g‘énggg $gm£§ K ‘ $ 1N THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (C) No. 7i03 OF 2007 " g‘ x L i“ PETITIONER SB. Gandhi, son of Shri Late Shri S.N. Gandhi, aged about 53 years, working as Chief Commercial Manager (RS) South Eastern CenLral Railway, Bilaspur (C.G.) VERSUS a“ : 1i Central Information Commission through ~ the Information Commissioner, Club Building, Old JNU Complex, New Delhi 110 067 RESPONDENTS 2. O.P. Mehra, aged about 50 years, son of Shri' Mehra, working as Chief Signal Engineer (Works) O/o. ; C.S.TIE. West Central Railway, Head Quarters, Jabalpur (MP) WRIT PETITION UNDER ARTICLE 226 READ WITH 227 OF TI-IE CONSTITUTION OF INDIA SEEKING A WRIT OF CERTIORARI. i H @ \\_§_ HIGH COURT OF CHHATTISGARH : BILASPUR Single Bench: Hon’ble Shri Manindra Mohan Shrivastava, J. Writ Petition [Cl No.71 03 of 2007 S. B. Gandhi Vers us Central information Commission and Petitioner Resgondehts (Writ Petition under Article 226 read with 227 of the Constitution-of India) L» Vl5resent: - Shri Vivek Verma‘ counsel for the petitioner. None for respondents though served. another ORAL ORDER (Passed on 05-04-201 1) This petition is directed against order dated 06-11-2007 (Annexure P42) passed by the Central information Commission (In short “the CIC"), by which, a penalty of Rs.10,000/— has been imposed on the petitioner in the matter of refusal of disciosure of information sought by respondent No.2. ‘2. Brief facts, necessary for decision of the case, are that the respondent No.2/complainant submitted an application on 13-10-2005 asking the Railways to provide him with the copy of the finalized CBI Report, as received by the Vigilance Department of NWR for departmental action, in connection with procurement of 8O PCs, through SPC in the year 20022003. The information daught was not supplied on 7 the ground that the departmental investigation/enquiry was stiii going on and the provision contained in Section 8(1)(h) of the Right to information Act, 2005 (In short “the Act of 2005") was . invoked. Thereafter, a fresh application under the Act 'of 2005 was filed by the respondent No.2 on 22-02-2006 again requesting for the said information i.e. providing with the copy of finalized CBI report. It was again denied vide order dated 17-03—2006 (Annexure P-4) with the remark that as the case is under departmentai enquiry against various officials, the disciosure of information sought is likely to impede the investigation/prosecution of offenders and therefore exempted under section 8(1)(h) of the Act of 2005, and further that no larger public interest are involved. Aggrieved by this order, by which, the information was refused to be disclosed, the respondent No.2, though did not prefer any first . Iappeal before the First Appellate Authority, but filed an application/complaint under Section 18 of the Act of 2005 before the CIC. The CIC passed an order on 18-04—2007 (Annexure P-7) holding that the complainant/respondent No.2 was entitled to disclosure of the information as sought and it is a case of willful denial of information to the respondent No.2/complainant. The CIC directed the petitioner to provide all the information to the complainant/application relating to his case right from the very beginning free of cost within 1O days from the date of receipt of a copy of the order. Though, the petitioner supplied information as directed by the Commissioner in his order dated 18-04-2007, the CIC proceeded to issue show cause notice to the petitioner drawing proceedings under Section 20 of the Act of 2005. ln the meantime, an order was passed on 16-07-2007 (Annexure P-8) by the CIC, which was assailed in a writ petition registered as S.B. Civil Writ Petition No.5799/2007 wherein an interim order was passed on 03-08~2007, copy of which has been placed on record as Annexure P—9. a. ln reply to show cause notice, the petitioner filed his reply (Annexure P-1 1) stating that the petitioner had formed a bonafide opinion that in the circumstances prevailing when the enquiry against other officers was not complete, it was opined that the disclosure of the CBI report at that stage to the respondent No.2/complainant, would impede the remaining part of the investigation/prosecution, and that, if the report was provided at that stage, there g1 were chances of manipulation by the accused employee. The decision was taken by welghmg public Interest Vls—a-Vls individual interest of the complainant and it as found that the pubhc interest outweighed against the indiViduai interest at the relevant point of time when the Information was sought. 4. The CIC vide its order dated 06-11—2007 has imposed penalty of Rs.10,000/— by recording that the information was denied willfully and that there was no satisfactory explanation for such denial. {I 7,3 5. Assailing the correctness and validity of the order passed by the CIC, \V/ learned counsel for the petitioner argued that the CIC has exceeded its authority in imposmg penalty, even though the petitioner had given speCific reasons and established reasonable causes for non disclosure of the information. Learned counsel for the petitioner contended that no penalty could be imposed, unless an opinion is formed that the Public information Officer has, without any reasonable cause, refused to furnish information within the time stipulated or refused to receive application for information or malafidely denied the request for information or knowmgly 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 Learned counsel then contended that the petitioner had given very cogent reasons which constituted reasonable cause to i which there was no proper application of mind by the CIC and Without recording (\any speCIfic finding and Without aSSigning any reason to disbelieve speCIfic causes disclosed by the petitioner in his reply, the CIC imposed penalty, which is illegal and unsustainable in the eye of law. 