Dismissed

K.Sivanandan v. the State of Kerala

Kerala HC25 Nov 2022WP(C)/10232/2012

Case brief

AI extract

What is this about?

The petitioner, Director of Fire and Rescue Services, challenged a fine imposed by the State Information Commission for delaying the furnishing of information. The Court held that the officer was liable as a designated authority and the Commission acted within its powers.

What did the court decide?

The writ petition was dismissed, and the fine imposed by the State Information Commission stands affirmed.

K.Sivanandan Vs the State of Kerala — RTI and Transparency | Kerala HC (2022)

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W.P.(C) No. 10232/2012

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 25^TH DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944

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WP(C) NO. 10232 OF 2012

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PETITIONER/S:

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K.SIVANANDAN

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AGED 54 YEARS S/O. K.KUNJAN, DIRECTOR(TECHNICAL), FIRE AND RESCUE SERVICE DEPARTMENT, HOUSING BOARD JUNCTION, THIRUVANANTHAPURAM.

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BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA SRI.T.V.VIJAYARAJAN

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RESPONDENT/S:

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1 THE STATE INFORMATION COMMISSION, KERALA, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-695 001.

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2 THE APPELLATE AUTHORITY PUBLIC INFORMATION OFFICER FIRE AND RESCUE SERVICE (HEAD QUARTERS), THIRUVANANTHAPURAM-695 001.

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3 SRI. A.SHAJAHAN PUBLIC INFORMATION OFFICER & SENIOR SUPERINTENDENT, FIRE AND RESCUE SERVICE DEPARTMENT, HOUSING BOARD JUNCTION, THIRUVANANTHAPURAM-695 001.

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4 SRI.JACKSON ROY SIVALAYAM, ISMAYIL ESTATE, KUTTAPAI ROAD, ERNAKULAM-682 035.

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5 DR. SIBI MATHEWS CHIEF INFORMATION COMMISSIONER (STATE PUBLIC INFORMATION OFFICER), KERALA, THIRUVANANTHAPURAM-695 001.

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6 THE COMMANDANT GENERAL FIRE AND RESCUE SERVICE, HEADQUARTERS, THIRUVANANTHAPURAM-695 001.

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BY ADVS.

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SRI.M.AJAY, SC, STATE INFORMATION COMMISSION SRI.C.A.CHACKO

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.11.2022, THE COURT ON 25.11.2022 DELIVERED THE FOLLOWING:

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W.P.(C) No. 10232/2012

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SHAJI P. CHALY, J.

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--------------------------------------------------------W.P.(C) No. 10232 of 2012

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--------------------------------------------------------Dated this the 25^th day of November, 2022.

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JUDGMENT

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The petitioner, who is the second opposite party in Complaint Petition No. 1333(I)/2011/SIC before the State Information Commission, Kerala, has filed this writ petition seeking to quash Exhibit P3 provisional order dated 20.01.2012 and Exhibit P5 final order dated 15.03.2012 passed by the Commission under Sections 20(1) and 20(2) of the Right to Information Act, 2005 ('Act, 2005' for short), whereby he was imposed with a fine of Rs.20,000/- for not furnishing the information to the 4^th respondent namely one Jackson Roy and for other consequential reliefs.

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Brief material facts for the disposal of the writ petition are as follows:

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The petitioner is the Director of Fire and Rescue Services, Thiruvananthapuram. The third respondent namely Sri. A. Shajahan is the Public Information Officer attached to the said office. The second respondent is the appellate authority of the Fire and Rescue Services having its Headquarters at Thiruvananthapuram.

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The 4^th respondent—Sri. Jackson Roy, submitted an application under the Act, 2005 seeking certain information

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regarding the buildings in the State having a height of more than 15 meters, before the Public Information Officer—respondent No.3. According to the writ petitioner, since no information was received within the time stipulated under the Act, 2005, the 4^th respondent approached the State Information Commission—respondent No.1. Thereupon, the Public Information Officer—third respondent, submitted a report dated 16.09.2011 before the State Information Commission stating that the 4^th respondent, the complainant, had visited the office of the Commandant General, Fire and Rescue Services on 06.08.2011 and perused the files and taken copies of the relevant records.

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It is further pointed out that the Public Information Officer had assured that he was prepared to furnish copies of whatever records the 4^th respondent wanted. Later, on 04.10.2011, the complainant made another complaint before the State Information Commission that the documents sought by him were not available to him. In the said complaint, it was alleged that on 05.08.2011, he went to the office of the Fire and Rescue Services and got some of the documents and that even though he waited there from 10.30 a.m to 5.30 pm on that day, he was not given copies of the rest of the documents or permitted to peruse the same.

