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2023 DIGILAW 994 (JHR)

Shivendra Kumar v. State of Jharkhand

2023-08-07

RAJESH SHANKAR

body2023
JUDGMENT : The present writ petition has been filed for quashing and setting the order dated 01.11.2018 as contained in memo No. 15933 dated 13.12.2018 (Annexure-17 to the writ petition) passed by the Jharkhand State Information Commission in Appeal Case No. 913 of 2017, whereby in exercise of the power conferred under section 20(1) of the Right to Information Act, 2005 (hereinafter referred to as “the Act, 2005”), a penalty of Rs.25,000/- has been imposed upon the petitioner with a further direction to recover the said penalty from the salary of the petitioner from the month of January, 2019 in five equal monthly installments. 2. Learned counsel for the petitioner submits that while the petitioner was posted as District Superintendent of Education, Ranchi, the respondent no. 4 filed an application under the Right to Information Act, 2005 (hereinafter referred to as “the Act, 2005”) on 21.12.2016 seeking nine (09) points information which was immediately forwarded to the Block Education Extension Officer, Bundu vide memo No. 1191 dated 24.12.2016 since the information sought was related to his office. 3. It is further submitted that when the information was not provided to the respondent no. 4, he preferred first appeal on 09.01.2017. Thereafter, the petitioner once again vide letter no. 328 dated 15.03.2017 sent reminder to the Block Education Extension Officer, Bundu to provide required information to the respondent no. 4, however, the same was not provided to him by the Block Education Extension Officer, Bundu. The respondent no. 4 thereafter preferred second appeal before the Jharkhand State Information Commission which was registered as Appeal No. 913 of 2017 and a notice was issued to the petitioner to appear before it on 20.12.2017 at 10:30 a.m. along with the entire records of hearing made by the first appellate authority on different dates and to submit explanation in writing. However, in the meantime, the required information on six points out of the nine points was supplied to the respondent no. 4 by the Block Education Extension Officer, Bundu vide letter no. 158 dated 11.12.2017 and the remaining three points information was supplied to the respondent no. 4 by the Additional District Programme Officer, Jharkhand Education Project, Ranchi vide letter no. 1479 dated 14.12.2017. The petitioner vide letter no. 1488 dated 14.12.2017 also informed the Jharkhand State Information Commission that the required nine points information was supplied to the respondent no. 158 dated 11.12.2017 and the remaining three points information was supplied to the respondent no. 4 by the Additional District Programme Officer, Jharkhand Education Project, Ranchi vide letter no. 1479 dated 14.12.2017. The petitioner vide letter no. 1488 dated 14.12.2017 also informed the Jharkhand State Information Commission that the required nine points information was supplied to the respondent no. 4 vide aforesaid letters. 4. It is also submitted that the respondent no. 4 raised objection against the information provided to him and the said objection was also responded by the Block Education Extension Officer, Bundu, a copy of which was forwarded to the Jharkhand State Information Commission vide memo no. 305 dated 28.03.2018. Subsequently, vide memo No. 451 dated 10.05.2018, an attempt to meet the objection was again made, however, the respondent no. 4 continued to insist on the objections and the matter was adjourned for 25.10.2018 and 31.10.2018. Finally, the impugned order dated 01.11.2018 was passed imposing a penalty of Rs.25,000/- upon the petitioner which was directed to be deducted from his salary in five equal monthly installments starting from the month of January, 2019. 5. Learned counsel for the petitioner contends that the Commission has committed serious error in imposing penalty upon the petitioner as he had taken prompt steps so as to ensure that the respondent no. 4 gets the information in time and had accordingly forwarded the RTI application of the respondent no. 4 to the Block Education Extension Officer, Bundu keeping in view that the informations sought pertained to the said office. 6. Learned counsel for the respondent-Jharkhand State Information Commission submits that the petitioner deliberately did not provide the required information to the respondent no. 4 within the timeframe provided under Section 7(1) of the Act, 2005 and as such, the Commission rightly imposed the penalty upon the petitioner in exercise of the power conferred under Section 20(1) of the Act, 2005. 7. It is also submitted that the petitioner, instead of disposing of the application of the petitioner himself, had transferred the same to his sub-ordinate officer and thus, he had acted in contravention of the provisions of the Act, 2005. 8. Heard learned counsel for the parties and perused the materials available on record. 9. The thrust of argument of learned counsel for the petitioner is that the petitioner immediately after receipt of the application from the respondent no. 8. Heard learned counsel for the parties and perused the materials available on record. 