IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7379 of 2009 Vijay Narayan Sao, Son of Late Tuk Narayan Sao, Resident of 24 A Ashok Puri, Khajpura, P.S.-Shastri Nagar, District-Patna. -Petitioner. VERSUS 1. The State Information Commission through the Chief Information Officer, Bihar, Suchana Bhawan, Bailey Road, Patna. 2. The Secretary, State Information Commission, Bihar, Bailey Road, Patna. 3. The Registrar, State Information Commission, Bihar, Bailey Road, Patna. 4. The Deputy Secretary cum Joint Registrar, State Information Commission, Bihar, Bailey Road, Patna. 5. The Bihar State Electricity Board through its Chairman, Vidyut Bhawan, Bailey Road, Patna. 6. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 7. The Finance Controller-I, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 8. The Information Officer-cum-Joint Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 9. The General Manager cum Chief Engineer, Bhagalpur Electric Supply Area Board, Bhagalpur. 10. The Deputy Director Personnel, Bhagalpur Electric Supply Area Electricity Board, Bhagalpur. -Respondents. ----------- For the Petitioner : Mr. Bajrangi Lall, Adv. For the State Information Commission : Mr. Lalit Kishore, AAG-III Mrs. Binita Singh, Adv. For the Bihar State Electricity Board : Mr. Anand Kumar Ojha, Adv. ------------ 02 06.07.2009 The petitioner was an Administrative Officer in the Bhagalpur Electric Supply Area of the Bihar State Electricity Board. He was designated as the Public Information Officer under the provisions of the Right to Information Act, 2005. It appears that an employee sought certain information while petitioner was working as such. The information was sought on 06.08.2007. It is not in dispute that on 04.09.2007 that is even before expiry of 30 days from the date - 2 - information was sought, petitioner was transferred and accordingly he ceased to be the Public Information Officer. It appears that another person was then designated as Public Information Officer in the Board in place of the petitioner. The person, who had sought information was not given due information and as such he filed an appeal in the department itself, which was again a dead letter. Having failed to get the information, he then filed a second appeal, as contemplated under Section 19 of the Right to Information Act. When the Second appeal proceedings pending before the State Commission notices were issued by the Commission in name of the petitioner designating him as the Public Information Officer-cum-General Manager-cum-Chief Engineer, Bhagalpur Electric Supply Area, Bhagalpur. As petitioner had long since been transferred, as petitioner was never the General Manager- cum-Chief Engineer but merely an Administrative Officer notices remain un-responded. Which has ultimately resulted in the penalty order, whereby petitioner was penalized by name a sum of Rs. 22,750/- and thus coerced to pay the said amount. Petitioner then made two applications. One to the State Information Commission for recall of the order, which was erroneously passed against him and secondly to the Bihar State Electricity Board for reimbursement, which was coerced to him to pay. As was usual, even though everyone now became aware that petitioner was not a Public Information Officer, whose conduct was being penalized. Yet the Commission and the Board refused to undo the injustice meted out to the petitioner, which has brought the petitioner to this Court. - 3 - Mr. Lalit Kishore, learned AAG-III appearing for the State Information Commission submits that Information Commission having passed the order of penalty became functus officio and they have no power to review. They could not recall the order passed earlier. There was no provision under the Right to Information Act (RTI Act) permitting the Commission to review its order. Learned counsel for the Bihar State Electricity Board, on the other hand, submits that the remedy of the petitioner was to get a refund from the Commission for a penalty wrongly imposed and paid. I have heard the matter and considered the same. With consent of parties, the writ petition is being disposed of at the stage of admission itself. First coming to the contention of the learned AAG-III with regard to the fact that under the RTI Act there is no power of review and that being so an order of penalty passed in terms of Section 20 of the said Act could not have been reviewed. In my considered view, the word “review” connotes two distinct actions, the one is procedural review and the other is substantive review. Procedural review is a power inherent in all authorities, Courts and Tribunals. It does not have to be conferred by any statute. It is a power to correct palpably erroneous orders passed on misapprehension of facts and circumstances. Whereas, the other being power of substantive review is review on merits on an error apparent on the fact of the record, for which statutory conferment of power is necessary. These distinctions are clearly brought about by the judgment of Apex Court in the case of Grindlays - 4 - Bank Limited Vs. Central Government Industrial Tribunal & Ors. Since reported in AIR 1981 Supreme Court 606 and the relevant part is to be found thereof and is quoted hereunder:- “…The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are under in S. 11. The answer to the question is, therefore, to be found in sub-s. (1) of S. 11 and not in sub-s. (3) of S. 11. Furthermore, different considerations arise on review. The expression „review‟ is used in two distinct senses, namely, (1) a procedural review which is either inherent or implied in a Court of Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershi‟s case held that no review lies on merits unless a statute specifically provides for it, obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal……” Here, the petitioner had not sought for review on merits. He - 5 - had appointed to the Commission that he having been transferred and ceased to be the Public Information Officer. Penalty could not have been at all imposed against him. As would be seen from the notice that was issued calling upon the petitioner to show cause against imposition of penalty by the State Information Commission, which is dated 1st July, 2008 (more than one year after petitioner had been transferred), the notice was addressed to the petitioner with wrong description of post held. Petitioner as noted above neither the General Manager nor the Chief Engineer, the notices thus remain un-responded, yet penalty was imposed. Petitioner thus sought a procedural correction that power was inherent in the Commission and it was fit case in which the Commission ought to have recalled its order of penalty, as imposed against the petitioner and notice the Board in that regards that is what was required to be done ex debito justitiae that not having been done. The petitioner has rightly made a grievance before this Court. So far as the Board is concerned, the plea is even stranger. The Board was in no of the things, as he was the Public Information Officer. The Board in stead of enquiring into his contention and exonerating the petitioner, who was no more in that office, should have reimbursed the penalty to the petitioner because petitioner was not working in his individual capacity. Even if he was the Public Information Officer, which was open to the Board to enquire into the conduct of the Public Information Officer and realized the same from him. If he was found to have committed any delinquency but surely Board was duty bound being the employer of the petitioner to reimburse - 6 - the petitioner of the penalty that was imposed on him. Thus, found I have no option but to quash the order, as contained in Annexure-8 dated 19.03.2009, of the State Information Commission as passed in Case No. 8472/08-09 (Madhusudan Dutta Vs. Public Information Officer-cum-General Manager-cum-Chief Engineer, Bhagalpur Electric Supply Area, Bhagalpur) and remit the matter for its fresh consideration immediately, in view of the observations and directions, as contained herein. The Board is under obligation to immediately convey of the Commission of the Public Information Officers with their name and designation of the concerned dispute in question. The writ petition is allowed. Trivedi/ (Navaniti Prasad Singh, J.)