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On receipt of the above complaint, the State Information

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Commission has issued notice to respondents 2 and 3 i.e., the appellate authority and the Public Information Officer. According to the petitioner, the third respondent filed an affidavit before the Information Commission stating that since the information sought for by the 4^th respondent relates to the technical information about the ‘No Objection Certificate’, the file was submitted to the Director (Technical) on 06.07.2011.

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It is also stated therein that as per Section 5(5) of the Act, 2005, the Director (Technical) is the person who has to deal with the file and that since the file was not returned, three supplementary files were submitted to the Director (Technical) on 26.07.2011, 06.08.2011 and 22.08.2011 and those files were also not returned so far. It was also submitted before the Commission that even though notice was given by the appellate authority— second respondent to the petitioner herein about the posting of the case, he has not cared to appear before the Commission.

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The contention advanced by the petitioner is that the statements made in the affidavit filed by the third respondent Public Information Officer, are not correct. It is further pointed out that the third respondent has submitted relevant files to the petitioner on 06.07.2011 seeking his opinion regarding the issuance of information to the 4^th respondent under the Act, 2005. It seems, in

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that file, the petitioner has noted that ‘Public Information Officer will answer the question’. According to the petitioner, thereafter, the file was not circulated to the petitioner and other supplementary files dated 26.07.2011, 06.08.2011 and 22.08.2011 were also not submitted before the petitioner; and therefore, according to the petitioner, the statement of the third respondent Public Information Officer is not correct.

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In the aforesaid background, it is contended that relying upon the affidavit of the third respondent, the State Information Commission issued summons to the petitioner and he appeared before the Commission on 07.12.2011 and explained the real facts and circumstances of the case. It is further submitted that without taking into account the explanation of the petitioner directly, the Commission passed Exhibit P3 provisional order dated 20.01.2012 calling for the explanation of the petitioner as to why action should not be initiated against him under Sections 20(1) and (2) of the Act, 2005.

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It is further pointed out that even though Exhibit P4 explanation was submitted, the State Information Commission, without taking into account the true facts and circumstances of the case, has passed Exhibit P5 final order dated 15.03.2012 imposing a fine of Rs.20,000/- against the petitioner after holding that the

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petitioner is also responsible for the delay in furnishing the information,. It is, thus, challenging the legality and correctness of the Exhibit P3 provisional order and Exhibit P5 final order, this writ petition is filed.

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The State Information Commission has filed a detailed counter affidavit refuting the allegations and the claims and demands raised by the petitioner and justifying its action of imposing fine exercising the power conferred under Section 20 of the Act, 2005. Among other contentions, it is submitted that on 06.07.2011, the 4^th respondent addressed a complaint to the first respondent Commission stating that he had submitted Exhibit R- 1(a) application dated 20.05.2011 under the Act, 2005 consisting of 13 questions and waited for about 30 days. It is further pointed out that later he was required to go in person to the office of the public authority to take down the information and to pay costs, if necessary, and take copies of the information required.

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The sum and substance of the contention advanced by the 4^th respondent is that the attempt of the public authority was to delay the information sought for. That apart, it is contended that the first Appellate Authority was also informed about the inaction on the part of the public authority. The Commission took up the said complaint as a Complaint Petition under Section 18 of the Act,

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2005 and registered the same as C.P. 1005(4)/2011 and issued notice dated 06.09.2011 to the third respondent Public Information Officer to file a report regarding the allegations raised in the said complaint.

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The third respondent has filed a report stating that the information was taken down by the 4^th respondent from the office of the Commandant General, Fire and Rescue Services on 06.08. 2011 and further that if anything more is required, that would be provided to the 4^th respondent. Thereafter, the 4^th respondent filed Exhibit R-1(f) complaint dated 12.10.2011 before the Commission stating that he is yet to get the information requested by him. It was complained that instead of providing information, the third respondent was harassing the 4^th respondent by requiring his personal presence to collect the information requested.

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It was also pointed out that he had appeared before the appellate authority on 05.08.2011 and he was provided with certain copies of a few documents. But, in spite of waiting from 10.30 am to 4.30 p.m., the entire information was not furnished to him. Thereupon, the first respondent Commission registered a complaint as C.P. No. 1333(1)/2011/SIC and closed further action in the earlier complaint, CP No. 1005(4)/2011.

