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TMI Blog2012 (12) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No.2 did not respond at all. In fact, he made no further query to the office of the designated Public Information Officer as to the fate of his application and instead preferred an appeal before the Collector and thereafter appeal before the State Information Commission. In the meanwhile, the appellant had been transferred in the Excise Department from Nanded to Akola. If the appellant was given an opportunity and had appeared before the Commission, he might have been able to explain that there was reasonable cause and he had taken all reasonable steps within his power to comply with the provisions. The Commission is expected to formulate an opinion that must specifically record the finding as to which part of Section 20(2) the case falls in. For instance, in relation to failure to receive an application for information or failure to furnish the information within the period specified in Section 7(1), it should also record the opinion if such default was persistent and without reasonable cause. It appears that the facts have not been correctly noticed and, in any case, not in their entirety by the State Information Commission. It had formed an opinion that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 and the judgment of the High Court under appeal. Both the judgments are set aside and the appeal is allowed - direct the State Information Commission to decide the appeal filed by respondent No.2 before it on merits and in accordance with law. - CIVIL APPEAL NO. 9095 OF 2012 - - - Dated:- 13-12-2012 - Swatanter Kumar And Madan B. Lokur, JJ. JUDGMENT Swatanter Kumar, J. 1. Leave granted. 2. The present appeal is directed against the judgment dated 18th December, 2008 of the High Court of Bombay at Aurangabad vide which the High Court declined to interfere with the order dated 26th February, 2008 passed by the State Information Commissioner under the provisions of the Right to Information Act, 2005 (for short the Act ). 3. We may notice the facts in brief giving rise to the present appeal. One Shri Ram Narayan, respondent No.2, a political person belonging to the Nationalist Congress Party, Nanded filed an application on 3rd January, 2007, before the appellant who was a nominated authority under Section 5 of the Act and was responsible for providing the information sought by the applicants. This application was moved under Section 6(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible to supply the information. Therefore, you should mention the period of information in your application so that it will be convenient to supply the information. 6. As already noticed there was no hearing before the Collector and the appeal before the Collector had not been decided. It is the case of the appellant that the communication from the Collector's office dated 4th March, 2007 had not been received in the office of the appellant. Despite issuance of the letter dated 11th April, 2007, no information was received from respondent No.2 and, thus, the information could not be furnished by the appellant. On 4th April, 2007, the appellant was transferred from Nanded to Akola District and thus was not responsible for performance of the functions of the post that he was earlier holding at Nanded and so also the functions of Designated Public Information Officer. 7. Respondent No.2, without awaiting the decision of the First Appellate Authority (the Collector), filed an appeal before the State Information Commission at Aurangabad regarding non-providing of the information asked for. The said appeal came up for hearing before the Commission at Aurangabad who directed issua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he public information officer ought to have been informed to the applicant on or before 28.1.2007 and as per the said Act, 2005 there is delay 73 days for informing the applicant and this shows that, the Public Information Officer has not perform his duty which is casted upon him and he is negligent it reveals after going through the documents by the State Commission. Therefore, it is order that, while considering above said matter, the concerned Public Information Officer, has made delay of 73 days for informing to the applicant and therefore he has shown the negligence while performing his duty. Therefore, it is ordered to the Commissioner of State Excise Maharashtra State to take appropriate action as per the Service Rules and Regulation against the concerned Public Information Officer within the two months from this order and thereafter, the compliance report will be submitted within one month in the office of State Commission. As the applicant has not mentioned the specific period for information in his original application and therefore, the Public Information Officer was unable to supply him information. There is no order to the Public Information Officer to give information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mind. 11. The impugned orders do not take the basic facts of the case into consideration that after a short duration the appellant was transferred from the post in question and had acted upon the application seeking information within the prescribed time. Thus, no default, much less a negligence, was attributable to the appellant. 12. Despite service, nobody appeared on behalf of the State Information Commission. The State filed no counter affidavit. 13. Since the primary controversy in the case revolves around the interpretation of the provisions of Section 20 of the Act, it will be necessary for us to refer to the provisions of Section 20 of the Act at this stage itself. Section 20 reads as under: Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect or bring civil consequences to the delinquent. Thus, the provisions relating to penalty or to penal consequences have to be construed strictly. It will not be open to the Court to give them such liberal construction that it would be beyond the specific language of the statute or would be in violation to the principles of natural justice. 17. The State Information Commission is performing adjudicatory functions where two parties raise their respective issues to which the State Information Commission is expected to apply its mind and pass an order directing disclosure of the information asked for or declining the same. Either way, it affects the rights of the parties who have raised rival contentions before the Commission. If there were no rival contentions, the matter would rest at the level of the designated Public Information Officer or immediately thereafter. It comes to the State Information Commission only at the appellate stage when rights and contentions require adjudication. The adjudicatory process essentially has to be in consonance with the principles of natural justice, including the doctrine of audi alteram partem. Hearing the parties, application of mind and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiry may have more far reaching effect than a decision in a quasi- judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. 