Jharkhand High Court
Ashok Kumar Chopra vs The State Of Jharkhand on 24 September, 2019
Equivalent citations: AIRONLINE 2019 JHA 978, 2019 (4) AJR 594 (2019) 203 ALLINDCAS 782, (2019) 203 ALLINDCAS 782, 2019 (4) AJR 594, (2019) 203 ALLINDCAS 782 2019 (4) AJR 594
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 165 of 2016
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Ashok Kumar Chopra, son of Puran Chand Chopra, presently posted as Block Development Officer, Barkagaon, P.O. and P.s. - Barkagaon, District
- Hazaribagh (Jharkhand) ... ... Petitioner Versus
1. The State of Jharkhand.
2. Hiro Mahto, son of late Chando Mahto, resident of Village - Balodar, P.O. Ambajit, P.S. Barkagaon, District - Hazaribagh
3. Secretary, State Information Commission, Abhiyantran Bhawan, Dhurwa, Ranchi, P.O. - P.S. Dhurwa, Ranchi ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Sanjay Kumar Pandey, Advocate For the Respondent No.1 : Mr. Prashant Pallav, G.A.-IV For the Respondent No.2 : Mr. Jageshwar Mahto, Advocate For the Respondent No.3 : Mr. Sanjay Piprawall, Advocate
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th Order No. 07: Dated 24 September, 2019 This writ petition is under Article 226 of the Constitution of India whereby and whereunder the order dated 30.09.2015 passed in Appeal Case No. 1849 of 2014 by Information Commissioner has been assailed by which the petitioner has been directed to make payment of Rs.20,000/- by way of compensation in exercise of power conferred under Section 19(8)(b) of the Right to Information Act, 2005 (hereinafter referred to as the Act, 2005) and Rs.25,000/- by way of penalty in pursuance to the power conferred under Section 20(1) of the Act, 2005.
2. The aforesaid order has been assailed inter alia on the following grounds:-
(i) The authority while passing an order under Section 19(8)(b) of the Act, 2005 by directing the petitioner to make compensation of Rs.20,000/- has committed gross illegality in holding the petitioner liable to make payment of compensation even though the petitioner is not coming under the fold of definition "Public Authority" as -2- referred under Section 19(8)(b) of the Act, 2005 and as per the definition of "Public Authority" provided under Section 2(h) of the Act, 2005.
(ii) The order of penalty has been directed to be paid in exercise of power conferred under Section 20(1) of the Act, 2005 but prior to passing of such order, the opportunity of hearing has not been provided as required to be provided under the proviso to Sub Section (1) of Section 20 of the Act, 2005.
(iii) The required information has been sent by the Public Information Officer but as would appear from Annexure-2 that he has refused to accept the same but while passing such order the said aspect of the matter has not been appreciated.
3. Mr. Sanjay Piprawall, learned counsel appearing for the Information Commission as also Mr. Prashant Pallav, learned G.A.-IV, representing the State of Jharkhand have defended the order passed by the authority by submitting that by not furnishing the documents the very object and spirit of the Act, 2005 has been over reached by inaction on the part of the petitioner since at the relevant time he was holding the charge of the Public Information Officer and therefore, the order may not be interfered with.
4. It is undisputed fact that the legal issues have not been pleaded by the writ petitioner in the writ petition but learned counsel appearing for the petitioner has orally argued by agitating the legal position and as such this Court, considering the fact that the legal issues, if agitated and even if not pleaded, is required to be answered, therefore, is proceeding to answer these legal issues.
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5. This Court after having heard the learned counsel for the parties and after going across their rival submissions deems it fit and proper to first deal with the object and scope of the Right to Information Act, 2005 which has been enacted to provide for setting up the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
6. The reference of "Information" as also the "Public Authority" is required to be referred herein since these definitions are necessary for answering the issues which have been agitated by the petitioner.
The information has been defined under the provisions of Section 2(f) of the Act, 2005 which reads hereunder as :-
"2. ... ... ...
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;"
The "Public Authority" has been defined under Section 2(h) which reads hereunder as :-
"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---4-
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;"
The "Public Information Officer" has been defined under Section 2(m) which reads hereunder as :-
"2. ... ...
(m) "State Public Information Officer" means the State Public Information Officer designated under sub-section (1) and includes a State Assistant Public Information Officer designated as such under sub-section (2) of section 5;"
7. It is evident from the aforesaid definitions that the "information" means any material in any form, including records, documents etc. in any form and relating to any private body which can be accessed by a public authority under any other law for the time being in force.
