2011(2) ALL MR 779
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)

U.D. SALVI, J.

Shri. A. A. Parulekar Vs. Shri. G. G. Kambli & Shri. A. Venkataratnam, State Information Commissioner & State Chief Information Commissioner, Goa & Ors.

Writ Petition No.364 of 2007

26th March, 2010


Respondent Counsel: Shri. GURU SHIRODKAR

(A) Right to Information Act (2005), S.6(3) - Transfer of application - Public Authorities contemplated under S.6(3) - State Public Information Officer and State Assistant Public Information Officer are public authorities as contemplated under S.6(3) - Therefore, transfer of application from State Public Information Officer to State Assistant Public Information Officer, held, is transfer of application under S.6(3). (Para 12)

(B) Right to Information Act (2005), S.20 - Penalty for withholding disclosure of information - Challenge to - Order passed by State Commission without appreciating explanation offered by State Public Information Officer for his actions in proper perspective - Also, facts necessary to indicate mala fides on part of officer lacking in material considered by State Commission - Therefore, order holding him guilty for mala fidely withholding disclosure of information and consequently penalizing him liable to be quashed. (Paras 10 to 15)

Cases Cited:
John Nazarate Vs. Chief Electrical Engineer, Appeal No.89/2007, Dt.:-24-4-2007 [Para 6]


JUDGMENT

JUDGMENT :- Heard the petitioner and the State. None for the other respondents. Perused petition and the annexures therewith.

2. The petitioner, the then superintendent Engineer, Public Works Department, State of Goa is seeking quashing of the orders dated 30.3.2007 in Appeal No.72/2006 and dated 27.06.2007 passed in Penalty Case No.28/2006 in the said appeal by Goa State Information Commissioner upon holding him guilty of malafidely withholding the disclosure of the information to the respondent No.2 - Joao Caldeira under Section 20 of the Right to Information Act, 2005 (hereinafter referred to as 'the Act'), in this petition.

3. Facts leading to this petition, which substantially are not in dispute, are required to be reiterated for the purposes of understanding the issue as under :

The petitioner was holding office as Superintending Surveyor of Works (for convenience called as SSW) between 19.10.2005 and 03.04.2007 till he was transferred to his present posting as Superintending Engineer (SE) In-charge of Circle II. He proceeded on leave for period of 17 days from 18.11.2006 to 04.12.2006 leaving his charge in hands of other officer of the same rank Smt. Alka Hede on 17.11.2006. The application dated 16.11.2006 of the respondent No.2 - Joao Caldeira seeking information about the selections made in connection with the advertisement notice - 34/51/2005/PCE/PWD/ADM (III) 521 dated 17.11.2005 published in 'The Navhind Times' newspaper dated 23.11.2005, to fill up 33 vacancies of Junior Engineers in PWD was received in the office of the SSW on 17.11.2006. The information sought was connected with the functions of and as such was held by the Deputy Director of Administration, PWD. Smt. Alka Hede acting as a State Public Information Officer, PWD, therefore, transferred the application dated 16.11.2006 of the respondent No.2 - Joao Caldeira to the Deputy Director of Administration as per Section 6(3) of the Act. As there was no response to the said application dated 16.11.2006 from the office of the Deputy Director of Administration, PWD, the respondent No.2 - Joao Caldeira addressed reminder dated 14.12.2006 to SSW - the then State Public Information Officer-P.W.D. The petitioner responded to this reminder with his letter dated 18.12.2006 informing the respondent No.2- Joao Caldeira that his application was transferred to Deputy Director of Administration, P.W.D. as the information sought was in custody of the said office and any action for non-supply of the said information by the said office would lie against the said office as per section 5(5) of the Act. Information was not supplied and the respondent No.2 had to file an appeal before the then first Appellate Authority - the Principal Chief Engineer, P.W.D. on 20.12.2006. Thereafter, the Deputy Director of Administration, P.W.D. dispatched letter dated 10.1.2007 to the respondent no.2 - Caldeira informing him that his application dated 20.12.2006 was rejected.

