Jharkhand High Court
Jai Prakash Narayan vs The State Of Jharkhand on 2 September, 2022
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 3726 of 2013
Jai Prakash Narayan, son of Ananta Lal Gope, resident of Hussainabad, P.O.
& P.S-Japla, District Palamau ....... ..... Petitioner
Versus
1.The State of Jharkhand
2.The State Information Commission, through its Secretary having its office
at Engineers Hostel-2, H.E.C. area, P.O. & P.S. Dhurwa, District Ranchi.
3.Ram Pravesh Singh S/o not known to the petitioner, resident of village-
Mokhar Kalla, P.O. Karimandih, P.S. Haidarnagar, Dist-Palamau.
4.Deputy Commissioner, Palamau, P.O. + P.S+ Dist-Palamau.
5. District Treasury Officer, Palamau, P.O. + P.S+ Dist-Palamau.
..... ..... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Mohan Kumar Dubey, Advocate For the State : Mr. Subham Mishra, A.C. to S.C (Mines) II For the Resp. No.2 : Mr. Sanjoy Piprawal, Advocate
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nd 11/Dated: 02 September, 2022 This writ petition is under Article 226 of the Constitution of India, wherein, the order 12.09.2012 passed in Appeal Case no.1802 of 2011 by the Chief Information Commissioner is under challenge, in 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, 2005 (hereinafter referred to as 'the Act, 2005).
2. The brief facts of the case, which led the writ petitioner to file this writ petition, as per the pleading made in the writ petition, reads hereunder as:
The writ petitioner, who is a member of Jharkhand Administrative Service and while working as Circle Officer-cum-Block Development Officer, Hussainabad, Palamau, as also the Public Information Officer and the Nodal Officer under the provision of the Act, 2005, to supply information, which is permissible to be supplied under the provision of Act, 2005.2
It is the case of the writ petitioner that while he was working as such, a notice has been received from the office of the State Information Commission dated 14.11.2011, as contained in Memo no.12899. Vide aforesaid notice, the writ petitioner has been summoned to appear in the proceeding before the State Information Commission as on 01.02.2012 in order to put-forth his defence along with the relevant documents, failing which, the ex-parte order will be passed.
It is the case of the writ petitioner that the information as was sought for, has been supplied to the information seeker vide Memo no.291 dated 08.06.2012 and he had presented himself physically before the Commission on 12.06.2012, but, on that date there was no sitting of the Commission and, as such, the matter was adjourned for next date i.e. on 12.09.2012.
The further grievance of the writ petitioner is that even without providing any reasonable opportunity, the impugned decision of imposing penalty to the tune of Rs.25,000/- as provided under Section 20 (1) of the Act, 2005 has been inflicted, without complying the proviso contained therein, which provides that before imposing penalty a reasonable opportunity is mandatorily to be provided to the concerned Public information Officer.
It is the further case of the writ petitioner that the show cause notice which was issued on 03.04.2012 as has been referred in the impugned order dated 12.09.2012, which cannot be construed to be a show cause seeking explanation said to be in terms of proviso to Section 20 (1) of the Act, 2005, since, it would be evident from the content of the show cause notice dated 03.04.2012 wherein it has been stipulated as to why the economic penalty be not imposed as provided under Section 20 (1) and the same also contains a direction for supply of the information as was sought for by the information 3 seeker to be supplied within a period of a week from the notice dated 03.04.2012.
3. Mr. Mohan Kumar Dubey, learned counsel appearing for the petitioner has submitted that the reasonable opportunity, in terms of the proviso to Section 20 (1) of the Act, 2005 is only construed to be a reasonable opportunity if a separate show cause would have been issued asking the writ petitioner as to why the economic penalty would not be imposed. Since, herein, the notice dated 03.04.2012 stipulates about the two directions, first, asking the explanation as to why the penalty be not imposed as provided under Section 20 (1) of the Act, 2005 and secondly, to supply the information within one week from 03.04.2012. Therefore, the same is to be construed a direction for supply of document within one week and nothing else.
