Bombay High Court
Vithobha S/O Somaji Mungmode, ... vs The State Information Commissioner, ... on 15 July, 2016
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
wp5595.15.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.5595 OF 2015
PETITIONER: Vithobha s/o Somaji Mungmode
(Information officer/Principal) Kisan
Vidhyalaya Koregaon, Aged about 56
years, R/o Koregaon, Taluka
Desaigunj, District Gadchiroli.
-VERSUS-
RESPONDENTS: 1. The State Information Commissioner,
State of Maharashtra, Nagpur Bench,
Nagpur.
ig 2. The Education officer, (Secondary)
The Appellate Authority, Under Right
to Information Act, Zilla parishad,
Gadchiroli.
3. Someshwar S/o Vishwanath Kawle,
Aged about 59, R/o P.O.
Brahamapuri, near Khandoba
Temple, Bhavani Ward, Brahampuri,
District Chandrapur.
Shri S. Z. Qazi, Advocate for the petitioner.
Shri R. D. Bhuibhar, Advocate for the respondent No.1.
Ms. Tajwar Khan, Asstt. Government Pleader for respondent No. 2.
Ms Shilpa Giradkar, Advocate for the respondent no.3.
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CORAM: A.S. CHANDURKAR, J.
DATED: 15
th JULY, 2016.
ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned Counsel for the parties.
2. The petitioner is aggrieved by the order passed by the ::: Uploaded on - 20/07/2016 ::: Downloaded on - 30/07/2016 09:27:22 ::: wp5595.15.odt 2/6 State Information Commission dated 8-5-2015 partly allowing the appeal filed by the respondent no.3 and directing the petitioner to supply information sought by the said respondent.
3. The respondent no.3 moved an application on 23-7-2014 under provisions of the Right to Information Act, 2005 (for short, the said Act) demanding supply of information which included pay bills for the period from 1984 to 1987. The Headmaster of the concerned school in his reply took the stand that all records from 1984 up to 1987 had been audited by the competent authority and had been thereafter kept aside but the said record was now not available having been eaten by termites.
4. The respondent no.3 being aggrieved filed an appeal and the first appellate Authority directed the petitioner to take search of the said record and supply necessary information. As this information was not supplied, the respondent no.3 filed a second appeal. By the impugned order, the State Information Commission directed the petitioner to supply the necessary information and also issued a show cause notice as to why fine of Rs.21,250/-
should not be imposed.
5. Shri S. Zia Quazi, the learned Counsel for the petitioner submitted that the specific stand taken by the petitioner with regard to destruction of records on account of termites was ::: Uploaded on - 20/07/2016 ::: Downloaded on - 30/07/2016 09:27:22 ::: wp5595.15.odt 3/6 not considered by the State Information Commission and a direction to supply the said information came to be issued. He submitted that the pay bills in question had been duly audited and hence they were kept aside thereafter. According to him, the service book of the respondent no.3 bearing relevant information was made available. Moreover, the information pertained to a period prior to thirty years. He, therefore, submitted that such information which was not available with the petitioner could not have been directed to be supplied.
6. Shri R. D. Bhuibhar, the learned Counsel for the respondent no.1 and Ms. Giradkar for respondent no.3 supported the impugned order. According to them, despite directions being issued by the first appellate Authority the petitioner did not supply requisite information and therefore, the State Commission was justified in confirming the said direction. The delay in supplying the said information being deliberate, a fine of Rs.250/- per day was also rightly imposed.
7. Perusal of the documents on record indicate that a specific stand was taken by the petitioner on 29-10-2014 that the pay bills for the years 1984 to 1987 after being audited had been kept aside and they were subsequently destroyed by termites.
While considering the appeal, the State Information Commission ::: Uploaded on - 20/07/2016 ::: Downloaded on - 30/07/2016 09:27:22 ::: wp5595.15.odt 4/6 has referred to the stand in the impugned order. However, there is no finding recorded either accepting the said stand or rejecting the same. It was necessary for the State Information Commissioner to have first recorded a finding on the said stand as the availability of the said records went to root of the matter. Without recording any such finding, the State Information Commissioner merely observed that the clarification given was not satisfactory.
8. It is also to be noted that the State Information Commission issued a show cause notice so as to impose penalty on the petitioner. Under Section 20(1) of the said Act, such penalty can be imposed after the Commission has found that without any reasonable cause the information sought has not been supplied or that the request was malafidely denied. In the present case, without recording any such finding the show cause notice has been issued. Though it is submitted on behalf of the respondent no.1 that this factor can be considered in the reply to the show cause notice, once it is found that the basis for issuance of the show cause notice itself is absent, the said submission cannot be accepted.
9. In view of aforesaid, I find that the appellate Authority should be directed reconsider the appeal preferred by the respondent no.3. Accordingly the order dated 8-5-2015 passed by ::: Uploaded on - 20/07/2016 ::: Downloaded on - 30/07/2016 09:27:22 ::: wp5595.15.odt 5/6 the State Information Commission is set aside. The appeal is restored for being reconsidered by the appellate Authority in the light of observations made in this order. The appeal shall be decided on its own merits and in accordance with law. The parties shall appear before the State Information Commission on 2-8- 2016.
10. Rule is made absolute in aforesaid terms with no order as to costs.
//MULEY// JUDGE ::: Uploaded on - 20/07/2016 ::: Downloaded on - 30/07/2016 09:27:22 ::: wp5595.15.odt 6/6 CERTIFICATE "I certify that this Judgment/Order uploaded is a true and correct copy of original signed Judgment/Order."
Uploaded by : Sanjay B. Muley, Uploaded on : 20-07-2016 Personal Assistant.
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