IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 WP(C).No. 20570 of 2008(W) -------------------------- PETITIONER: ------------ S.RADHAMANI, JUNIOR SUPERINTENDENT, PAREEKSHA BHAVAN, THIRUVANANTHAPURAM, RESIDING AT TC 53/2459 (1), NEMOM, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARAIT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE PUBLIC INFORMATION OFFICER, (SECRETARY TO COMMISSIONER OF GOVT.EXAMINATIONS), PAREEKSHA BHAVAN, THIRUVANANTHAPURAM. 4. STATE INFORMATION COMMISSION, KERALA,, REPRESENTED BY ITS SECRETARY, PUNNAN ROAD, THIRUVANANTHAPURAM-9. BY GOVERNMENT PLEADER SMT. M.R. SREELATHA ADV. SRI.M.AJAY, SC, STATE INFORMATION COMMN FOR R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No. 20570 of 2008 -------------------------- Dated this the 16th July, 2008 J U D G M E N T The petitioner is working as Junior Superintendent in the Pareeksha Bhavan. One Mary Jacob approached the 4th respondent State Information Commission alleging that she had sent a complaint to the Public Information Officer, Pareeksha Bhavan –the 3rd respondent by registered post on 22.3.2007 which was acknowledged in the office of the 3rd respondent. Complainant received the acknowledgment card on 27.3.2007. It is alleged that there was inaction in the office of the 3rd respondent. Pursuant thereto Exhibit P2 was issued by the 4th respondent requiring the Public Information Officer, Pareeksha Bhavan to supply the information and also to submit a report as to why there is delay in the submission of the report. Exhibit P3 was submitted by the petitioner and another Junior Superintendent, wherein, it was affirmed that pursuant to the orders of the Secretary to W.P ( C) No. 20570 of 2008 2 the Commissioner for Government Examinations the Superintendents had closely examined the register containing details of the registered Tapals. But they were not able to locate the section where the application of Mary Jacob is claimed to have been received. In other words, she did not come across the registered letter sent by Smt.Mary Jacob. 2. The State Information Commission proceeded with the enquiry and thereupon the petitioner appeared before the Commission and submitted Exhibit P5 affidavit. According to the petitioner, she did not come across the letter in person. She affirmed that she was able to furnish the relevant information before the Commission with respect to the letter received from Smt. Mary Jacob only on getting the details of the Tapal sent by her including its date of receipt and registered letter number from the post office, in order to trace out the same and to ascertain the facts. She was shown the acknowledgment card which accompanied the registered letter and she accepted the signature on the reverse side of the acknowledgment card. W.P ( C) No. 20570 of 2008 3 3. Exhibit P6 memo of charges was issued by the Head of the Department of the petitioner essentially in relation to the alleged lapse on the part of the petitioner in not noting a letter which was received under the Right to Information Act. Exhibit P9 reply was given by the petitioner. In the meanwhile, petitioner also obtained Exhibit P7 letter from the Information Commission to the Secretary of the Pareeksha Bhavan alleging that the petitioner had admitted before the Commission that she had signed the acknowledgment card but the application was subsequently misplaced and lost irretrievably. Exhibit P7 further alleges the stand earlier taken by the Pareeksha Bhavan that the application was not received in the office is completely contrary to the stand now taken by the petitioner. Commission recommended that disciplinary action be taken against all those who were involved in this matter and furnish a compliance report before the Commission. This has been challenged in this writ petition. 4. I heard learned counsel for the petitioner Sri.M.Sreekumar and learned standing counsel for the W.P ( C) No. 20570 of 2008 4 Information Commission Sri.M.Ajay, and learned Senior Government Pleader Smt. M.R. Sreelatha. 5. One of the aspects which has been highlighted is whether the recommendation made by the State Information Commission for disciplinary action in terms of Section 20 (2) of the Right to Information Act is binding on the Head of the Department or Government in obliging them as it were to take disciplinary action as recommended by the Information Commission. Learned counsel for the petitioner submits that the recommendation made by the Information Commission would be in the nature of recommendation and cannot be treated as binding on the department. Learned standing counsel for the Information Commission submits that though it cannot be contended that the recommendation made under Section 20 (2) is completely binding on the Government or Head of the department as the case may be, such recommendation is obviously entitled to due respect and such recommendation cannot be ignored as such. I would have considered and decided this issue but, for the fact that W.P ( C) No. 20570 of 2008 5 it may not be necessary to do so in the facts and circumstances of the case. Exhibit P10 show cause notice issued by the Additional Director of Public Instruction shows that the Directorate of Public Instruction had decided to take disciplinary action against the petitioner at the departmental level. Petitioner had handled the application sent by Smt.Mary Jacob in a careless manner and even if Commission had not recommended any disciplinary action, such action would have been initiated against the petitioner at the departmental level since it is a grave issue, contends the Government Pleader. Petitioner has given a reply to Exhibit P10. In the circumstances, it seems that the Directorate of Public Instruction is proceeding with disciplinary action against the petitioner not because it perceives it to be obliged to do so on the basis of Exhibit P7. But it has independently taken a decision to the effect that the conduct of the petitioner apparently warrants departmental enquiry. It seems that the recommendation made by the Commission, in the circumstances, is only treated as material, which the W.P ( C) No. 20570 of 2008 6 Directorate of Public Instruction has considered as relevant for the purpose of deciding whether departmental enquiry should be initiated. 6. In my view, irrespective of the question as to whether the recommendation made by the Information Commission under Section 20 (2) of the Right to Information Act, 2005 is mandatory in the sense that Government or Head of the Department is obliged to accept the recommendation and necessarily initiate disciplinary action. Such recommendation definitely would be a relevant material for the Government or Head of the Department to take note of and to decide whether a departmental action is warranted. This is all what has been done in this case. I do not find any grounds to interdict the departmental action as such. 7. Learned counsel for the petitioner further submits that State Information Commission has concluded that the petitioner has confessed that she had received the application from Smt.Mary Jacob which was later misplaced. She contends that this is a wrong statement. W.P ( C) No. 20570 of 2008 7 She further contends that petitioner had only acknowledged the signature in the acknowledgment card. But she has nevertheless pleaded before the Information Commission that she did not come across the letter in person because the postal cover had been received in the Tapal Section. A statement in Exhibit P7 letter that the petitioner had confessed receipt of the letter from Mary Jacob is obviously not conclusive of the issues arising for consideration in the departmental proceedings that have been initiated against the petitioner. It is obviously open to the petitioner to demonstrate that though she had signed in the acknowledgment card she did not actually come across the letter. It is up to the disciplinary authority to appreciate the stand taken by the petitioner in this regard. 8. Learned counsel for the petitioner submits that the disciplinary authority has not decided whether an enquiry should be conducted against the petitioner. Exhibit P10 shows that what is proposed as penalty is only a minor penalty. Therefore, a enquiry is not mandatory. If the petitioner is desirous of an enquiry and makes a request in W.P ( C) No. 20570 of 2008 8 this regard, it shall be dealt with by the disciplinary authority and a separate order may be passed in this regard dealing with such request before passing a final order in the departmental proceedings initiated against the petitioner, In the circumstances, petitioner may, if so advised, make such a request along with the reply to Exhibit P10 within three weeks from today. Further proceedings pursuant to Exhibit P10 shall be proceeded with only after taking a decision on the question of enquiry, if the petitioner makes a request in that regard. Subject to the above, the writ petition is disposed of. (V.GIRI, JUDGE) ma W.P ( C) No. 20570 of 2008 9 W.P ( C) No. 20570 of 2008 10