18. In the case of Kranti Associates (P) Ltd. Ors. v. Masood Ahmed Khan Ors. [(2010) 9 SCC 496], the Court dealt with the question of demarcation between the administrative orders and quasi-judicial orders and the requirement of adherence to natural justice. The Court held as under : 47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain EHRR, at 562 para 29 and Anya v. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, adequate and intelligent reasons must be given for judicial decisions . (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of due process . 19. The Court has also taken the view that even if cancellation of the poll were an administrative act that per se does not repel the application of the principles of natural justice. The Court further said that classification of functions as judicial or administrative is a stultifying shibboleth discarded in India as in England. Today, in our jurisprudence, the advances made by the natural justice far exceed old frontiers and if judicial creativity blights penumbral areas, it is also for improving the quality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and can ultimately produce prejudicial results including misconduct within the relevant service rules and invite minor and/or major penalty. 22. 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). In the case of Udit Narain Singh Malpharia v. Additional Member, Board of Revenue, Bihar [AIR 1963 SC 786], the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow we will examine whether there is any violation of principles of natural justice in the present case. 25. Vide letter dated 12th February, 2008, the appellant was informed by the Excise Department, Nanded, when he was posted at Akola that hearing was fixed for 25th February, 2008. He submitted a request for adjournment which, admittedly, was received and placed before the office of the State Information Commission. In addition thereto, another officer of the Department had appeared, intimated the State Information Commission and requested for adjournment, which was declined. It was not that the appellant had been avoiding appearance before the State Information Commission. It was the first date of hearing and in the letter dated 25th February, 2008, he had given a reasonable cause for his absence before the Commission on 25th February, 2008. However, on 26th February, 2008, the impugned order was passed. The appellant was entitled to a hearing before an order could be passed against him under the provisions of Section 20(2) of the Act. He was granted no such hearing. The State Information Commission not only recommended but directed initiation of departmental proceedings agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grounds stated in the Section are exhaustive and it is not for the Commission to add other grounds which are not specifically stated in the language of Section 20(2). The section deals with two different proceedings. Firstly, the appeal or complaint filed before the Commission is to be decided and, secondly, if the Commission forms such opinion, as contemplated under the provisions, then it can recommend that disciplinary proceedings be taken against the said delinquent Central Public Information Officer or State Public Information Officer. The purpose of the legislation in requiring both these proceedings to be taken together is obvious not only from the language of the section but even by applying the mischief rule wherein the provision is examined from the very purpose for which the provision has been enacted. While deciding the complaint or the appeal, if the Commission finds that the appeal is without merit or the complaint is without substance, the information need not be furnished for reasons to be recorded. If such be the decision, the question of recommending disciplinary action under Section 20(2) may not arise. Still, there may be another situation that upon perusing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed respondent no.2 to specify the period for which the information was required. If the appellant was given an opportunity and had appeared before the Commission, he might have been able to explain that there was reasonable cause and he had taken all reasonable steps within his power to comply with the provisions. The Commission is expected to formulate an opinion that must specifically record the finding as to which part of Section 20(2) the case falls in. For instance, in relation to failure to receive an application for information or failure to furnish the information within the period specified in Section 7(1), it should also record the opinion if such default was persistent and without reasonable cause. 28. It appears that the facts have not been correctly noticed and, in any case, not in their entirety by the State Information Commission. It had formed an opinion that the appellant was negligent and had not performed the duty cast upon him. The Commission noticed that there was 73 days delay in informing the applicant and, thus, there was negligence while performing duties. If one examines the provisions of Section 20(2) in their entirety then it becomes obvious that every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any reasonable cause and persistently. In other words, besides finding that any of the stated defaults have been committed by such officer, the Commission has to further record its opinion that such default in relation to receiving of an application or not furnishing the information within the specified time was committed persistently and without a reasonable cause. Use of such language by the Legislature clearly shows that the expression shall appearing before recommend has to be read and construed as may . There could be cases where there is reasonable cause shown and the officer is able to demonstrate that there was no persistent default on his part either in receiving the application or furnishing the requested information. In such circumstances, the law does not require recommendation for disciplinary proceedings to be made. It is not the legislative mandate that irrespective of the facts and circumstances of a given case, whether reasonable cause is shown or not, the Commission must recommend disciplinary action merely because the application was not responded to within 30 days. Every case has to be examined on its own facts. We would hasten to add here that wherever re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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