4. Meanwhile, the State of Goa published a memorandum dated 22.12.2006 under sub-sections 1 and 2 of Section 5 of the Act changing the whole set up of Public Information Officers (P.I.Os.) and Assistant Public Information Officers (A.P.I.Os.) for the Public Works Department as previously established by superseding the previous government order dated 22.9.2005. As per the Government order dated 22.9.2005, Superintending Surveyor of Works, P.W.D.- SSW was designated as State Public Information Officer for the entire department of P.W.D. and 8 Specific Executive Engineers as well as Deputy Director of Administration, P.W.D. as A.P.I.Os., more particularly the Deputy Director of Administration was designated as A.P.I.O. for the information pertaining to service matters; and the Principal Chief Engineer, P.W.D. was designated as the First Appellate Authority. This set up was completely changed with the memorandum dated 22.12.2006. The Executive Engineers controlling specific field of activity and the Deputy Director of Administration vested with the matters pertaining to all offices at P.W.D. Head Office were designated as P.I.Os. by virtue of the order dated 22.12.2006 published in the gazette. The office of the SSW, P.W.D. was designated as First Appellate Authority in place of Principal Chief Engineer with the said order.

5. Upon cessation of the office of the Principal Chief Engineer as the First Appellate Authority, the first appeal of the respondent No.2 - Caldeira was marked to Deputy Director of Administration, P.W.D. and after expiry of 30 days' time limit on 29.1.2007, the Deputy Director of Administration, P.W.D. sent the said appeal to SSW without disclosing the fact that a letter refusing to give information to the respondent No.2- Caldeira was already written. According to the petitioner, he promptly passed the order dated 30.1.2007 recording the said facts and directing the Deputy Director of Administration, P.W.D. as S.P.I.O. to furnish the requisite information immediately to the respondent No.2- Caldeira without charging any fees.

6. All these facts, according to the petitioner, were placed by him before the Goa State Information Commission in Second Appeal No.72/2006 vide written reply dated 19.2.2007. The petitioner states that in addition to the said reply, he responded to the show cause notice issued by the State Information Commission pursuant to the order dated 30.3.2007 in the said appeal with communication dated 3.5.2007. The petitioner with the letter dated 3.5.2007, drew the attention of the State Information Commission to the judgment dated 24.4.2007 passed in Appeal No.89/2007, John Nazarate Vs. Chief Electrical Engineer and Anr. on one such similar point.

7. Perusal of the impugned order dated 30.3.2007 passed by the Goa State Information Commissioner reveals that lack of bonafides resulting in denial of the information and harassment of the respondent no.2 - Caldeira was seen by the State Information Commission on the part of the petitioner herein from the following facts :

(i) Transfer of the application under Section 6(3) of the Act by the petitioner to the Deputy Director of Administration, P.W.D.

(ii) Obligation on the part of the petitioner to provide the information to the respondent No.2 - Caldeira within statutory period of 30 days as prescribed under Section 7, sub-clause (1) of the Act in spite of the respondent No.2 Caldeira approaching the petitioner on several occasions.

(iii) The petitioner's passing the order in the first appeal on 30.1.2007 after filing of the second appeal before the Commissioner.

8. Significantly, the respondent No.2 - Caldeira, who could not get the information sought by him, filed an affidavit-in-reply dated 1.9.2009 completely exonerating the petitioner from the blame of malafide denial of the information and harassment to him. He averred that on receiving the impugned order, he saw that the State Commission has come to its own conclusion regarding the malafides and withholding of the information and harassment to him. He further pointed out in his affidavit that he had neither made grievous prayer against the petitioner nor at any stage alleged any harassment or mental torture at his hands. The respondent No.1 - Mr. G. G. Kambli, the then State Information Commissioner defended his order with the affidavit dated 14.9.2007. He did not dispute the facts, but placed his view point regarding the relevant provisions of law, particularly Section 6 and Section 5 of the Act, which he had previously voiced in the impugned order.

9. The provision for penal action under the Act is found encoded under Section 20 of the Act. The analysis of this provision reveals that the State Public Information Officer can be penalised by the State Information Commission at the time of deciding any complaint or appeal if the Commission happens to form an opinion that the State Public Information Officer has, without any reasonable cause,

(i) refused to receive an application for information or

(ii) has not furnished information within time specified or

(iii) malafidely denied the request for information or

(iv) knowingly given incorrect, incomplete or mis-leading information or

(v) destroyed information

(vi) obstructed in any manner in furnishing the information.

