ARVIND KUMAR LOHANI AND ORS. vs UTTARAKHAND STATE INFORMATION COMMISSION AND ANR

Before disposing this Writ Petition in the light of the judgment rendered by this Court in Writ Petition No. 1296 of 2009 (M/S) on 2nd April, 2018, the

brief narration of the facts are necessary for a judicious consideration of the controversy, in question. Â

It is the case of the petitioners that respondent No. 2 has filed an application on 4th August, 2011 under the Right to Information Act seeking certain

information from the petitioners who are said to be Information Officers as appointed under the Act.Â

It is the case of the petitioners that in the capacity of the Public Information Officers, the information regarding almost all the points, for which, the

information was sought by respondent No. 2 was answered on 19th August, 2011, but still, the respondent No. 2 feeling dissatisfied with the

information provided on 19th August, 2011, is said to have preferred an Appeal before the Appellate Authority on 2nd September, 2011. The

Departmental Appellate Authority / Commissioner before whom the appeal was preferred by respondent No. 2, vide his letter dated 12th, 21st and

27th September, 2011, had called upon the respondent No. 2 to appear before the Appellate Authority and to put up his version in support of his appeal

but the respondent No. 2 deliberately avoided to participate in the proceedings and he did not appear before the Departmental Appellate Authority.Â

On account of non participation of respondent No. 2 in the Appeal, the Appeal as preferred by respondent No. 2 was dismissed by the order dated 4th

October, 2011 / 10th October, 2011. It is being aggrieved against the alleged non-supply of the information as well as the Appellate Order, the

respondent No. 2 has filed a Second Appeal before the Uttarakhand State Information Commissioner on 28.12.2011. The said Second Appeal has

been decided by the impugned order dated 23rd January, 2012. By the impugned order, in question, the Second Appellate Authority in para 6 has

directed to issue show cause notice against the Public Information Officer as to why a penalty may not be imposed against him. Simultaneously,

there was also a direction to issue show cause notice against the Information Officer calling upon his explanation as to why an order may not be

passed under Section 19 (8) (ka) for directing to conduct a departmental inquiry against him. It is this order which has been put to challenge by the

petitioner No. 1 in his personal capacity by availing the professional services of the office of the Chief Standing Counsel and its machinery.Â

The issue which crops up for consideration before this Court is as to whether on imposition of penalty on the Public Information Officer, as appointed

under the Right to Information Act of 2005, the penalty provided u/s 20, which happens to be a liability in persona could be challenged, by him in

person, by availing the professional services of the Chief Standing Counsel and its machinery and state money can be used for the said purpose,

contrary to the provisions and purpose of their appointments under Legal Remembrancer Manual.Â

 For a logical conclusion, certain provisions contained in the Manual are necessarily required to be considered. Under Chapter V of Legislative

Secretary-cum-Legal Remembrancer Manual, in its clause 5.04 deals with the duties attached to the office of Chief Standing Counsel, it enumerates

the area of duties of the Chief Standing Counsel, in the sub-clauses contained under clause 5.04. In the interpretation clauses of Chapter 1, the term

“Authority†has not been defined. Though in sub-clause (8) of clause 1.02, it defines Chief Standing Counsel, which includes within its ambit the

Standing Counsels of the High Courts. Meaning thereby, on the definition of a Chief Standing Counsel as provided under clause 1.02, it would include

within its ambit the Additional Chief Standing Counsel also. Under the duties defined in clause 5.04 subclause (3) in particular for the purpose of

present case, it reads as under:-Â

“(3) to represent the State or any authority within the State in such other civil cases in which he might be directed or required to appear by the

Government, the Legal Remembrancer or the High Court,â€​Â

The term “authority†herein used would mean the ‘office’ and not the government officer personally, more particularly, when the office of

Chief Standing Counsel is called to defend personal liability of an officer, who has been harnessed individually with a liability under law, it imposes a

personal liability for dereliction of duty by an officer. The duties so far as defined and which fall within the ambit of the office of the Additional Chief

Standing Counsel or the Chief Standing Counsel to be discharged under the LR Manual, is to represent the cause of the State or any authority within

the State in such other civil cases by or on behalf of state, where it involves stakes of the state, and its states interest which is affected, in which Chief

