Jharkhand High Court
Harsh Mangla vs The Jharkhand State Information ... on 4 February, 2021
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C). No. 7509 of 2011
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Harsh Mangla ... ... ...Petitioner
-Versus-
1. The Jharkhand State Information Commission, Ranchi.
2. The Secretary, Jharkhand State Information Commission, Ranchi.
3. Karan Hansda.
4. The State of Jharkhand.
... ... ...Respondents
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CORAM :THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
(Through: Video Conferencing)
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For the Petitioner : Mr. Vikash Kumar, Advocate.
For the State : Ms. Shilpi, AC to SC (Mines)-II
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09/ 04.02.2021 Heard the parties.
2. The petitioner has approached this Court with a prayer for quashing the order dated 22.07.2011, passed in Appeal Case No. 2020 of 2010, passed by learned Information Commissioner, whereby a sum of Rs.25,000/- has been imposed upon the petitioner as penalty for not providing the required information to respondent No. 3 and further direction was given to pay compensation of Rs.50,000/- to the respondent No. 3.
3. As per the facts of the case, a notice bearing No. 4425 dated 09.04.2011 issued by respondent No. 1 was received by the petitioner's office on 30.04.2011, by which the Sub-divisional Officer, Godda (petitioner herein) was directed to appear on 27.04.2011 before the respondent No. 1 in Appeal preferred by respondent No. 3, however, the petitioner could not appear before the respondent No. 1 as he had not received the said notice on time. Petitioner immediately after receiving the said notice, verified from his official records and found that the respondent No. 3, Karan Hansda never submitted any application seeking information under RTI Act, 2005. Further, the petitioner was surprised to know that even no appeal was preferred before the Additional Collector who is the first appellate authority. However, it was later on found that initially the Appeal No. 2020 of 2010 was preferred against the Assistant Public Information Officer, Office of Deputy Commissioner, Godda. Meanwhile, another notice dated 10.06.2011 was served upon the petitioner on 20.06.2011. Thereafter, on 25.06.2011 the petitioner sent letter to respondent No.1 annexing the information sought by the respondent No. 3 which he had received from the District Mining Officer, Godda. The petitioner further stated that he was the Public Information 2 Officer in Appeal No. 2020 of 2010. In the said letter, petitioner has also stated that the respondent No. 3 has filed two appeals before the respondent No. 1 for the same cause of action. It was also brought to the notice of the respondent No. 1 that he was not the PIO in Appeal No. 2020 of 2010 and also the fact that the respondent No. 3 had also preferred another appeal i.e. Appeal No. 2523 of 2010, which is still pending.
4. However, the respondent No. 1 without appreciating the aforesaid facts, passed order dated 22.07.2011 and held the petitioner guilty of non-supply of the information to the respondent no. 3 and directed to pay Rs.25,000/- as pecuniary punishment and further directed to pay Rs.50,000/- as compensation to the respondent No. 3. The said order dated 22.07.2011 has been communicated to the petitioner vide memo No. 9453 dated 29.07.2011.
Aggrieved by the same, the petitioner has knocked the door of this Court for redressal of his grievances.
5. Learned counsel appearing for the petitioner submits that the impugned order is arbitrary, illegal and bad in law. Learned counsel further argues that the learned Information Commissioner has failed to consider the fact that respondent No. 3 had preferred application seeking information to APIO, O/o Deputy Commissioner, Godda. The matter relates to the mining lease to Eastern Coalfields Ltd. (for short 'ECL') which falls within the domain of either mining department or ECL, which is a Govt. of India Enterprises and ECL has its own separate designated CPIO, which is evident from the letter issued by the ECL. Learned counsel further argues that as per Section 5 of the RTI Act, 2005, the Deputy Commissioner, Godda vide his letter dated 16.10.2007 (Annexure-6 to the writ application), submitted a list of Public Information Officers for different departments. Learned counsel further argues that RTI Act, 2005 provides a detailed procedure with respect to the appointment of Public Information Officer, request for obtaining information, filing of first appeal and the same is to be followed strictly and the impugned order passed in appeal under the RTI Act is not sustainable in the eyes of law and warrants interference by this Court. Learned counsel further submits that the impugned order has been passed mechanically and as such, the same is fit to be quashed and set aside. Learned counsel further submits that it is bad in the eyes of law to impose penalty upon the petitioner for non-supply of information in which he was not a PIO and as such, the action of respondent is against the spirit of RTI Act, 2005.