Learned counsel for the petitioner in the backdrop of aforesaid contention has submitted that the impugned order requires interference by issuing writ of certiorari, since, the same is not in consonance with the provision of Section 20 (1) of the Act, 2005.
4. Per contra, Mr. Sanjoy Piprawal, learned counsel appearing for the State Information Commission has defended the order impugned. It has been contended that there is no infirmity in the impugned order, since, reasonable opportunity as per the requirement of law, has been provided by issuing notice to the writ petitioner, as would appear from the content of the show cause dated 03.04.2012, as has been referred in the impugned order, wherein, it has specifically been communicated to the writ petitioner, which is in two parts i.e., first part pertains to seeking explanation for failure on the part of discharge of official duty as provided under the Act, 2005, in not furnishing due information to the information seeker and, therefore, an 4 explanation has been sought for to the effect that as to why the penalty be not imposed due to failure in discharging the statutory duty of supplying the information. The second part of the show cause notice is that the Commission has granted a week's time to supply information to the information seeker in order to maintain the mandate of the Act, 2005. Therefore, it has been contended that it is incorrect on the part of the learned counsel for the petitioner to take the ground that the notice dated 03.04.2012 cannot be construed to be a notice and reasonable opportunity has not been provided before imposing the penalty of Rs.25,000/- as provided under Section 20 (1) of the Act, 2005.
Mr. Sanjoy Piprawal, on the basis of the aforesaid background, has submitted that since the writ petitioner has failed to explain by submitting his explanation and, as such, now he cannot take the plea that the reasonable opportunity has not been provided and therefore, the order which has been sought to be questioned, on the ground of non-compliance of the proviso to Section 20 (1) of the Act, 2005, is not available and hence the same may not be interfered with.
5. This Court has heard the learned counsel for the parties, perused the documents available on record as also the finding recorded in the impugned order.
6. This Court, before entering into the legality and propriety of the impugned order, deems it fit and proper to refer certain provisions of the Act, 2005 which has got bearing in the just and proper decision of the lis. The relevant is the provision of Section 7, reads hereunder as:
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 5 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.
(2) If the Central Public Information Officer or State Public Information Officer, as the case may be, fails to give decision on the request for information within the period specified under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall be deemed to have refused the request. (3) Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the Central Public Information Officer or State Public Information Officer, as the case may be, shall send an intimation to the person making the request, giving-
(a) the details of further fees representing the cost of providing the information as determined by him, together with the calculations made to arrive at the amount in accordance with fee prescribed under sub-
section (1), requesting him to deposit that fees, and the period intervening between the despatch of the said intimation and payment of fees shall be excluded for the purpose of calculating the period of thirty days referred to in that sub-section;
(b) information concerning his or her right with respect to review the decision as to the amount of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other forms.
(4) Where access to the record or a part thereof is required to be provided under this Act and the person to whom access is to be provided is sensorily disabled, the Central Public Information Officer or State Public Information Officer, as the case may be, shall provide assistance to enable access to the information, including providing such assistance as may be appropriate for the inspection.
(5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub-section (6), pay such fee as may be prescribed:
Provided that the fee prescribed under sub-section (1) of section 6 and sub-sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government. (6) Notwithstanding anything contained in sub-section (5), the person making request for the information shall be provided the information free of charge where a public authority fails to comply with the time limits specified in sub-section (1).
(7) Before taking any decision under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the 6 case may be, shall take into consideration the representation made by a third party under section 11.
(8) Where a request has been rejected under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall communicate to the person making the request,--
(i) the reasons for such rejection;
(ii) the period within which an appeal against such rejection may be preferred; and
(iii) the particulars of the appellate authority. (9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question."
It is evident from the provision of Section 7 that in order to achieve the object and intent of the Act, which is to provide a means to accept the document if any application will be filed by any information seeker, will be supplied within the stipulated period of 30 days, subject to exception as provided under Section 8 of the Act, 2005.