The "Public Authority" has been defined which 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 - body owned, controlled or substantially financed, non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.
The "State Public Information" has been defined to be a designated officer under sub-section (1) and includes a State Assistant Public Information Officer designated as such under sub-section (2) of section 5.
Section 4 provides the obligation of Public Authority in maintaining all records while Section 5 casts duty upon the Public Authority to designate the Public Information Officer in the Central office or in the State office, as the -5- case may be. Section 6 contains the provisions for request for obtaining information and Section 7 provides disposal of the aforesaid request.
Section 19 provides provision for appeal. The first appeal is to be filed under Sub Section (1) and second appeal under Sub Section (3).
Section 19(8)(b) casts duty upon the Public Authority to compensate the complainant for any loss or other detriment suffered, impose any of the penalties provided under this Act and reject the application.
While Section 20(1) provides power upon the Commission to impose penalties both in terms of money as well as with a recommendation to initiate departmental proceeding but prior to that a reasonable opportunity of being heard is required to be provided, for ready reference Section 19(8) and Section 20 are being referred hereinbelow which reads hereunder as :-
"19. ... ... ...
(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to--
(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including--
(i) by providing access to information, if so requested, in a particular form;
(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be;
(iii) by publishing certain information or categories of information;
(iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records;
(v) by enhancing the provision of training on the right to information for its officials;
(vi) by providing it with an annual report in compliance with clause (b) of sub section (1) of section 4;
(b) require the public authority to compensate the complainant for any loss or other detriment suffered;
(c) impose any of the penalties provided under this Act;
(d) reject the application."
20. (1) Where the Central Information Commission or the 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 sub-section (1) of section 7 or malafidely denied the request for -6- 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 the 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 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 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."
8. The first issue has been raised about the power of the Information Commission to direct the Public Information Officer to make payment of compensation as per the provision conferred under Section 19(8)(b) of the Act, 2005.
9. As referred hereinabove, Section 19(8)(b) requires the Public Authority to compensate the complainant for any loss or other detriment suffered.
The word "Public Authority" is to be examined and the exact meaning of the same by making difference in between "Public Authority" and the "Public Information Officer" in order to answer the issue as because if the Public Authority and the Public Information Officer are treated to be the -7- same as per the definition provided under the Act, 2005, then the issue about making the Public Information Officer liable for disbursement of compensation in favour of the information seeker will be said to be within jurisdiction but the consequence would be otherwise if the Public Authority will be different to that the Public Information Officer.
10. It is evident from the definition of Public Authority as provided under Section 2(h) which suggests that the Public Authority means any authority or body or institution or self-government established or constituted by or under the Constitution, by any other law made either by the Parliament or by the State legislature or by any notification issued in this regard by the appropriate Government and includes, any - body owned, controlled or substantially financed.
Further it would be evident from the provision of Section 4 which casts obligation upon the Public Authorities to maintain all its records duly catalogued.
Further Section 5 provides provision for delegation of power by making designation to appoint Public Information Officer.
If the definition as contained under Section 2(h), 2(m), Section 4 and Section 5 would be read together, it would be evident that the Public Authority will be said to be the authority if established or constituted by the enforcement of law or under the Constitution meaning thereby, the Public Authority if found to be State within the meaning of Article 12 of the Constitution of India, the same would be said to be Public Authority.
On the other hand, the Public Information Officer means the officer designated by the Public Authority to act as the Public Information Officer. -8-
11. Therefore, the Act, 2005 provides specific difference in between Public Authority and Public Information Officer to the effect that the Public Information Officer is the designated Officer to be designated by the Public Authority who is the custodian of the record and the designated Public Information Officer is required to provide information deriving from the custody of the Public Authority and that is the reason the obligation has been casted upon the Public Authority as per the provision of Section 4 of the Act, 2005 to maintain all records.
12. It further suggests that the Public Information Officer, if approached by information seeker, he is required to obtain the information from the custody of the Public Authority and thereafter it would be supplied, if permissible, to the concerned information seeker.
13. Therefore, the object of the Act, 2005 is casting obligation upon the Public Authority who is the authority constituted either under the Constitution or any enforcement of law either by the Parliament or by the State legislature or any body owned or financially aided by the State Government.
