Patna High Court CWJC No.6489 of 2009 (3) dt.09-08-2011 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6489 of 2009 ====================================================== Dr.Devi Dutta Gupta .... .... Petitioner/s Versus The State Of Bihar & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Bishnu Kant Dubey Mr. Rajeev Kumar For the Respondent/s : Mr. (Sc11) Mr. Lalit Kishore ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 3 09-08-2011 Heard counsel for the petitioner. No one appears for the State as well as State Information Commission.. By order dated 22.6.2009 counsel for the State as well as counsel appearing for the State Information Commission has been directed to file counter affidavit but no counter affidavit has been filed by them. This writ application has been filed by the petitioner for quashing of order dated 30.7.2008 passed by the State Information Commissioner, whereby penalty amounting to Rs. 25,000/- has been imposed upon the petitioner for not supplying information to one Smt. Praveen Amanullah, sought for under Right to Information Act and for quashing of an order dated 24.3.2009 issued under the signature of Patna High Court CWJC No.6489 of 2009 (3) dt.09-08-2011 Deputy Secretary-cum-Joint Registrar, State Information Commission, communicating the order passed in Appeal case No. 3359 of 2007-2008 dated 30th March, 2009, whereby the petitioner has been asked to deposit penalty amount. Further prayer is for quashing the order contained in Memo no 50 dated 7.4.2009, issued under the signature of Secretary, State Information Commission, requesting the Principal Secretary of the Health Department to direct the petitioner to deposit penalty amount by 15.5.2009 and in case of non-deposition to take necessary action against the petitioner and to recover the penalty amount. Petitioner has also prayed for a direction to the State Information Commission to refund the amount of Rs. 5,000/-, which the petitioner had deposited on 14.5.2009 under the pressure of the Department. Petitioner was posted as Superintendent at Nalanda Medical College and Hospital, Patna from April 2007 to 27.1.2008. He was transferred and posted as Deputy Director in the Department of Health and remained posted there in between 28.1.2008 to 4.8.2008. Again he was transferred and posted as Acting Principal of the Patna Medical College and Hospital, Patna, where he joined on 28.10.2008. The period in between 28.1.2008 to 4.8.2008, when the petitioner was posted as Deputy Director in the Patna High Court CWJC No.6489 of 2009 (3) dt.09-08-2011 Department of Health, he was nominated as Public Information Officer of Section I, Vide the Office order bearing No. 36 dated 14.2.2008 issued by the under Secretary, Government of Bihar, Department of Health. For a short period of 45 days, he continued as Public Information Officer for supplying information under the Right To Information Act and again Vide order dated 31.3.2008 one Tara Razak was nominated as Public Information Officer, in place of petitioner. Petitioner’s case is that the period during which he was continued as Public Information Officer, no application under the Right to Information Act, had been filed by Smt. Praveen Amanullah for supplying information with regard to action taken by the Principal Secretary, Department of Health on her representation dated 3.10.2007. Smt. Praveen Amanullah had filed her application for supplying information on 31.8.2007 and at that time petitioner was not Public Information Officer. On 3.10.2007 she had filed an appeal before the Chief Election Commissioner, bearing case No. 3359 of 2007-2008 making a complaint regarding incomplete supply of Information by the Public Information Officer of the Health Department. A notice under Section 20 (i) and 20 (2) was issued by the State Chief Commissioner under Right to Information Act against Patna High Court CWJC No.6489 of 2009 (3) dt.09-08-2011 the petitioner for showing cause why information was not supplied to Smt. Praveen Amanullah. Petitioner was asked to appear before the Commissioner on 21.4.2008. Since the petitioner has already been transferred he did not receive any notice and did not appear before the Chief Information Commissioner. Subsequently when he came to know about this notice, he filed his representation for recalling the notice issued against the petitioner under Section 20(i) and 20 (2) of the Right To Information Act. Counsel for the petitioner submits that Smt. Praveen Amanullah has filed her case for non-supplying of information demanded by her on 31.8.2007. Petitioner has not been nominated at the relevant time as Public Information Officer, no order has been passed by him, either refusing or denying substantial information to the applicant. Petitioner held the post of Public Information Officer in between 14.2.2008 to 31.3.2008. During this period, no order issued by the Chief Information Commissioner had been issued for showing cause regarding refusal by him for supplying information to the application. Any subsequent order issued for supplying information will be applicable to the then Public Information Officer. Petitioner was not provided any opportunity to defend himself instead of recalling the notice Patna High Court CWJC No.6489 of 2009 (3) dt.09-08-2011 under section 20(i) and 20(2) of the Act, Penalty of Rs.25,000/- was imposed by the Chief Information Commissioner. The impugned orders have been issued completely in violation of the provisions under the Act as well as in violation of Rule of Natural Justice. No counter affidavit has been filed denying the statement of the petitioner. Admittedly petitioner remained posted as Public Information Officer only for 45 days, till that date no application had been filed by the applicant for supplying any information of any incident which had taken place. The petitioner as Public Information Officer had not denied to supply any information. Any incident either earlier to the date of petitioner’s being nominated as Public Information Officer or subsequent to the date he relinquished the post, cannot be considered for holding him guilty for not supplying the information under the provisions of the Act. Accordingly, the order dated 30.7.2008 passed by the State Information Commissioner, imposing penalty of Rs.25,000/- against the petitioner and order dated 24.3.2009 communicating this order to the petitioner as well as the order dated 7.4.2009 issued under the signature of Secretary, State Information Commission to the Principal Secretary of the Health Department for taking Patna High Court CWJC No.6489 of 2009 (3) dt.09-08-2011 action against the petitioner for not depositing penalty amount are quashed. The amount of Rs. 5000/- which the petitioner had deposited under the pressure of the Department, as part of the penalty, shall be refunded to the petitioner by the Secretary, State Information Commission within eight weeks from the date of production/communication of this order. Arun Kumar/- (Mridula Mishra, J)