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Thereupon, notice was issued to the Public Information

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Officer as well as the appellate authority, respondent Nos.2 and 3 respectively, to appear on 16.11.2011 for hearing on the allegations. On the said date, the Public Information Officer appeared and filed an affidavit stating that as the petitioner, who was the Director (Technical), was in charge of the subject, the request was put up to him on 06.07.2011 and since the files were not returned to the third respondent, the third respondent initiated supplementary files on 26.07.2011, 06.08.2011 and 22.08.2011 requesting for an early return of the files; but, the petitioner did not comply with the request.

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The third respondent has also admitted in Exhibit R-1(g) affidavit that the time allowed for furnishing the information requested had expired. It seems, the third respondent produced relevant records for the perusal of the Commission. He also produced Exhibit R1(h), demi official letter No. G1-6922/11 issued by the appellate authority—second respondent to the petitioner requiring him to attend the hearing before the Commission on 16.11.2011 with the concerned files. Hence, Exhibits R-1(i) and R- 1(j) supplementary note files dated 05.08.2011 and 04.10.2011 respectively were also produced. It was after considering those materials and the submissions made by the third and fourth respondents that Exhibit P3 provisional order was issued by the first

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respondent on 17.01.2012.

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In Exhibit P3, the Commission has clearly found that the request for information made by the 4^th respondent relating to the technical matters were submitted by the third respondent to the petitioner, since those queries relate to the information dealt with by him in his capacity as Director (Technical). The Commission has also found that it is clear from the note files that relevant files were put up to the petitioner to approve the reply to be furnished to the petitioner. It is also clear that on 12.07.2011, the files were returned to the third respondent Public Information Officer to answer the question.

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On 13.07.2011, a draft reply was put up by the third respondent to the appellate authority, who is the Commandant General of the Fire and Rescue Services. The Commission also found that on the same day, the Commandant General had forwarded the files to the petitioner for improving the draft reply prepared with due regard to the Hand Book of Standing Orders of the Department. It was also found that it is clear from Exhibits R- 1(i) and R-1(j) that due to the failure of the petitioner to return the files for furnishing the information, supplementary notes had been submitted to him.

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However, the petitioner did not part with the files. Even

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the instructions in Exhibit R-1(g) by the second respondent, a superior officer, seems to have evoked no response from the petitioner. Therefore, it is submitted that Section 5(5) of the Act, 2005 provides that any officer, whose assistance is sought for by the State Public Information Officer for providing information to a requester for an information, will be deemed to be State Public Information Officer, liabe for imposition of penalties under Section 20 of the Act, if he fails to render assistance sought for. Therefore, the contention advanced by the Commissioner is that it was in the aforesaid background that the Commission required the petitioner as per Exhibit P3 provisional order to show cause as to why he should not be penalized under Section 20(1) of the Act, 2005 for the failure to provide information within the time stipulated under the Act, 2005.

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The petitioner has submitted Exhibit P4 reply stating that the third respondent Public Information Officer ought to have collected information requested by the 4^th respondent and furnished it to him, rather than putting up the files to him.

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It is further contended that the third respondent deliberately sent the files to him in a routine manner, instead of furnishing a reply to the 4^th respondent and therefore, he requested to exonerate him from the penal consequences. It is also evident

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that the third respondent has also filed a detailed reply justifying the stand adopted by him. However, the Commission has found that the third respondent as well as the petitioner are responsible for not providing information to the 4^th respondent/complainant within the time provided under the Act, 2005 and accordingly, fine of Rs.20,000/- and Rs.2000/- respectively are imposed against the petitioner and the third respondent respectively.

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A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition and also refuting the allegations made in the counter affidavit filed by the Commission.

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I have heard the learned counsel for the petitioner Sri. V.A. Muhammed, Sri. M. Ajay for the State Information Commission, learned senior Government Pleader Sri Joby Joseph for the State officials and Sri. C.A. Chacko for the 4^th respondent/complainant before the Commission, and perused the pleadings and material on record.

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The sole question that emerges for consideration is whether any interference is required to Exhibit P3 provisional order and Exhibit P5 final order. The deliberations made above would make it clear that the State Information Commission has passed the orders impugned after verifying the files and on the third respondent Public Information Officer filing an affidavit to the effect

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that necessary communications were forwarded to the petitioner for providing information, since he is the authority to furnish information sought for by the 4^th respondent.

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The Commission, after perusing the files and supplementary files, have come across the notes put up and was satisfied that the delay had occurred substantially due to the failure on the part of the petitioner in providing information or forwarding the files to the third respondent Public Information Officer to furnish the details sought for by the 4^th respondent.

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The paramount contention advanced by the petitioner is that the petitioner is not a public Information Officer in the office of the Fire and Rescue Services and therefore, he was not responsible to provide information sought for by the 4^th respondent. It is further contended that the application under the Act, 2005 was submitted by the 4^th respondent before the third respondent Public Information Officer and when the matter was brought before the petitioner by the third respondent, he did not cause any delay in supplying the information.

