Kerala High Court
R. Chandramohanan Nair vs State Information Commissioner on 3 December, 2018
Equivalent citations: AIRONLINE 2018 KER 970
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY ,THE 03RD DAY OF DECEMBER 2018 / 12TH AGRAHAYANA, 1940
WP(C).No.31735 of 2014
PETITIONER:
R. CHANDRAMOHANAN NAIR
AGED 50 YEARS
S/O.S.RAMAKRISHNA KURUP,
RESIDING AT "PRANAVAM",PANACHIMOODU LANE,
PLRA, 162 PATTOM P.O.TRIVANDRUM DISTRICT.
(PRESENTLY WORKING AS SECRETARY,
VEMBAYAM GRAMA PANCHAYATH,
KONCHIRA P.O,
TRIVANDRUM DISTRICT).
BY ADV. SRI.C.J.JOY
RESPONDENTS:
1 STATE INFORMATION COMMISSIONER
OFFICE OF THE STATE INFORMATION COMMISSION,
TRIVANDRUM - 695 001.
2 STATE PUBLIC INFORMATION OFFICER
KADINAMKULAM, CHITTATUMUKKU P.O.,
KANIYAPURAM, TRIVANDRUM - 695 301.
3 APPELLATE AUTHORITY
DY.DIRECTOR OF PANCHAYATH,
CIVIL STATION, KUDAPPANAKUNNU,
TRIVANDRUM - 695 001.
4 A.M.SALAHUDIN
S/O.LATE A.ABUSALI,
CHANDRAKANTHAM,
CHERAMANTHURUTH,
PUDIKURICHI P.O., TRIVANDRUM695 023.
WP(C).No.31735 of 2014
2
BY ADVS.
SRI.M.AJAY, SC, STATE INFORMATION COMMN
GOVT.PLEADER.SMT.POOJA SURENDRAN.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.31735 of 2014
:3 :
[CR]
JUDGMENT
~~~~~~~~~ The writ petition has been filed by the petitioner challenging Ext.P10 order whereby the petitioner has been imposed with a penalty of `25,000/- under the Right to Information Act, 2005 (for brevity, "the Act").
2. The facts emerging from the pleadings are as follows:-
The 4th respondent filed a representation before the Secretary of Kadinamkulam Grama Panchayat on 25.01.2010 alleging that certain trees standing in his neighbourhood caused threat to his life and property. As on the date of this complaint, an official other than the petitioner was functioning as Secretary to Kadinamkulam Grama Panchayat. The petitioner joined as Secretary of Kadinamkulam Grama Panchayat only on 22.04.2010. It is WP(C).No.31735 of 2014 :4 : seen that on 11.08.2010, the 4th respondent made Ext.P2 application seeking certain information relating to his complaint dated 25.01.2010 and the steps taken by the Panchayat thereon, invoking the provisions of the Act. It is the contention of the petitioner in the writ petition that on receipt of Ext.P2 application under the Act, he visited the spot in question, caused to cut branches of the trees which were causing nuisance and threat and also caused to secure the coconut trees with metal wires. The petitioner further states that he had sent reply to the application under the Act and the said fact is evidenced by Ext.P3 Stamp Account Register maintained by the Panchayat.
3. It appears that the 4th respondent did not receive the said reply and the 4th respondent thereupon preferred an appeal before the 3rd respondent under Section 19(1) of the Act. The said appeal dated 03.02.2011 was dismissed by the 3rd respondent appellate authority as per order dated 10.02.2011 on the ground that it is highly belated. WP(C).No.31735 of 2014 :5 :
4. It is seen that the petitioner went on leave from 13.09.2011 onwards and was transferred to Aruvikara Grama Panchayat. The petitioner handed over charge of the office of the Secretary of the Grama Panchayat, to Smt.I.Shamim. It is discernible from the pleadings that the 4th respondent filed a second appeal before the 1st respondent-State Information Commissioner and the 1st respondent conducted a hearing in the matter on 10.10.2013. It is seen that the official in charge of the post of Secretary, Kadinamkulam Grama Panchayat attended the hearing held by the 1st respondent and it appears that the said official has conceded that there is some merit in the complaint of the 4th respondent.