9. The thrust of argument of learned counsel for the petitioner is that the petitioner immediately after receipt of the application from the respondent no. 4, had forwarded his application to the Block Education Extension Officer, Bundu to provide information to the respondent no. 4 and as such, if any default was committed in not giving information to the respondent no. 4, the Block Education Extension Officer, Bundu can only be held responsible for the same. Hence, the Commission has committed wrong in imposing penalty upon of the petitioner under Section 20(1) of the Act, 2005. 10. I have perused the impugned order dated 01.11.2018 passed by the Jharkhand State Information Commission wherein it has been observed that section 6(3) of the Act, 2005 provides for transfer of application by a public authority to another public authority within five days from the date of receipt of the application only in cases where the information is related to another public authority, however, the petitioner had transferred the application of the respondent no. 4 to his sub-ordinate officer with a direction to provide required information to the respondent no. 4 from his own level. It has further been observed that the petitioner was required to get the information from his sub-ordinate officer and to provide the same to the respondent no. 4 from his level itself. It has also been observed that out of the required informations, three were related to the office of the petitioner himself which were provided to the respondent no. 4 after one year of filing of the application, which is serious violation of Section 7(1) of the Act, 2005. 11. To appreciate the contention of learned counsel for the parties, it would be appropriate to refer the relevant provisions of the Act, 2005. “2. --------- (h) "public authority" means any authority or body or institution of self-government established or constituted— (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any— (i) body owned, controlled or substantially financed; (ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government; 5. Designation of Public Information Officers.—(1) Every public authority shall, within one hundred days of the enactment of this Act, designate as many officers as the Central Public Information Officers or State Public Information Officers, as the case may be, in all administrative units or offices under it as may be necessary to provide information to persons requesting for the information under this Act. (2) Without prejudice to the provisions of sub-section (1), every public authority shall designate an officer, within one hundred days of the enactment of this Act, at each sub-divisional level or other sub-district level as a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, to receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be. Provided that where an application for information or appeal is given to a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, a period of five days shall be added in computing the period for response specified under sub-section (1) of section 7. (3) Every Central Public Information Officer or State Public Information Officer, as the case may be, shall deal with requests from persons seeking information and render reasonable assistance to the persons seeking such information. (4) The Central Public Information Officer or State Public Information Officer, as the case may be, may seek the assistance of any other officer as he or she considers it necessary for the proper discharge of his or her duties. (5) Any officer, whose assistance has been sought under sub-section (4), shall render all assistance to the Central Public Information Officer or State Public Information Officer, as the case may be, seeking his or her assistance and for the purposes of any contravention of the provisions of this Act, such other officer shall be treated as a Central Public Information Officer or State Public Information Officer, as the case may be. 6. 6. Request for obtaining information.— (1) A person, who desires to obtain any information under this 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— (a) the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority; (b) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, specifying the particulars of the information sought by him or her: Provided that where such request cannot be made in writing, the Central Public Information Officer or State Public Information Officer, as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing. (2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him. (3) Where an application is made to a public authority requesting for an information— (i) which is held by another public authority; or (ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer: Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application. 7. 7. Disposal of request.—(1) 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 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 and 9: Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request. ----------” 12. Public authority under the Act, 2005 has been defined as any authority or body or institution of self-government established or constituted, by or under the Constitution; by any other law made by Parliament; by any other law made by State Legislature; by notification issued or order made by the appropriate Government and also includes anybody owned, controlled or substantially financed and non-government organisation substantially financed, directly or indirectly by funds provided by the appropriate government. 