In the instant case, the first and last three contingencies are not seen by the State Information Commission as relevant for forming his opinion regarding the guilt of the petitioner as State Public Information Officer.

10. Facts necessary to indicate the malafides on the part of the petitioner, are found conspicuously lacking in the material considered by the State Commission. Moreover, the State Commission failed to appreciate the explanation offered by the petitioner for his actions in proper perspective.

11. The State Information Commission for short, the Commission viewed the making of the application by the respondent No.2 - Caldeira to P.I.O. and not to the Public Authority and, therefore, the Commission held that the petitioner could not have transferred the application to the Deputy Director of Administration, P.W.D. under Section 6, sub-section 3 of the Act. It is correct that the application for information dated 16.11.2006 was addressed to the Public Information Officer, P.W.D. - the office held by the petitioner as SSW, P.W.D. at the material time. However, a question arises whether in his capacity as a Public Information Officer, he ceases to be an public authority within the meaning of Section 6, sub-clause 3 of the Act.

12. To aid the understanding of the term 'Public Authority' the Act itself provides its definition under Section 2(h), which reads as under :

" 'Public authority' means any authority or body or institution of self-government established or constituted,-

(a) by or under Constitution;

(b) by any other law made by Parliament;

(c) by any other law by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any -

(i) body owned, controlled or substantially financed;

(ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate government."

Wide and expansive meaning to the term 'public authority' is given by the Section 2(h) of the Act so as to include every authority, body or institution of self-government established by law. In a generic sense, the term 'authority' means a person or persons or a body, exercising power or command, and as such means and includes any authority or officer authorised by the Central or State Government in accordance with laws in force vide P. Ramanatha Iyyer's advanced Law Lexicon, IIIrd Edition - 2005, Volume I, page 414. Offices of the State Public Information Officer and State Assistant Public Information Officer have been constituted by the State Government by order made under sub-sections 1 and 2 of Section 5 of the Act and duly notified in the Government Gazette. It, therefore, goes without saying that the State Public Information Officer and State Assistant Public Information Officer are public authorities as contemplated under Section 6(3) of the Act. The transfer of application under Section 6(3) of the Act by the officer holding charge of the petitioner as SSW - State Public Information Officer to the Deputy Director of Administration, P.W.D., A.P.I.O. can, therefore, be viewed as transfer of the application under Section 6, sub-clause 3 of the Act.

13. Undoubtedly, the requisite information was closely connected with the functions of the Deputy Director of Administration, P.W.D. - Public Authority - A.P.I.O. and as such held by it. Fact of transfer of the application by one public authority to another is not in dispute except the view taken by the State Commission about such transfer. This view of the State Commission certainly is erroneous.

14. Even assuming for a moment that the petitioner ought to have taken assistance of the Deputy Director of Administration under sub-section 5 of Section 5 of the Act and not transferred the application to the said office is a correct interpretation of law as done by the Commissioner, the letter dated 20.11.2006 transferring the application can be virtually seen as a step taken for seeking assistance of the concerned officer in possession of the information. Section 5, sub-clause 5 of the Act in fact commends the role of State Public Information Officer to such other officer whose assistance is sought for the purpose of any contravention of the provisions of the said Act. Facts clearly reveal that the petitioner was on earned leave between 18.11.2006 and 04.12.2006 and had done what he could do in the given circumstances. This can be further perceived from the fact that he promptly ordered the Deputy Director of Administration, P.W.D. to furnish the information immediately to the appellant without charging any fees vide order dated 30.1.2007.

15. In the given facts and circumstances, this petition must succeed. The impugned orders holding the petitioner guilty for malafidely withholding disclosure of the information, and consequently penalising him with a penalty of Rs.5,000/- are quashed and set aside. However, the State must note that things do not speak well about the governance in the State, particularly regarding disclosure of information under the said Act. Rule is, therefore, made absolute with no order as to costs.

Petition allowed.