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2024:CGHC:50566
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Order Reserved on 13.08.2024
Order Delivered on 20.12.2024
WPC No. 2216 of 2024
1 - Anup Kumar Rathiya S/o Bal Singh Rathiya Aged About 38 Years Working As
Panchayat Secretary, Gram Panchayat, Kachhar, Janpad Panchayat, Patthalgaon,
District : Jashpur, Chhattisgarh
... Petitioner
Versus
1 - State Of Chhattisgarh Through The Panchayat And Rural Development
Department, Mantralaya, Atal Nagar, Nawa Raipur, District : Raipur, Chhattisgarh
2 - Chhattisgarh State Information Commission Through The Commissioner, Sector-
19, Sector -19, North Block, Nava Raipur Atal Nagar, District : Raipur, Chhattisgarh.
3 - The First Appellate Authority-Cum-Chief Executive Officer Janpad Panchayat,
Pathalgaon,District–Jashpur,Chhattisgarh.
4 - Akash Bairagi R/o Village And Post- Gobarsinha (Sariya), District – Raigarh
(C.G.).
... Respondent(s)
For Petitioner(s) : Mr. Harish Khuntiya, Advocate
For Respondent No. 1 : Mr. Praveen Das, Dy. Advocate General
For Respondent No. 2 : Mr. Shyam Sundar Tekchandhani, Advocate
For Respondent No. 4 : Mr. Dinesh Yadav, Advocate
SB: Hon'ble Shri Parth Prateem Sahu, Judge
C A V ORDER
1. The petitioner has filed this writ petition seeking following reliefs:-
“10.1 That, the Hon’ble Court may kindly be
pleased to call the records pertaining to the case
from the respondent authorities.
10.2 That, this Hon’ble Court may kindly be
pleased to issue an appropriate writ, thereby setting-
aside/quashing the impugned order dated
Digitally
SHUBHAM signed by
DEY SHUBHAM
DEY
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21.09.2023 (Annexure P/1) and further be pleased to
direct that no coercive step be taken against the
petitioner pursuant to the impugned order.
10.3 To kindly grant any other relief which may be
deem fit in the given facts and circumstances of the
instant case.”
2.
By this writ petition, petitioner is challenging the legality and sustainability
of the impugned order dated 21.09.2023 (Annexure P/1) passed by the
Chhattisgarh State Information Commission, Raipur imposing penalty of
Rs. 25,000/- upon the petitioner under the provisions of Section 20 (1) of
the Right to Information Act, 2005 (hereinafter for brevity referred to as
the Act, 2005).
3.
Learned counsel for the petitioner submits that the petitioner was holding
the post of Panchayat Secretary, Village Panchayat Kachhar, Block –
Patthalgaon, District – Jashpur. Respondent No. 4 submitted an
application under the Act, 2005 for providing the information of Stock
Register maintained under the Account Rules, 1999 of Village Panchayat
Kachhar for a period of 01.03.2020 till 08.11.2021. When the information
could not be supplied, he submitted the first appeal on 20.12.2021 and
the First Appellate Authority had not passed any order in the said appeal.
Being aggrieved, the petitioner filed second appeal/complaint before the
Commission on 27.04.2022. After filing of the complaint, information was
supplied as asked for by the Respondent No. 4 and he also
acknowledged the receipt of information on 18.01.2023 (Annexure P/2). In
the acknowledgment, he has also mentioned that he do not want any
proceedings or action on the complaint filed by him before the State
Information Commission.
4. It is contention of the counsel for the petitioner that as the applicant
seeking information has given an acknowledgment that he do not want
any action against the Public Information Officer, petitioner was of the
view that the complaint would be withdrawn or dismissed by the State
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Information Commission, however, the impugned order was passed
imposing the penalty, even after providing the information sought for. It is
contention of counsel for the petitioner that before imposing penalty, no
show-cause notice as provided under Section 20 (1) of the Act, 2005 was
issued to the petitioner and therefore, also, the order imposing penalty is
bad in law.
5. Learned counsel for the Respondent No. 4 submits that the reply is filed
pleading therein that the Respondent No. 4 is satisfied with the
information supplied by the petitioner and his grievance is settled.
Respondent No. 4 gave acknowledgment in this regard on 18.01.2023
(Annexure P/2). The fact of providing information as sought for giving
acknowledgment in this regard, regarding his satisfaction to the
information and further, that the Respondent No. 4 do not want any action
to the complaint could not be placed before the State Information
Commission, which led to passing of the order.
6. Learned counsel for Respondent No. 2 submits that the Respondent No.
4 has filed complaint pleading therein that he submitted an application on
08.11.2021 seeking information under the Act, 2005 which was not
supplied within the stipulated period as provided under the Act, 2005.