5. On these premises, the 1st respondent passed Ext.P6 order holding that the rejection of the first appeal preferred by the 4th respondent on the ground of delay, is unsustainable, that there is latches on the part of the Panchayat in properly providing information to the 4 th WP(C).No.31735 of 2014 :6 : respondent and directed that the petitioner be proceeded against under the provisions of the Act. It is the case of the petitioner that before arriving at the conclusion contained in Ext.P6, he was not given an opportunity of hearing in the matter. Without hearing the petitioner, the 1st respondent has decided and ordered to punish him.
6. On the basis of Ext.P6, the 1st respondent issued Ext.P7 notice to the petitioner seeking to show-cause against the proposed proceedings. The petitioner gave Ext.P8 reply dated 07.01.2014, in which the petitioner stated that to the best of his knowledge, he has acted on the complaint dated 25.01.2010 of the petitioner. The petitioner further stated that to his memory and belief, Ext.P2 RTI application was properly responded to within the stipulated 30 days' time. However, the 1st respondent passed Ext.P10 impugned order holding that the petitioner could not produce tangible evidence to show that information was provided to the 4th respondent in response to the RTI application filed by WP(C).No.31735 of 2014 :7 : the 4th respondent. The 1st respondent frowned upon the action of the 2nd respondent in rejecting the appeal dated 03.02.2011 filed by the 4th respondent on the ground of delay. The 1st respondent, thereupon, inflicted fine on the petitioner amounting to `25,000/-. It is challenging Ext.P10 order that the petitioner has filed the writ petition.
7. Though the writ petition was filed on 26.11.2014 and this Court passed an interim stay order in the matter, none of the respondents, especially the 4th respondent who is the RTI applicant, has filed a counter affidavit in the writ petition. Therefore, this Court is forced to consider the legality of Ext.P10 on the basis of the pleadings available in the writ petition and the oral arguments advanced by the counsel for the petitioner Advocate C.J.Joy and counsel representing the 1st respondent.
8. It is an admitted fact that the petitioner was not the Secretary of Kadinamkulam Grama Panchayat when the 4th respondent filed a complaint as regards the nuisance and WP(C).No.31735 of 2014 :8 : threat caused by certain trees in his neighbourhood. The petitioner assumed charge of the Secretary, Kadinamkulam Grama Panchayat on 22.04.2010 and thereafter, the petitioner received the application dated 11.08.2010 filed by the 4th respondent under the Act. According to the petitioner, on receipt of the application, taking into account the nature of the information sought by the 4th respondent, he had visited the spot in which the alleged nuisance/threat subsisted. The petitioner's further case is that he caused to remove the dangerous branches of the trees and caused to secure the coconut trees properly. The petitioner has produced Ext.P3 extract of Stamp Account Register, which is an official record maintained in the Kadinamkulam Grama Panchayat. Ext.P3 would indicate that certain communication has gone to the 4th respondent regarding the application filed by the 4th respondent under the Act. There is nothing on record to disbelieve Ext.P3 document produced by the petitioner.
WP(C).No.31735 of 2014:9 :
9. Though the 2nd respondent dismissed the appeal filed by the 4th respondent against denial of information, on the ground of delay, the 1st respondent entertained a second appeal by the 4th respondent. A hearing was conducted by the 1st respondent on 10.10.2013, which is after more than two years from the date on which the petitioner was transferred out of Kadinamkulam Grama Panchayat. After hearing the then Secretary to the Grama Panchayat, the 1st respondent ordered disciplinary proceedings against the petitioner, invoking Section 20(2) of the Act. The 1st respondent is a statutory functionary under the Act and when a statutory functionary discharged a statutory function, and that too, ordering penal proceedings against a government servant, it is expected and necessary that the concerned individual officer, against whom penal proceedings are proposed, is given an opportunity of hearing and heard in person. It will not meet the ends of justice if a subsequent incumbent to the post is given opportunity of hearing. The WP(C).No.31735 of 2014 : 10 : 1st respondent has not given notice to the petitioner before passing an order in the nature of Ext.P6 ordering penal proceedings against the petitioner.
10. When the petitioner received notice from the 1st respondent's office subsequent to passing Ext.P6, he attended the hearing and submitted a written reply stating that to the best of knowledge, information and memory of the petitioner, he has given reply to the RTI application of the 4 th respondent within the stipulated time. It is to be noted that the incident in question happened more than three years ago, and a Secretary of Grama Panchayat cannot invariably be expected to memorise all the steps taken by him in each and every complaint/official documents including RTI applications. Was the petitioner in Kadinamkulam Grama Panchayat at the relevant time, it would have been easy for him to consult the concerned files and make a categorical statement before the 1st respondent. A reading of Ext.P10 order of the 1st respondent would show that the 1st WP(C).No.31735 of 2014 : 11 : respondent did not appreciate the facts and circumstances of the case in its proper perspective. Instead, the 1st respondent proceeded to impose a fine of `25,000/- on the petitioner invoking Section 20 of the Act.
