mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1460 OF 2009 NITIN PANDURANG KALE .. PETITIONER Vs. THE STATE OF MAHARASHTRA & ORS. RESPONDENTS Mr. A. A. Kumbhakoni, Sr. Advocate a/w Mr. J. G. Reddy for the petitioner Mr. N. Pandit, AGP for R-1 & 2. Mr. S. D. Dighe for R-3. CORAM: SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR, JJ. DATED: 21/11/2009 P.C. Rule. Respondents waive service. By consent of the parties taken up for hearing forthwith. 1. The petitioner is working as Assistant Registrar, Co-operative Societies, Slum Rehabilitation Authority (“SRA” for convenience) which is appointed as planning authority for implementation of the slum rehabilitation projects. Respondent 1 is the State of Maharashtra. Respondent 2 is the State Information Commissioner appointed under the Right to Information Act, 2005 (“the said Act” for short) who has passed the impugned order on 15/12/08 on the appeal filed by the 3rd respondent. The petitioner is seeking quashing of the impugned order to the extent of imposition of costs of Rs.25,000/- upon the petitioner. 2. It is necessary to give the gist of the petitioner’s case. According to the petitioner the Chief Executive Officer of SRA appointed him as Public Information Officer under the said Act on 17/7/07. The 3rd respondent made an application to him and sought information about circulars, drafts notices etc. of the Chief Executive Officer SRA. Relevant portion of the said application reads as under: “Please furnish information of certified Xerox copies of all the documents retained and maintained by you regarding various circulars, drafts, notices, notes, guidelines etc. for smooth routine working of their day to day working”. 3. According to the petitioner after receiving the said application the petitioner by letter dated 8/8/07 informed the 3rd respondent that the information sought by him relates to the Administrative Department of SRA and, therefore, he may approach the Administrative Department. Being aggrieved by the said order the 3rd respondent filed an appeal under Section 19(1) of the said Act to the appellate authority. According to the petitioner by letter dated 20/9/07 the appellate authority informed the 3rd respondent the date of hearing of his appeal i.e. 1/10/07. He appeared before the appellate authority. By order dated 5/10/09 the 1st appellate authority directed the petitioner that the 3rd respondent be provided guidelines published by the SRA along with all the circulars which were not part of the said guidelines. 4. It is the case of the petitioner that by letter dated 4/2/08 the petitioner requested the Administrative Department and informed it about the order passed by the appellate authority and requested it to provide all circulars and guidelines. It is the case of the petitioner that thereafter by letter dated 15/2/08 the petitioner requested the 3rd respondent to obtain the said guidelines book published by the SRA free of cost from the Administrative Department of the SRA. It was also communicated to the 3rd respondent by the Assistant Registrar, Cooperative Society, SRA that if he has not received the said information then he can come and accept the said booklet of information from the Administrative Department of the SRA. 5. The 3rd respondent filed a second appeal before the 2nd respondent challenging order dated 5/10/07. 6. By notice dated 17/11/08 the office of the 2nd respondent called upon the petitioner to remain present before him on 21/11/08 at 12-20 p.m. for hearing of the appeal filed by the 3rd respondent. According to the petitioner his reply was ready, however, he could not file it. According to the petitioner in view of the terrorist attack on 26/11/08 at CST Station, Nariman Point as well as at Taj Hotel in Mumbai, the atmosphere was tense. Due to the prevailing disturbed situation he could not remain present on 28/11/08 in the office of the second appellate authority which is situated near Mantralaya. 7. The second appellate authority by the impugned order disposed of the appeal in the absence of the petitioner. The second appellate authority observed that at the hearing before the first appellate authority the petitioner had agreed to furnish the necessary information. However, he did not furnish the same and, therefore, the 3rd respondent was required to file second appeal. The second appellate authority observed that this is a very serious lapse. He, therefore, gave a direction that the required information be furnished to the 3rd respondent within 10 days from the date of the order and he imposed the costs as fine of Rs.25,000/- on the petitioner. The said amount was directed to be recovered by deducting three equal monthly installments from the petitioner’s salary. 8. It is pertinent to note that even after this order the required information was supplied by the petitioner after one month. Admittedly when the matter was being heard by the first appellate authority, the petitioner had agreed to give the information. If that was so the petitioner ought to have complied with the direction immediately. What is more distressing to note is that even after the second appellate authority gave the direction, the petitioner supplied the information one month thereafter and just before filing of the present petition. 