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It is further pointed out that the third respondent is the person responsible, especially due to the fact that as per letter dated 22.06.2011, the third respondent has directed the 4^th respondent/complainant to take down the copies from the office and

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at that point of time, the third respondent had no objection in supplying the copies; however, when the second complaint was filed by the 4^th respondent, an affidavit was filed by the third respondent before the Commission without any truth in the same. It is further pointed out that the Commission did not direct the petitioner to submit any explanation or an affidavit in writing and the petitioner was even willing to submit an affidavit before the Commission on oath.

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The sum and substance of the contention is that since the petitioner was not directed to file any affidavit, he did not give such written explanation. It is also the contention of the petitioner that in Exhibit P3 provisional order, the petitioner was directed to submit his explanation as to why the provisional decision shall not be affirmed and even though a detailed explanation was offered, it was not considered by the Commission.

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It is further contended that the petitioner apprehends that the Public Information Commission issued the impugned order because of the personal grudge maintained by him and therefore, the impugned order is mala fide in nature. Other contentions are also raised with respect to the failure on the part of the Commission informing the dates of the posting etc.

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On the other hand, the learned counsel appearing for the

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Commission submitted that the petitioner has not raised any ill will nurtured by the Commission against the petitioner in the explanation submitted against Exhibit P3 provisional order and the contentions so advanced in the writ petition is only an afterthought. Therefore, it is submitted that the Commission has passed the order imposing the fine on realising the fact that the petitioner has sat over the file which caused the delay. The subject matter of the issue revolves around Section 5 of the Act, 2005. This I say because, the petitioner has a contention that he is not the Public Information Officer in the Fire and Rescue Department and therefore, he is not responsible for any delay in order to proceed against him under Section 20 of the Act, 2005.

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Section 5 deals with ‘the designation of Public Information Officers’ and it has got various regulatory methods with respect to the appointment of the Public Information Officers and the assistance to be made by the officers so as to provide information to the persons who make requests for information. However, subSection (5) makes it clear that any officer, whose assistance has been sought under sub-section (4), shall render all assistance to the State Public Information Officer seeking his or her assistance and for the purposes of any contravention of the provisions of the Act, such other officer shall be treated as a State Public Information

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Officer, insofar as the State is concerned. Sub-Section (4) of Section 5 enables the State Public Information Officer, to seek the assistance of any other officer as he or she considers it necessary for the proper discharge of his or her duties. It is an admitted fact that the third respondent State Public Information Officer has forwarded necessary communication to the petitioner to provide information being the Director (Technical) who is in possession of the files.

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It is also clear that supplementary files were forwarded to the petitioner by the third respondent since there was delay. Moreover, when the appeal was filed before the second respondent, who is the superior authority to the petitioner, he has also made necessary efforts to see that the information is furnished by the petitioner. In spite of the aforesaid efforts, no information was furnished and it was based upon the said factual background that the complainant has filed a complaint before the State Information Commission, invoking the right conferred under Section 20 of the Act, 2005.

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Section 20 deals with ‘penalties’ and whenever, the State Information Commission, at the time of deciding any complaint, is of the opinion that the Public Information Officer, without any reasonable cause, refused to furnish information, it is duty bound

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to impose a penalty of Rs.250/- each day till information is furnished so; however, the total amount of such penalty shall not exceed twenty-five thousand rupees.

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Even though a contention is raised by the petitioner that he is not a party to the complaint, but has only issued a provisional order and therefore, the proceedings instituted before the State Information Commission was not in accordance with law, I am unable to agree with the same for the basic reason that the State Information Commission shall give a reasonable opportunity to a person before any penalty is imposed on him. It was accordingly that Exhibit P3 show cause notice/provisional order was passed. It is quite clear and evident that the State Information Commission has exercised the powers conferred under Section 20 of the Act, 2005 after verifying the entire files leading to the issue and giving opportunity to the parties alone the final order was passed.

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It is also clear and evident that to the provisional order/show cause notice, the petitioner has submitted a detailed reply, in which he did not make any personal allegations against the Commission. However, in the writ petition. he has made an allegation that the State Information Commission i.e., Dr. Siby Mathews, had a grudge with the petitioner and in order to substantiate the same, he has also produced Exhibits P6, P7 and

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P8; certain documents with respect to the vehicle used by Dr. Siby Mathews as an officer of the fire and rescue department and also regarding the use of the vehicle attached to the office of the Commandant General and the amount paid towards use etc.