It has been provided under Section 19 that in case the information has not been supplied, the information seeker will have an opportunity to file appeal before the next higher authority, which will be treated to be by way of first appeal to be filed within a period of 30 days from the expiry of the period of 30 days from the date of filing of application seeking such information.
It further provides under Section 19 itself that if the immediate controlling authority has not provided the information within the period of 30 days, the information seeker will have statutory right to prefer appeal before the State Information Commission to be filed within 30 days from the expiry of the period of date of filing such application before the immediate controlling authority i.e., not to the first appellate authority. 7
The State Information Commission has been conferred with power to summon the Public Information Officer and ensure supply of the information which has been sought by the information seeker so that the object and intent of the Act be maintained.
But, the State Information Commission has also been conferred with the power under Section 20 (1) (2) and under Section 19 (8) thereof to impose penalty upon the concerned Public Information Officer not exceeding Rs.25,000/- as also to make a recommendation for initiating departmental proceeding. But, before imposing penalty under Section 20 (1) of the Act, 2005 there is proviso to provide reasonable opportunity.
Section 19 (8) (b) which confers power to the State Information Commission to impose compensation but not to the erring official i.e., the Public Information Officer, rather, the compensation is to be paid by the public authority who is the appointing authority of the Nodal Officer i.e. Public Information Officer.
It requires to refer herein that providing of reasonable opportunity is under Section 20 (1), that is for the reason that the State Information Commission has been conferred with the power to impose penalty by passing an order by the Commission itself and therefore, it has been mandated that while imposing such penalty an opportunity of hearing is to be provided and that is the reason the proviso has been made under Section 20 (1) of the Act, 2005.
The provision as contained under Section 20 (2) confers power upon the State Information Commission to make recommendation to the parent department to initiate a departmental proceeding, but the said provision does not contain any provision to the effect to provide a reasonable opportunity as has been provided under the proviso to Section 20 (1), reason being that 8 when recommendation to initiate a departmental proceeding will be there, the same may be accepted may not be accepted by the disciplinary authority depending upon the situation, since, any recommendation as per the law does not bind a party and there may be difference of opinion between the decision making authorities. Further for the reason that in case if a departmental proceeding is initiated after acceptance of the recommendation of the State Information Commission, the opportunity is to be provided under the applicable conduct rule.
7. The position of law is well settled that once the opportunity of hearing has been provided to the concerned, but not chosen to avail, such party will be precluded from raising the issue of violation of principles of natural justice, as has been held by the Hon'ble Apex Court in the case of N. K Prasada Vs. Govt. of India & Ors. reported in (2004) 6 SCC 299.
"24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Shoan Lal Gupta v. Asha Devi Gupta [(2003) 7 SCC 492] of which two of us (V.N. Khare, C.J. and Sinha, J.) are parties wherein upon noticing a large number of decisions in was held : (SCC p. 506, para 29) "29. The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby."9
8. This Court after having discussed the legal position as hereinabove, is now considering the facts of the given case in order to scrutinize the legality and propriety of the impugned order.
The fact, which is evident from the material on record, more particularly, from the impugned order, wherein, there is reference of a notice dated 03.04.2012 which is in two part, first, asking the explanation as to why the penalty be not imposed as provided under Section 20 (1) of the Act, 2005 and secondly, to supply the information within one week, from 03.04.2012.
The contention has been raised on behalf the learned counsel for the petitioner that the same cannot be construed to be a show cause, since, it is in two parts i.e., first part seeking explanation as to why the penalty be not imposed while the second part granting a week's time to supply information.
9. This Court is not in agreement with such submission, reason being that the meaning of notice is to communicate about the intention/the proposal of inflicting penalty/punishment to the concerned. Such proposal if communicated through a show cause notice even referring therein about the other part i.e., herein, for supply of the necessary information within a period of a week, that does not make any difference and on that ground it cannot be said that the notice issued, herein, dated 03.04.2012, is not a notice in the eye of law.