Standing Counsel might be directed or required to appear by the Govt. and for the Govt. So the form represent as contained under sub-clause (3) of

clause 5.05, means representation for a cause taken against a State or its authority to defend the State and its interests before the court of law. In the

absence of the term authority being defined under the Manual, its interpretation could be derived from the term authority as literally defined under the

legal glossary, which defines the word “authorityâ€​ as under:-Â

A right, “An Officialâ€​ or Judicial Command; also a legal power to do an act given by one man to another.Â

Meaning thereby, the authority is the power which has been vested with the office represented by an official of the State entitled to legally exercise

authority i.e. power, it would include designation of an officer and not an individual or person himself. It is the office of State or any department of

which any action if taken is required to be defended by Standing Counsel in the court of law.Â

In another dictionary, the word “authorityâ€​, means, a power is, which is vested with an office. That means that it always denotes an office and not

officer himself. Term authority is an abstract power to an individual officer, who has to exercise the powers, within the ambit of the provisions of Act

or the law which vests in it. In other words, it is not an individual or any persona, who can be termed as an authority within the definition of authority

as defined under the legal glossary or under the L.R. Manual.Â

In the present case which has been filed by the then Public Information Officer, who has been imposed upon a penalty u/s 20 of the Right to

Information Act, 2005 by the impugned order dated 23.01.2012 under challenge. He has preferred the writ petition against the impugned order dated

23.01.2012, where a penalty of Rs. 10,000/- has been imposed upon him in his individual capacity. The term penalty has been dealt u/s 20 of the RTI

Act, 2005 which reads as under:-Â

“20. Penalties. â€" (1) Where the Central Information Commission or 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

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 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:Â

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:Â

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.Â

(2) Where the Central Information Commission or 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 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.â€​Â

Also because when legislature u/s 20(2), grants liberty to direct holding of disciplinary proceedings against the erring officer. Under service law,

disciplinary proceedings are only drawn against individual officer, and not against the authority or office which he carries, or which he enjoys the

office, hence also logically the imposition of penalty would always u/s 20 denote to an individual person who cannot be permitted to defended by the

office of Chief Standing Counsel at the cost of the State. Thus this Court feels writ petition filed by individual officer through Chief Standing Counsel

office would not be maintainable, as being beyond the scope of duty vested with office of the Chief Standing Counsel.Â

The legislature, in its proviso 1 & 2 of Section 20, of the RTI Act has used the words “heâ€, which denotes to be an officer of the State, who in an

event of failure to provide the information as contemplated under the Act has to be levied with the penalty u/s 20 of the Act. But there are certain pre-

conditions which are required to be either to prior to imposing the penalty u/s 20 i.e. a reasonable opportunity of being heard is to be provided to

“himâ€, and it is not the authority or office but rather an individual, which is provided an opportunity of hearing to defend, has to ensure before

coming to the conclusion to levy a penalty that “heâ€​ has act reasonably and diligently.Â

In that view of the matter, and for the reason assigned above, this Court feels that once a penalty is imposed u/s 20 of the RTI Act on the Information

Officer, as constituted u/s 5 of the Act, it would be the officer in person responsible for the penalty, as such, if the officer concerned feels aggrieved

against the imposition of penalty and wants to agitate the cause before a superior court, he could do so in his individual capacity and for the said

purpose, he can only file a writ petition after engaging a private counsel and not through an Additional Chief Standing Counsel or Chief Standing

Counsel, as defined under the L.R. Manual. As such, this Court feels that this writ petition as preferred by the petitioner in his individual capacity

could not have been filed through the office of the Chief Standing Counsel.Â

Thus, for the above reason the writ petition is dismissed on this ground itself, leaving it open for the petitioner to engage a private advocate and to file

writ petition. If he so chooses, to do so, it is expected that if any writ is filed, the Court concerned would consider the impact of pendency of this writ

petition since 2012 with regards to latches.Â

Subject to above liberty, writ petition is dismissed. No order as to costs.

For the reasons assigned hereinbelow, this Court feels that since the impugned order dated 23rd January, 2012 proposing to impose a penalty and to

conduct a disciplinary proceedings is not against the office which is held against the petitioner No. 1 but rather an individual, i.e. the Information

Officer as appointed under the Act, it would be an order passed in persona and not against an office and as such, the writ petition filed by the

petitioner through Standing Counsel would not be maintainable.Â

Hence for the reason assigned hereinbelow, the writ petition is dismissed as not maintainable with liberty to the petitioners to file a fresh if so advised

by engaging another private Advocate.Â