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shows that the expression ‘shall’ appearing before ‘recommend’

has to be read and construed as ‘may’. There could be cases

where there is reasonable cause shown and the officer is able to

demonstrate that there was no persistent default on his part

either in receiving the application or furnishing the requested

information. In such circumstances, the law does not require

recommendation for disciplinary proceedings to be made. It is not

the legislative mandate that irrespective of the facts and

circumstances of a given case, whether reasonable cause is

shown or not, the Commission must recommend disciplinary

action merely because the application was not responded to

within 30 days. Every case has to be examined on its own facts.

We would hasten to add here that wherever reasonable cause is

not shown to the satisfaction of the Commission and the

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Commission is of the opinion that there is default in terms of the

Section it must send the recommendation for disciplinary action in

accordance with law to the concerned authority. In such

circumstances, it will have no choice but to send recommendatory

report. The burden of forming an opinion in accordance with the

provisions of Section 20(2) and principles of natural justice lies

upon the Commission.

31. We are of the considered opinion that the appellant had

shown that the default, if any on his part, was not without

reasonable cause or result of a persistent default on his part. On

the contrary, he had taken steps within his power and authority to

provide information to respondent No.2. It was for the department

concerned to react and provide the information asked for. In the

present case, some default itself is attributable to respondent

No.2 who did not even care to respond to the letter of the

department dated 11th April, 2007. The cumulative effect of the

above discussion is that we are unable to sustain the order passed

by the State Information Commission dated 26th February, 2008

and the judgment of the High Court under appeal. Both the

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judgments are e set aside and the appeal is allowed. We further

direct that the disciplinary action, if any, initiated by the

department against the appellant shall be withdrawn forthwith.

32. Further, we direct the State Information Commission to

decide the appeal filed by respondent No.2 before it on merits and

in accordance with law. It will also be open to the Commission to

hear the appellant and pass any orders as contemplated under

Section 20(2), in furtherance to the notice issued to the appellant.

However, in the facts and circumstances of the case, there shall

be no orders as to costs.

…………………………….,J.

[Swatanter Kumar]

…………………………….,J.

[Madan B. Lokur]

New Delhi;

December 13, 2012

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