The purpose of issuance of notice is to provide an opportunity for giving an explanation as to what prevented the concerned in not complying the statutory provision. The State Information Commission has issued such communication to the petitioner. The writ petitioner has nowhere disputed in the writ petition that such show cause notice has not been issued or not been 10 served, save and except the plea has been taken that he had appeared before the Commission on 12.06.2012 but there was no sitting of the Commission.
The question arises that there may be a case that there was no sitting of the Commission but it is not the case of the writ petitioner that the office of Commission was not working. Therefore, if the office is working and the Commission is not sitting, it was incumbent upon the petitioner, who happens to be the public servant holding Class-II post in the State Government after being successful in the combined competitive examination, i.e., through the Public Service Commission, he ought to have submitted his explanation in the office itself for its consideration by the Commission when the sitting would take place. Admittedly, the petitioner has not discharged its part of duty and now is taking the plea that he had appeared before the Commission on the different dates but admittedly the explanation has not been furnished.
10. In this background and discussion made hereinabove, this Court is of the view that once the petitioner has chosen not to explain his conduct showing the reason that what prevented him in not supplying the information, which is not available for him to take the point of not providing the reasonable opportunity, as per the provision of law settled in the case of N. K Prasada (Supra) as referred hereinabove.
The provision as contained under Section 20 (1) of the Act, 2005 since stipulates that the penalty to the extent of Rs.25,000/ can be imposed if the Commission finds any irregularity in discharge of official duty as provided under the Act, 2005, but before taking such decision, a reasonable opportunity is to be given. The said reasonable opportunity, according to the finding recorded by this Court, hereinabove, since has been given but not 11 availed, therefore, the said point is not available to the petitioner in questioning the impugned order.
The further question arises that whether merely because the information has been supplied within a week from the date of issuance of notice dated 03.04.2012 as per case of the writ petitioner, which also suggests that the writ petitioner was in knowledge of the notice dated 03.04.2012 and that is the reason he, in terms of the aforesaid notice, has complied the order within a period of two months.
The question is that even if the information has been furnished within a period of a week, can such punishment be not imposed. The answer of this Court will be that in such circumstances, the punishment is required to be imposed in view of the intent of the provision of Section 7 of the Act, 2005 which stipulates that the information is required to be provided to the information seeker within the period of 30 days and the moment the period of 30 days expires, the concerned Public Information Officer is liable to be punished under the provision of Section 20 (1) of the Act, 2005. Therefore, on this ground also the petitioner is having no case.
11. This Court after having discussed the factual as also the legal aspect, is of the considered view that the writ petition since has been filed for issuance of writ of certiorari, the principle for issuance of such a writ, is having limited jurisdiction as per the judgment rendered by Hon'ble Apex Court in the case of Syed Yakoob Vrs. Radhakrishnan reported in A.I.R. 1964 477 Supreme Court wherein at paragraph no.7 their Lordships have held as follows:-
"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 12 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. 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.
In another judgment of Hon'ble Apex Court in the Case of Sawarn Singh Vrs. State of Punjab reported in (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:13
"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."
In another judgment rendered by Hon'ble Apex Court in the case of Pepsico India Holding (P) Ltd. Vrs. Krishna Kant Pandey reported in (2015) 4 SCC 270 their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of interference with the finding of the tribunal has been please to hold by placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram reported in (1986) 4 SCC 447 at para 17 has held as under:-
"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal V. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, 14 Bhagwati, J, as the learned Chief Justice then was, observed at page 1301 of the report as follows:
......... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose V. Commr. Of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extent to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking that the tribunal functions within the limits of its authority."
12. This Court, after taking into consideration the settled position of law, as has been held by the Hon'ble Apex Court in the case referred hereinabove for laying down the principle for issuance of writ of certiorari, is of the view that the writ petitioner has failed to make out a case to issue writ of certiorari by quashing and setting aside the impugned order.
13. Accordingly, the writ petition lacks merit and as such, the same is dismissed.
(Sujit Narayan Prasad, J.) Birendra/Saket/-
A.F.R.