HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 246 of 2009 (M/S) L. Fanai …. Petitioner .. Versus The Uttarakhand Information Commission & another … Respondents Mr. K.P. Upadhyay, learned Additional Chief Standing Counsel for the State of Uttarakhand/petitioner. Mr. Vipul Sharma, learned counsel for respondent no. 1. 26th June, 2009 Hon’ble Sudhanshu Dhulia, J. The petitioner states that he was the District Magistrate of Udham Singh Nagar between 22.5.2007 to 16.6.2008. It was during this period that an information under Right to Information Act was sought from the Public Information Officer of the district, which at the relevant time was the Tehsildar, Kashipur by one Shri Omkar Deep Singh regarding information of certain “receipts”, as to whether these receipts have been issued by the office of Tehsildar or not. It appears that the information was being sought against the illegal transfer of land and certain receipts ostensibly issued from the office of Tehsildar, Kashipur were in question and, therefore, such an information was being sought. Since, no satisfactory information was given to respondent no. 2 at the relevant time, he was constrained to file a first appeal and consequently second appeal before the Information Commission. Therefore, the Information Commission, vide his order dated 28.11.2007, not only directed the Public Information Officer to furnish the relevant information but also directed the District Magistrate, Udham Singh Nagar i.e. the petitioner to constitute an enquiry into the matter. 2 Thereafter, vide order dated 13.12.2007, the information was given to the respondent no. 2. It was stated by the Public Information Officer that receipts in question had not been issued from the office of the Tehsildar, Kashipur. However, on the second aspect regarding the enquiry to be done by the District Magistrate, it appears that the matter did not proceed any further although information was being sought by the District Magistrate from the Tehsildar but it appears from the record that the ground taken by the authorities for not proceedings with order of the Information Commission is that the records pertaining to the matter are pending with the Additional District Magistrate, Udham Singh Nagar in a revision pertaining to revenue. Whether such a ground for not proceeding with the enquiry is at all tenable, this Court is not saying anything since this is not material at this stage before this Court. All the same, on this aspect, respondent no. 2 again sought information from the Public Information Officer and finally being dissatisfied he filed an appeal and consequently a second appeal before the Information Commission. In this second round of proceedings, the Information Commission has passed the present impugned order dated 30.7.2008 whereby a penalty has been imposed against the petitioner amounting to Rs. 5,000/- and it has also been ordered that the disciplinary enquiry be initiated against him. The case of the petitioner is that he was District Magistrate of Udham Singh Nagar only between 22.5.2007 to 16.6.2008 and the second appeal was filed before the Information Commission on 24.6.2008 and he has not received any notice from the Information Commission regarding the second appeal or any information about the same nor has he received the order dated 21.7.2008, referred to in the impugned order dated 30.7.2008. The order dated 21.7.2008 is in fact a show cause notice by which the petitioner had to give a reply. This order apparently was never served upon the petitioner. In fact, it 3 could not have been served upon the petitioner as the petitioner was not the District Magistrate of Udham Singh Nagar at the relevant time and was transferred on 16.6.2008. In fact, the petitioner was not even present in the proceedings dated 30.7.2008 when the impugned order was passed. This Court now, therefore, is only on the limited question as to whether the impugned order could have been passed without giving opportunity of hearing to the petitioner and the only answer to this question is that such an order could not have been passed without giving an opportunity of hearing to the petitioner. Apparently, the principle of natural justice and fair play has been violated in this case, as the opportunity of hearing was necessary inasmuch as not only the departmental proceedings are being initiated against the petitioner but also penalty has been imposed which has to be recovered from his salary. Therefore, the order dated 30.7.2008 effectively becomes an order in personam. For these reasons, on this limited question the writ petition is allowed. Order dated 30.7.2008 passed by the Information Commission, Uttarakhand is set aside. The Information Commission is directed to give a personal hearing to the petitioner and after giving personal hearing to the petitioner, the Information Commission may pass suitable orders in accordance with law. A statement has been made at the bar by Mr. K.P. Upadhyay, learned Additional Chief Standing Counsel that the order of the Information Commission regarding the penalty has already been complied with inasmuch as a sum of Rs. 5,000/- has been deposited. It is made clear that merely by depositing Rs. 5,000/- no prejudice shall be caused to the petitioner, if ultimately the Information Commission passes an order in favour of the petitioner – in other words, if the petitioner is exonerated. The learned Additional Chief Standing Counsel further undertakes that the petitioner shall cooperate 4 in the proceedings before the Information Commission and will not take any step to dilate the proceedings. (Sudhanshu Dhulia, J.) 26.6.2009 Avneet