13. Sub-section (1) of Section 5 of the Act, 2005 casts a duty upon every public authority to designate as many Central Public Information Officers (CPIO) or State Public Information Officers (SPIO), as the case may be in all administrative units or offices under it as per necessity to provide information to persons requesting for the information under the Act, 2005. Sub-section (3) of Section 5 speaks that every CPIO or SPIO, as the case may be, shall deal with the requests from persons seeking information and shall render reasonable assistance to him. Sub-section (4) of Section 5 provides that the CPIO or SPIO, as the case may be, may seek assistance from any other officer as he or she considers it necessary for the proper discharge of his or her duties. Further, Sub-section (5) of Section 5 casts duty upon the officer from whom assistance has been sought by the CPIO or SPIO, as the case may be, to render all assistance to such CPIO or SPIO, as the case may be, failing which he/she shall be treated as CPIO or SPIO, as the case may be, for the purposes of any contravention of the provisions of the Act, 2005. 14. 14. Section 6(1) provides for filing of application for seeking information before the CPIO or SPIO, as the case may be, of the concerned public authority and as per Section 6(3), if the information sought is held by another public authority or the subject matter of which is closely connected with the functions of another public authority, the said application has to be transferred to another public authority as soon as possible but in no case later than five days from the date of receipt of the application and the information about the same has to be given to the applicant. 15. Sub-section (1) of Section 7 unambiguously provides that the CPIO or SPIO, as the case may be, shall either provide the information or reject the request for the reasons mentioned under Sections 8 and 9 of the Act, 2005 within the time limit of thirty days from the date of receipt of the request. 16. It is thus evident that when an application is filed seeking information before the designated PIO and the same is held by or connected with the same public authority, the said PIO is duty bound to deal with the application seeking information and to dispose of the same within the timeframe provided under section 7(1) of the Act, 2005. The designated PIO while discharging his/her function may take assistance of any other officer and if that officer fails to provide proper assistance to the designated PIO, then the said officer shall be treated as deemed PIO for the purpose of contravention of the provisions of the Act, 2005. However, if the information sought is related to the same public authority, application cannot be transferred by the designated PIO to any other officer or to the deemed PIO, rather he/she has the statutory obligation to dispose of the application under Section 7(1) of the Act, 2005 himself/herself and while doing so he/she may take assistance of such other officer. The transfer of application of the applicant is to be made only if the information relates to or closely connected with another public authority. 17. In the case in hand, admittedly, the petitioner was the designated PIO and the required information was related to his office as also the sub-ordinate offices within the same public authority. However, the petitioner after receiving the application of the respondent no. 17. In the case in hand, admittedly, the petitioner was the designated PIO and the required information was related to his office as also the sub-ordinate offices within the same public authority. However, the petitioner after receiving the application of the respondent no. 4, transferred the same to the Block Education Extension Officer, Bundu who was sub-ordinate to him directing him to provide the required information to the respondent no. 4 and tried to escape his statutory duty under Section 7(1) of the Act, 2005. 18. I am of the view that if the argument made on behalf of the petitioner to the extent that he is not liable for the delay caused in providing the information to the respondent no. 4, as he had immediately transferred the application of the petitioner to the Block Extension Officer, Bundu is accepted, then the entire scheme of the Act will get vitiated. It was the duty of the petitioner being the designated PIO to dispose of the application of the respondent no. 4 within the timeframe provided under Section 7(1) of the Act, 2005 and while doing so, he could have taken the assistance of the other officer(s) sub-ordinate to him. The prime responsibility of furnishing the information to the respondent no. 4 was upon the petitioner being the designated PIO which he failed to discharge by transferring the said application to the Block Education Extension Officer, Bundu. 19. That apart, the Commission in the impugned order has also observed that out of the nine informations sought by the respondent no. 4, three were related to the office of the petitioner, however, the same were provided to the respondent no. 4 after one year of filing of the application. 20. In view of the aforesaid discussion, I do not find any infirmity in the impugned order dated 01.11.2018 as contained in memo no. 15933 dated 13.12.2018 passed by the Jharkhand State Information Commission in Appeal Case No. 913 dated 2017. 21. The writ petition is accordingly dismissed.