'Mwl 6. The CIC in the impugned order has recorded that once the enquiry against l the complainant/respondent No.2 was over, there should have been no problem Fq/ (£3 at all in disclosing the finalized CBI report. The CIC further took into consideration the provisions contained in Para 315 of the Indian Railways Vigilance Manual, which stated that in case where Regular Departmental Action (RDA) is recommended by the CBI, its investigation report is accompanied by the draft article of charges, statement of imputations, list of relied upon documents and witnesses. The CIC also recorded that even if the CBI report was provided, it could have in no way influenced the process of investigation by the Railways as \rt'he CBI report was already finalized. l \ 7. The reply filed by the petitioner to the show cause notice shows that the petitioner had given elaborate reasons for non-disclosure of the information/supply of CBI report. In the reply, it was stated as under:- y 4. That a vigilance case against an officer is treated as pending till the closure report is received from the CVC as per para 207, 208 and 209 of the Indian Railways Vigilance Manual. Copy of the same is enclosed and marked as annexure R-5. Therefore, treating the case as pending as per above on 13-10-2005 and 22-02-2006, the information was rightfully denied. Same right of refusal by a public authority is available under section 8(1)(h) of the RTI, Act, 2005. 5. The CBI report desired by Shri Mehra contained details of the methods adopted by the charged officials, names of the witnesses and relied upon documents for framing the charge sheets in their D & AR cases. This report was marked as confidential by the CBI and disclosure of it at that stage would have definitely impeded the remaining part of the investigation/prosecution. lf the report was provided at that stage, there were chances of manipulation by the accused employee. Thus, the matter pertained to the provisions of the section 8(1)(h) of the RTI Act. The decision by the undersigned was taken in public interest vis-a~vis individual interest of Shri 3—2006, the W9”anCe case 0 individual interest of the compiainant and it was found that pubiic interest outweighed against the individuai interest at that relevant point of time. 9. The aforesaid causes specifically stated by the petitioner in the reply to show cause notice, were not considered by the CIC. The CIC came to the conclusion that there was no satisfactory explanation because in so far as complainant is concerned, enquiry against him is already over and secondly that the provisions contained in Para 315 of the Indian Railway Vigilance Manual l permitted disclosure of CBI report in the matter of departmental action. However, ‘5‘ other relevant aspects stated in the reply to the show cause notice by the petitioner, which were made basis for non disclosure of information to respondent No.2, were not at all appreciated by the CIC. 10. The penalty under Section 20 of the Act of 2005 could be imposed only when the Commission forms an opinion that the Public information Officer, 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 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. Therefore, before imposing penalty, the CIC was under an obligation t to record specific finding after appreciating the reasons stated in the reply to show cause notice that the information has been refused to be supplied without " any reasonable cause within stipulated time or that there was malafide denial of request for information. The order of CIC shows that the CIC decided to impose penalty firstly by recording denial of request for information “willfully” and secondly that there was “no satisfactory explanation”. In the opinion ofthis Court, such grounds could not be made a basis to impose penalty. The Commission *77‘ was obliged under the law to examine whether request was matatide denied. It is trite and well settied rule of statutory interpretation that penal provisions of a statute are required to be construed strictly. Therefore, no penalty is leviable under Section 20 of the Act of 2005 on the opinion that non—supply of information was either willful or without satisfactory explanation. ”Willful” or “without atisfactory explanation do not by itself Without anything more, can be made a basis to assume that It was malafide Keeping In mind that the provrsron is penal r-in nature, word “malafide” cannot be construed liberally so as to include such cases of “willful“ or “without satisfactory explanation”. The reply of the petitioner contained number of circumstances, which ought to be taken into consideration by the CIC. That has not, been done. The explanation offered in the reply does not appear to be frivolous, and therefore, required consideration. Therefore, even the formation of opinion that non—supply of information was without satisfactory explanation, suffers from perversity and arbitrariness. As the formation of opinion under Section 20 of the Act of 2005, results in penal consequences, the CIC was under an obligation to objectively consider the reply of the petition. on all aspects and circumstances, stated in the reply of the petition. Consequently, the impugned order of penalty passed by the CIC on 06‘“ of November, 2007 cannot be sustained in law The impugned order of penalty ts therefore set aside. 11. ln view of foregoing, the petition is allowed. Sdl- Judge Manindra Mohan Shrivastava Tumane