Uttam Kujur vs State of Jharkhand and Others

Heard Mr. Manish Kumar, learned counsel appearing for the petitioner and Mr. Sanjay Piprawall, learned counsel appearing for respondent no. 2.

Notice upon respondent no. 3 has already been served and Vakalatnama has also been filed on behalf of respondent no. 3, but nobody appears on

behalf of respondent no. 3. It has been submitted that on earlier occasions also, nobody was appearing on behalf of respondent no. 3.

Mr. Manish Kumar, learned counsel for the petitioner submits that he will correct the party position with regard to respondent no. 2, in course of the

day.

The petitioner has preferred this writ petition for quashing the order dated 06.02.2015 passed in Appeal No. 1301 of 2012 by the Acting Chief

Information Commissioner, Jharkhand State Information Commission, whereby, compensation of Rs. 25,000/- has been imposed upon the petitioner

under Section 19(8)(b) of the Right to Information Act, 2005.

Mr. Manish Kumar, learned counsel for the petitioner submits that an application was filed by respondent no. 3 on 29.02.2012 seeking certain

information about the posting of Engineers. He further submits that the then Public Information Officer provided information to the complainant on

24.04.2012 and on 15.05.2012. The said information is annexed at Annexure-6 to the supplementary affidavit filed by the petitioner. He further

submits that the complainant remained dissatisfied and filed Second Appeal before Jharkhand State Information Commission, Ranchi, where, the

representative of the Public Information Officer appeared on 31.01.2014 and submitted that all information sought by the complainant have been

furnished to him, but the matter remained pending for show cause to Public Information Officer regarding delay in furnishing information to the

complainant. He further submits that the petitioner was not posted there when the information was sought. The petitioner was posted as District

Engineer-cum-Public Information Officer on and from 27.08.2014 vide order dated 06.09.2014. He further submits that such posting order dated

27.08.2014 is annexed at Annexure-8 to the supplementary affidavit filed by the petitioner. He also submits that it is clear that the petitioner was not

posted there when the complaint was filed. He further submits that although it was recorded later on by the Information Commission that the petitioner

has already appeared, but no positive order was passed in favour of the petitioner. He further submits that the petitioner was a little bit late in

appearing before the Information Commission as he was travelling from Chaibasa for appearing before the Information Commission. He further

submits that the impugned order has been passed under Section 19 (8)(b) of the Act, 2005 against the petitioner. He further submits that the petitioner

is not a public authority as he was a Public Information Officer. He further submits that Section 19(8)(b) of the Act, 2005 is not applicable with regard

to the petitioner. He further submits that this issue has already been decided by this Court in the case of Ashok Kumar Chopra v. The State of

Jharkhand, reported in 2019 0 Supreme (Jhk) 651.

Per contra, Mr. Sanjay Piprawall, learned counsel appearing for respondent no. 2 submits that there is no illegality in the impugned order. He further

submits that the petitioner was not present on that day, that is why the impugned order has been passed.

In light of the above submissions, it is clear that the petitioner was not posted as Information Officer at the time when the complaint was filed. Even

at the time of hearing of the appeal, the petitioner was not there as he was posted as District Engineer-cum-Public Information Officer on and from

27.08.2014. Moreover, certain information was already provided by earlier Information Officer to the information seeker and, therefore, Section 19(8)

(b) is not applicable in the case of the petitioner. It has been held by this Court in the case of Ashok Kumar Chopra v. The State of Jharkhand,

reported in 2019 0 Supreme (Jhk) 651.

Paragraphs 16, 17 and 18 of the said judgment are quoted herein below:

The object of the Act to compensate the complainant by the Public Authority is for the reason that it is the Public Authority who is

supposed to keep the document in safe custody and if the document is not found available, the compensation is required to be paid by the

Public Authority.

Simultaneously, the State Public Information Officer who is the designated officer by the Public Authority, has also been casted some

responsibility/accountability to provide the information sought for by the information seeker and if there would be any negligence in

discharge of the aforesaid duty, the provision of penalty as also recommendation to initiated departmental proceeding has been provided

under the provision of Section 20(2).

The provision of Section 20(1) provides that if the Information Commission will come to a conclusion that the information seeker has

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. Provided that the Public Information Officer shall be given a reasonable opportunity of being heard

before any penalty is imposed on him.

The provision of penalty under Section 20 has been inserted by way of deterrent provision so that in case of violation of the purpose and

object of the Act, the penalty is to be imposed upon the concerned Public Information Officer either of the Central or the State Government,

as the case may be, but prior to that an opportunity of hearing is required to be provided.

In the light of the aforesaid legal position and after going across the impugned order it is evident therefrom that the Information

Commissioner has exercised the power conferred under Section 19(8)(b) as also Section 21(1) and (2) and has passed the order first for

compensating the information seeker by making payment of Rs. 20,000/- in his favour and secondly, imposing penalty of Rs. 25,000/- under

Section 20(1) and recommendation to initiate department proceeding under Section 20(2) of the Act, 2005.

As has been answered hereinabove, the power conferred under Section 19(8)(b) of the Act, 2005 pertaining to a direction to

compensate the information seeker by the Public Information Officer as has been directed in the impugned order is not sustainable in the

eye of law for the reason as discussed hereinabove that the Public Information Officer being not the Public Authority, cannot be inflicted

with the liability to compensate the information seeker, rather, it is upon the Public Authority.â€​

In view of the aforesaid facts and the judgment, the impugned order cannot survive. Accordingly, the order dated 06.02.2015 passed in Appeal No.

1301 of 2012 by the Acting Chief Information Commissioner, Jharkhand State Information Commission is quashed.

Accordingly, this writ petition stands allowed and disposed of.