11. Section 20 of the Act reads as follows:-
"20. Penalties - (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 WP(C).No.31735 of 2014 : 12 : 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 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 WP(C).No.31735 of 2014 : 13 : in any manner in furnishing the information, it shall recommend for disciplinary action agaist the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him."
12. A reading of Section 20 of the Act will make it clear that the 1st respondent can impose a penalty only when-
(i) the CPIO/SPIO has, without any reasonable cause, refused to receive an application for information, or
(ii) has not furnished information within the time specified under sub-section 1 of Section 7, or
(iii) malafidely denied a request for information, or
(iv) knowingly given incorrect, incomplete or misleading information, or
(v) destroyed information which was the subject of the request or obstructed in any manner in furnishing the information.
The 1st respondent can impose a penalty only on the WP(C).No.31735 of 2014 : 14 : happening of one of the aforesaid conditions. The penalty contemplated by Section 20 of the Act is `250/- each day till information is furnished. Section 20 of the Act mandates that the maximum penalty that can be imposed under the Section is `25,000/- only.
13. It has to be noted that in the case on hand, there is no allegation that the petitioner has refused to receive the application. There is no finding that the petitioner has malafidely denied the information. There is no allegation that the petitioner has knowingly given incorrect, incomplete or misleading information. There is no allegation that he has destroyed information or obstructed in any manner furnishing the information. The allegation against the petitioner is that the petitioner has not furnished information within the time specified. Going through the pleadings in the matter, I have no reason to disbelieve Ext.P3 document, namely Stamp Account Register produced by the petitioner, which amply shows that certain information was provided to WP(C).No.31735 of 2014 : 15 : the 4th respondent by the Grama Panchayat. When a query was made to the petitioner, after more than three years of his leaving the charge of Secretary, Kadinamkulam Grama Panchayat, the petitioner stated before the 1st respondent that he has acted upon the complaint of the 4 th respondent and also provided information to the 4th respondent, to the best of his knowledge and memory. It is quite natural that an official when asked about a happening of more than three years old, will not be able to answer in definite terms.
Taking into account all the facts and circumstances stated above, I am of the opinion that Ext.P10 order of the 1st respondent cannot be sustained. Accordingly, Ext.P10 order is set aside. The writ petition is accordingly allowed.
Sd/-
N. NAGARESH, JUDGE aks/26.11.2018 WP(C).No.31735 of 2014 : 16 : APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF REPRESENTATION DATED 25.1.2010 SUBMITTED BY 4TH RESPONDENT TO THE SECRETARY, KADINAMKULAM GRAMA PANCHAYATH EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 11.8.2010 SUBMITTED BY 4TH RESPONDENT TO 2ND RESPONDENT UNDER THE RTI ACT.
EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE STAMP ACCOUNT REGISTER OF KADINAMKULAM GRAMA PANCHAYATH CONTAINING ENTRY DATED 2.9.2010 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 10.2.2011 OF THE DEPUTY DIRECTOR OF PANCHAYATH TRANSFERRING THE PETITIONER AND REPORT BY TRANSFER DATED 13.9.2011 EXHIBIT P5 TRUE COPY OF THE ORDER DATED 13.9.2011 PASSED BY THE 3RD RESPONDENT REJECTING THE APPEAL FILED BY THE 4TH RESPONDENT EXHIBIT P5A TRUE COPY OF THE REPORT OF TRANSFER DATED 13.9.2011 EXHIBIT P6 TRUE COPY OF THE PRELIMINARY ORDER DATED 28.11.2013 PASSED BY THE IST RESPONDENT EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 7.12.2013 BY THE IST RESPONDENT TO THE PETITIONER EXHIBIT P8 TRUE COPY OF THE WRITTEN EXPLANATION DATED 7.1.2014 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT WP(C).No.31735 of 2014 : 17 : EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 20.5.2014, RECEIVED BY THE PETITIONER FROM THE IST RESPONDENT EXHIBIT P10 TRUE COPY OF THE ORDER DATED 29.10.2014 PASSED BY THE IST RESPONDENT