appointed as Circle Officer, Town Circle, Ranchi and was the Public Information Officer of the said office whereafter he tried to provide information to the respondent no. 6. Learned counsel for the petitioner further contends that only because the petitioner was subsequently appointed as Circle Officer, Town Circle, Ranchi and was the Public Information Officer of the said office whereafter he tried to provide information to the respondent no. 4 during pendency of Appeal No. 1669/2012, cannot make him liable for penalty under Section 20(1) of the Act, 2005, as the Commission while exercising the said power could have imposed penalty only on the officer who was the Public Information Officer on the day the application was filed by the respondent no. 4 and did not provide information within 30 days of receipt of the same. 7. Learned counsel for the petitioner in support of his submission puts reliance on the judgment dated 15.05.2023 rendered by this Court passed in W.P.(C) No. 4377 of 2019 [“Tarni Prasad Mukhia Vs. The Jharkhand State Information Commission, Ranchi & Ors.”], as well as the judgment dated 18.05.2023 rendered in W.P.(C) No. 3618 of 2017 [“Sanjay Kumar Vs. The State of Jharkhand & Ors.”]. 8. Mr. Sanjoy Piprawall, learned counsel for the respondent nos. 2 and 3, while defending the impugned order dated 15.07.2013 passed by the Commission in Appeal No. 1669/2012, submits that since the petitioner provided wrong information to the respondent no. 4, the penalty was imposed on him under Section 20(1) of the Act, 2005. It is also submitted that the said order of the Commission being perfectly justified does not require any interference. 9. Learned counsel for the respondent no. 4 also defends the said order of the Commission and submits that though the respondent no. 4 sought aforesaid three information from the Public Information Commission-cum-Circle Officer, Town Circle, Ranchi way back on 22.02.2012, yet the correct information was not provided to him even before the Commission and, therefore, the penalty imposed upon the petitioner is justified and legal. 10. Heard learned counsel for the parties and perused the materials available on record. 11. The undisputed fact emanating from the writ petition is that the respondent no. 4 made an application under the Act, 2005 on 22.02.2012 seeking the aforesaid information from the Public Information Officer-cum-Circle Officer, Town Circle, Ranchi. Due to non-furnishing of the said information by the Public Information Officer-cum-Circle Officer, Town Circle, Ranchi within the prescribed period of 30 days as provided under Section 7(1) of the Act, 2005, the respondent no. 4 made an application under the Act, 2005 on 22.02.2012 seeking the aforesaid information from the Public Information Officer-cum-Circle Officer, Town Circle, Ranchi. Due to non-furnishing of the said information by the Public Information Officer-cum-Circle Officer, Town Circle, Ranchi within the prescribed period of 30 days as provided under Section 7(1) of the Act, 2005, the respondent no. 4 preferred first appeal on 20.04.2012 before the Appellate Authority-cum-Sub-Divisional Officer, Sadar, Ranchi. Since the information was not provided to the respondent no. 4 at that stage also, he preferred second appeal before the Commission being Appeal No. 1669/2012 on 20.06.2012. 12. The specific case of the petitioner is that pursuant to notification dated 27.02.2013 issued by the State Government, he assumed charge of Circle Officer, Town Circle, Ranchi on 01.03.2013 i.e., much after filing of Appeal No. 1669/2013 and, therefore, the Commission could not have imposed penalty upon him exercising power under Section 20(1) of the Act, 2005. 13. This Court in the case of “Tarni Prasad Mukhia” (supra) has already considered the said aspect. The relevant paragraphs of the judgment dated 15.05.2023 rendered in the said case are reproduced as under: “3. The main contention of learned counsel for the petitioner while assailing the impugned order dated 07.06.2019 passed by the Information Commissioner is that a penalty of Rs.25,000/- has been imposed against the petitioner under Section 20(1) of the Act, 2005 and a direction has been given to his controlling authority to initiate departmental proceeding against him under Section 20(2) of the Act, 2005 without appreciating the fact that the petitioner was actually not involved in providing the information to the respondent no. 3 during the relevant period. In fact, he joined the said post on much later date that too after about two years of filing of the appeal before the Commission. 9. 3 during the relevant period. In fact, he joined the said post on much later date that too after about two years of filing of the appeal before the Commission. 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 subsection (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 5 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. 12. 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. 12. On bare perusal of the impugned order dated 07.06.2019, it appears that though the petitioner was called upon to show cause under Sections 20(1) & 20(2) of the Act, 2005, however, he did not file any reply to the same, rather requested for time on the ground that the dealing assistant was on leave and on the said date, he submitted before the Commission that the required information was being searched. The Commission did not accept the said submission of the petitioner since in course of hearing on 20.06.2016, the Public Information Officer had claimed that the information was already sent to the respondent No.3. The Commission held that the petitioner was knowingly not providing the information for which the second appeal was filed in the year 2015. 13. The moot question arises for consideration in this case is as to whether in the given situation, the Information Commissioner could have imposed a penalty of Rs.25,000/- upon the petitioner and could have directed his controlling authority to initiate departmental proceeding against him within the bounds of sub-section (1) and sub-section (2) of Section 20 of the Act, 2005. 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. 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 6 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.” 14. Similar view has been taken by this Court while rendering judgment dated 18.05.2023 in the case of “Sanjay Kumar” (supra), paragraph-20 of which reads as under: “20. Similar view has been taken by this Court while rendering judgment dated 18.05.2023 in the case of “Sanjay Kumar” (supra), paragraph-20 of which reads as under: “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 13.04.2017, though not challenged in the present writ petition, is also liable to be quashed.” 15. In the present case, the Commission vide impugned order dated 15.07.2013 passed in Appeal No. 1669/2012 has misdirected itself by not appreciating the aforesaid aspect and imposing penalty of Rs.25,000/- upon the petitioner merely on the ground that at the stage of pendency of the said appeal, the information provided by the petitioner was not found to be correct. Admittedly, the petitioner was not the Public Information Officer on the day the application of the respondent no. 4 under the Act, 2005 was received in the office of the Circle Officer, Town Circle, Ranchi i.e., 22.02.2012. In fact, the petitioner assumed charge of the said office on a much later date i.e., on 01.03.2013 and, therefore, the Commission has committed error in imposing penalty upon him exercising power under Section 20(1) of the Act, 2005, as none of the conditions mentioned in the said provision is attracted in such a situation. 16. Under the said circumstance, the impugned order dated 15.07.2013 passed by the Commission in Appeal No. 1669/2012 cannot be sustained in law and, therefore, the same is quashed. 17. The writ petition is accordingly allowed.