9. We have heard Mr. Kumbhakoni, learned Senior Counsel appearing for the petitioner at some length. Mr. Kumbhakoni drew our attention to proviso to section 20(1) of the said Act under which the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him. Admittedly in this case before the penalty was imposed the petitioner was not heard because he was not present. Mr. Kumbhakoni submitted that the petitioner could not remain present because just two days before the date of hearing there was terrorist attack on Bombay and the office of the second appellate authority is situate near the places where the terrorist attacks had taken place. He submitted that considering the disturbed condition of Bombay during the relevant period the petitioner had sufficient cause not to remain present before the second appellate authority. He submitted that because the petitioner was not present he could not point out relevant circumstances to the second appellate authority and in view of the proviso to Section 20(1) of the said Act, this court should take a kind view of the matter. 10. Mr. Kumbhakoni further submitted that the correspondence of the petitioner which is annexed to the petition indicates that there was no malafide intention. He submitted that the letter calling for information was also very vague and this court should take note of these circumstances and set aside the order imposing costs in the nature of fine. 11. Mr. Pandit, learned AGP on the other hand submitted that no leniency be shown to the petitioner because of his conduct, which needs to be deprecated. He submitted that after having agreed to give information the petitioner should have complied with that order. The fact that he did not give information even after the second appellate authority passed his order indicates the casual and careless approach of the petitioner. 12. Mr. Dighe, learned counsel for the 3rd respondent submitted that the incident in question took place on 26/11/08, the hearing was on 28/11/09 and, therefore, the petitioner could have very well remained present before the second appellate authority. In any case he could have communicated that he was unable to remain present in view of the disturbance in Bombay. He did not do so. Learned counsel submitted that, therefore, the excuse given by him is not proper and acceptable. Learned counsel further submitted that the conduct of the petitioner also needs to be deprecated. He submitted that no leniency be shown to the petitioner. 13. Having perused the relevant orders and the correspondence of the petitioner and after hearing learned counsel for the parties, we are of the opinion that once having agreed to supply the information, the petitioner should have made it available to the 3rd respondent. It was open to the petitioner to say that the information sought for was vague and he could not have supplied it but if he has shown his readiness to furnish the information and on that basis the order was passed, he should have complied with the order. He did not comply with the first appellate authority’s order, even after the second appellate authority’s order. He supplied the information late just a few days before filing of this petition. 14. We are not happy about this conduct of the petitioner. At the same time, we are of the opinion that the costs in the nature of fine of Rs.25,000/- are rather excessive. Undoubtedly the proviso to section 20(1) mandates the authority to hear the person concerned before imposing any penalty. Therefore, in the interest of justice, the second appellate authority should have waited for the petitioner or should not have given him one more chance. 15. Normally, we could have remanded the matter to the second appellate authority but having regard to the conduct of the petitioner, we do not want to remand the matter to the second appellate authority. We feel that interest of justice would be served, if the penalty in the nature of fine is reduced to Rs.5,000/- as costs to be given to the 3rd respondent. However a warning needs to be given to the petitioner and it must be recorded in the service record of the petitioner. We have shown this leniency because of the peculiar facts of the case and because the impugned order is ex parte. Morever this appears to be first time that the petitioner has behaved in this manner. The petitioner must learn his lesson. He must understand the onerous responsibility which lies on his shoulders. This, however, should not be interpreted by him to mean that, we have in any way absolved him of the default. Besides the information sought for has already been supplied to the 3rd respondent. 16. In the circumstances, we pass the following order: The order directing the payment of costs of Rs.25,000/- as fine, is modified. Instead the petitioner is directed to pay Rs. 5000/- as costs to the 3rd respondent. The amount be paid to the 3rd respondent within a period of two weeks from today. We direct that a warning letter be issued to the petitioner for the default committed by him and the said warning be entered in his service record. With only this modification the impugned order is maintained. Petition is disposed of with this modification. (Smt. Ranjana Desai, J.) (Smt. Mridula Bhatkar, J.)