36. Ms. Shilpi, learned counsel appearing for the respondent-State very fairly submits that in absence of any instructions, he is not in a position to defend the case of the respondent-State.
7. Be that as it may, having gone through the rival submissions of the parties and upon perusal of the documents brought on record, this Court is of the considered view that the writ petition requires interference as the impugned order at the very face of it is bad in law and illegal and as such, fit to be quashed and set aside for the following facts and reasons:
(I) The impugned order has been passed in complete violation of principles of natural justice.
(II) Before passing the impugned orders, the petitioner was not provided ample opportunity of hearing to defend his case.
(III) The petitioner had already provided the required information which was in his possession.
(IV) The petitioner was never appointed as Public Information Officer to appear before the Information Commissioner and as such, any order against a person who was not holding the post of PIO is nullity and void. (V) The matter relates to the mining lease to Eastern Coalfields Ltd. (for short 'ECL') which falls within the domain of either mining department or ECL, which is a Govt. of India Enterprises and ECL has its own separate designated CPIO, which is evident from the letter issued by the ECL.
8. The learned Information Commissioner has awarded punishment dehors the rules and in complete violation of principles of natural justice, which is self- explanatory from Section 20 of the Right to Information Act. Section 20 of the Right to Information Act reads as under:
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 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:4
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.
None of the ingredients of Section-20 of the Act are applicable in the case of the petitioner and as he was not provided a reasonable opportunity of being heard before imposing penalty and as such, impugned order is not tenable in the eyes of law and is fit to be quashed and set aside.
9. The similar issue fell for consideration before the Hon'ble Apex Court in case of Manohar, s/o Manikrao Anchule Vs. State of Maharashtra & Anr., reported in (2012) 13 SCC 14, wherein the Hon'ble Court has held as under:
"22. We may notice that proviso to Section 20(1) specifically contemplates that before imposing the penalty contemplated under Section 20(1), the Commission shall give a reasonable opportunity of being heard to the concerned officer. However, there is no such specific provision in relation to the matters covered under Section 20(2). Section 20(2) empowers the Central or the State Information Commission, as the case may be, at the time of deciding a complaint or appeal for the reasons stated in that section, to recommend for disciplinary action to be taken against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the relevant service rules. Power to recommend disciplinary action is a power exercise of which may impose penal consequences. When such a recommendation is received, the disciplinary authority would conduct the disciplinary proceedings in accordance with law and subject to satisfaction of the requirements of law. It is a 'recommendation' and not a 'mandate' to conduct an enquiry. 'Recommendation' must be seen in contradistinction to 'direction' or 'mandate'. But recommendation itself vests the delinquent Public Information Officer or State Public Information Officer with consequences which are of serious nature 5 and can ultimately produce prejudicial results including misconduct within the relevant service rules and invite minor and/or major penalty.
23. Thus, the principles of natural justice have to be read into the provisions of Section 20(2). It is a settled canon of civil jurisprudence including service jurisprudence that no person be condemned unheard. Directing disciplinary action is an order in the form of recommendation which has far reaching civil consequences. It will not be permissible to take the view that compliance with principles of natural justice is not a condition precedent to passing of a recommendation under Section 20(2)."
10. Thus, the principle is clear and settled that right of hearing, even if not provided under a specific statute, the principles of natural justice shall so demand, unless by specific law, it is excluded. It is more so when exercise of authority is likely to vest the person with consequences of civil nature.
11. As a sequitur to the aforesaid observations, rules, guidelines and legal prepositions, impugned order dated 22.07.2011, passed in Appeal Case No. 2020 of 2010, is hereby quashed and set aside.
12. Resultantly, the instant writ petition stands allowed.
(Dr. S.N. Pathak, J.) / Kunal