14. Therefore, there is clear distinction in between the Public Authority and the Public Information Officer. Section 19(8)(b) and Section 20 provides the consequence in case of non-supply or inadequate supply of information as has been sought by the Information Commission, therefore, the Act provides the provision of compensation as also penalty.
15. The provision of compensation has been provided under the provision of Section 19(8)(b) by which a Public Authority is required to compensate the complainant for any loss or other detriment suffered. -9-
Since this Court has answered the issue about distinction in between Public Authority and the Public Information Officer, therefore, the part of the order of liability of compensation is to be inflicted upon the Public Authority to compensate the complainant.
16. The object of the Act to compensate the complainant by the Public Authority is for the reason that it is the Public Authority who is supposed to keep the document in safe custody and if the document is not found available, the compensation is required to be paid by the Public Authority.
Simultaneously, the State Public Information Officer who is the designated officer by the Public Authority, has also been casted some responsibility/accountability to provide the information sought for by the information seeker and if there would be any negligence in discharge of the aforesaid duty, the provision of penalty as also recommendation to initiated departmental proceeding has been provided under the provision of Section 20(2).
The provision of Section 20(1) provides that if the Information Commission will come to a conclusion that the information seeker has 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 Public Information Officer shall be given a reasonable opportunity of being heard before any penalty is imposed on him. -10-
The provision of penalty under Section 20 has been inserted by way of deterrent provision so that in case of violation of the purpose and object of the Act, the penalty is to be imposed upon the concerned Public Information Officer either of the Central or the State Government, as the case may be, but prior to that an opportunity of hearing is required to be provided.
17. In the light of the aforesaid legal position and after going across the impugned order it is evident therefrom that the Information Commissioner has exercised the power conferred under Section 19(8)(b) as also Section 21(1) and (2) and has passed the order first for compensating the information seeker by making payment of Rs.20,000/- in his favour and secondly, imposing penalty of Rs.25,000/- under Section 20(1) and recommendation to initiate department proceeding under Section 20(2) of the Act, 2005.
18. As has been answered hereinabove, the power conferred under Section 19(8)(b) of the Act, 2005 pertaining to a direction to compensate the information seeker by the Public Information Officer as has been directed in the impugned order is not sustainable in the eye of law for the reason as discussed hereinabove that the Public Information Officer being not the Public Authority, cannot be inflicted with the liability to compensate the information seeker, rather, it is upon the Public Authority.
19. The second part of the order which pertains to the order of penalty of Rs.25,000/- under the power conferred under Section 20(1) of the Act, 2005, the same is also not sustainable in the eye of law as because before exercising the aforesaid power and coming to the conclusion about imposition of penalty upon the concerned Public Information Officer, the provision as contained under proviso to Sub Section (1) of Section 20 pertaining to providing reasonable opportunity of being heard is mandatorily to be -11- provided to the concerned Public Information Officer and as would appear from the impugned order that no opportunity of hearing has been provide to the petitioner, who is the Public Information Officer, before inflicting upon him the penalty of making payment of Rs.25,000/-.
In view thereof, the direction pertaining to imposition of penalty of Rs.25,000/- upon the petitioner is held to be not sustainable on the want of violation of principle of natural justice as provided under the proviso to Sub Section (1) of Section 20.
20. In consequence of the aforesaid discussion made, the order pertaining to imposition of order of compensation in exercise of power conferred under Section 19(8)(b) as also the imposition of penalty under Section 20(1) of the Act, 2005 are hereby held to be not sustainable and accordingly quashed.
In the result, the matter is remitted back to the State Information Commission for passing order afresh.
21. So far as the third part of order pertaining to recommendation to initiate departmental proceeding under Sub Section (2) of Section 20 is concerned, this Court is not passing any order on the legality and propriety of the said part of the order leaving it open for its re-examination on the ground of the plea taken by the petitioner that such information has been furnished but the information seeker has refused to accept it.
The aforesaid submission has not been disputed by the learned counsel appearing for the Respondent No.2 since no rebuttal reply has been filed on his behalf.
Since the factual dispute has been agitated, therefore, it would be proper that this issue is also decided by the Commission. Therefore, it would -12- be just and proper to direct the State Information Commission to also pass a fresh order on this issue.
22. This writ petition is accordingly disposed of.
(Sujit Narayan Prasad, J.) Birendra/