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It may be true, such an incident might have occurred, thus, leading to the payment of the amount for the use of the vehicle by the Public Information Officer. But, fact remains, the petitioner did not have a case of that nature, when he filed an explanation to the provisional order/show cause notice, and sought recusal of the Information Commission. Moreover, the materials on record show that the order was passed after providing the fullest opportunity to the petitioner to participate in the proceedings.

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Therefore, I am of the view that the State Information Commission passed the order, taking into account all attendant aspects on the basis of the facts available, the affidavit filed by the Public Information Officer and the files produced before the said authority. Therefore, it cannot be said that there is any illegality, mala fides or any other legal infirmities in the order passed by the Commission.

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Further, I find that once it is found that there was wilful delay on the part of the officer, a minimum fine of Rs.250/- is to be imposed till the information is given in the application. Taking into

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consideration the gamut of the issue, I do not think, the petitioner has made out any case of arbitrariness or illegality or any other legal infirmities, justifying interference in a proceeding under Article 226 of the Constitution of India.

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Needless to say, writ petition fails and accordingly, it is dismissed.

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SHAJI P. CHALY, JUDGE.

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APPENDIX

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PETITIONER’S EXHIBITS:

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EXT. P1	TRUE COPY OF THE APPLICATION DATED 27.06.2011 OF THE 4TH RESPONDENT.
EXT.P2	TRUE COPY OF THE NOTES NO.G1-6922/11.
EXT.P3	TRUE COPY OF THE LETTER NO.11501/SIC-GEN. 4/2011 DATED 20.01.2012 ALONG WITH ORDER IN C.P. NO.1333(1)/2011/SIC OF THE STATE INFORMATION COMMISSION.
EXT.P4	TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 27.01.2012.
EXT.P5	TRUE COPY OF THE LETTER NO.11501/SIC-GEN.4/2011 DATED 15.03.2012 ALONG WITH ORDER IN C.P. NO.1333(1)/2011/SIC OF THE STATE INFORMATION COMMISSION DATED 14.03.2012.
EXT.P6	TRUE COPY OF THE COMPLAINT OF THE PETITIONER TO THE GOVERNMENT DATED 17.02.2011.
EXT.P7	TRUE COPY OF THE REPORT TO THE DIRECTOR DATED 24.02.2011.
EXT.P8	TRUE COPY OF THE CHELAN DATED 26.02.2011

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RESPONDENTS’ EXHIBITS:

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EXT.R1(a)	TRUE COPY OF THE REQUEST FOR INFORMATION MADE BY THE FOURTH RESPONDENT BEFORE THE THIRD RESPONDENT DATED 20.05.2011.
EXT.R1(b)	TRUE COPY OF THE LETTER NO.G1-5297/11 DATED 22.06.11 ISSUED BY THE THIRD RESPONDENT TO THE FOURTH RESPONDENT.
EXT.R1(c)	TRUE COPY OF THE FIRST APPEAL FILED BY THE FOURTH RESPONDENT UNDER S.19(1) OF THE RIGHT TO INFORMATION ACT DATED 06.07.2011.
EXT.R1(d)	TRUE COPY OF THE COMPLAINT FILED BY THE FOURTH RESPONDENT BEFORE THE FIRST RESPONDENT COMMISSION DATED 06.07.2011.
EXT.R1(e)	TRUE COPY OF THE REPORT SUBMITTED BY THE THIRD RESPONDENT BEFORE THE FIRST RESPONDENT DATED 16.09.2011.
EXT.R1(f)	TRUE COPY OF THE COMPLAINT FILED BY THE FOURTH RESPONDENT BEFORE THE FIRST RESPONDENT DATED 12.10.2011.
EXT.R1(g)	TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE THIRD RESPONDENT DATED 16.11.2011.
EXT.R1(h)	TRUE COPY OF THE D.O. LETTER NO.G1-6922/11 DATED 15.11.2011 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER.
EXT.R1(i)	TRUE COPY OF THE SUPPLEMENTARY NOTE FILE NO.2 IN FILE NO. G1-6923/11 DATED 05.08.2011.
EXT.R1(j)	TRUE COPY OF THE NOTE FILE IN G1-6923/11 DATED 04.10.2011.

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EXT.R1(k) TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 23.02.2012. EXT.R1(l) TRUE COPY OF THE REPLY FILED BY THE THIRD RESPONDENT BEFORE THE FIRST RESPONDENT ON 02.03.2012.

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True Copy

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/PS To Judge. /

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K.Sivanandan v. the State of Kerala

Case brief

What is this about?

What did the court decide?

K.Sivanandan v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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