Respondent No. 4 thereafter preferred first appeal before the First
Appellate Authority, however, the First Appellate Authority has also not
taken decision and not passed any order in the first appeal which made
the Respondent No. 4 to file complaint before the Respondent No. 2
which was registered. He contended that the Respondent No. 2 in its
proceedings dated 24.01.2023 has directed for issuance of show-cause
notice under Section 20 (1) & 20 (2) of the Act, 2005 stating as to why
cost of Rs. 25,000/- be not imposed and as to why, the disciplinary
proceedings be not initiated and on the next date fixed, the impugned
order was passed. Taking note of the fact that the reply to the show-cause
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notice was also not filed, the order impugned is passed following the due
procedure as provided under the Act, 2005.
7.
I have heard learned counsel for the respective parties and also perused
the documents placed before this Court for perusal.
8.
Perusal of the documents enclosed would show that the Respondent No.
4 filed an application seeking information under the Act, 2005. It is also
appearing that the information was not supplied within the time as
prescribed under the Act, 2005 which led to filing of the appeal by the
Respondent No. 3 to the Appellate Authority. The Appellate Authority has
also not taken decision on the first appeal. Respondent No. 3 filed a
complaint. The acknowledgment dated 18.01.2023 (Annexure P/2) would
show that during pendency of the complaint, information was supplied to
the satisfaction of the Respondent No. 4/applicant therein and he also
acknowledged the same, mentioned that he does not want to pursue the
complaint.
9. From the acknowledgment (Annexure P/2), it is appearing that the
Respondent No. 4 have clearly stated that he do not want to pursue the
appeal and made a prayer to close the file. The Respondent No.
1/Commission also submitted its reply pleading therein that the show-
cause notice under Section 20 (1) of the Act, 2005 was also directed to be
issued and further that the notices have been issued through registered
post.
10.Be that as it may, under the provisions of the Act, 2005, the First Appellate
Authority or the State Information Commission can impose penalty and
may also directed for disciplinary action against the Public Information
Officer under Section 20 (2) of the Act, 2005. However, it is pre-condition
that before imposing penalty or passing the order of direction for initiating
departmental proceedings against the Public Information Officer, he is to
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be given an opportunity of hearing. The documents placed on recorded
along with the reply filed by the Respondent No. 2/Commission would
show that the Respondent No. 2 has filed a copy of the notice of
complaint as Annexure R-01/01 and further, the copy of the order-sheets
dated 24.01.2023 as Annexure R-01/02. Perusal of the order-sheet would
show that in compliance of the order dated 24.01.2023, direction was
issued for issuance of show-cause notice under Section 20 (1) and 20 (2)
of the Act, 2005. But, in the said order-sheet, there is no mention that
pursuant to the order issued by the Respondent No. 2, show-cause
notice was issued to the petitioner.
11. In reply, it is pleaded that the show-cause notice was issued by registered
post. The notice is to be sent on the address of the petitioner who is
posted in the village in rural area. No document has been enclosed to
show that the show-cause notice, if issued, was served upon the
petitioner before the date fixed i.e. 21.09.2023.
12.The order of penalty for failure to provide information is akin to criminal
action to be taken against a person under the law and therefore, it was
the duty cast upon the Commission to record that the notice issued for
imposing penalty and taking disciplinary action is served upon the person
to whom it is issued i.e. the petitioner and even after service of notice, he
failed to appear and submit its reply. In the impugned order dated
21.09.2023, no such finding is recorded by the Respondent No.
1/Commission. In absence of such specific finding recorded by the
Commission before passing an order of imposing penalty under Section
20 (1) of Act, 2005 that the show-cause notice ordered to be issued by the
Commission was issued and served upon the Public Information Officer,
more so, when in the order-sheet pursuant to the order dated 24.01.2023,
no date of issuance of show-cause notice is reflecting. Issuance and
service of notice cannot be presumed. Respondent No. 2 has not filed
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any document in support of its contention to show that notice if any,
issued by what mode and whether it is served upon prior to date of
hearing.
13.
In the aforementioned facts of the case, as there is no material available
in the record to satisfy that the notice was issued and served upon the
petitioner before the date of hearing of the case. The impugned order
dated 21.09.2023 (Annexure P/1) imposing penalty upon the petitioner
under Section 20 (1) is in violation of principles of natural justice.
14.
For the foregoing discussion, order impugned dated 21.09.2023
(Annexure P/1) imposing penalty upon the petitioner is not sustainable in
the eyes of law. Accordingly, it is set-aside.
15.The writ petition stands allowed.
Sd/- Sd/-
(Parth Prateem Sahu)
Judge
Dey