K.P. Jayarajan v. State Information Commission, Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 5TH DAY OF OCTOBER 2016/13TH ASWINA, 1938** **WP(C).No. 26701 of 2008 (D) ----------------------------** **PETITIONER(S): -------------** **K.P.JAYARAJAN, CONTROLLER OF EXAMINATIONS, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR UNIVERSITY CAMPUS P.O, KANNUR-670 567.** **BY ADV. SRI.T.A.SHAJI** **RESPONDENT(S):** **--------------** **1. THE STATE INFORMATION COMMISSION, KERALA, THIRUVANANTHAPURAM, PIN-695 039, REPRESENTED BY ITS SECRETARY.** **2. THE PUBLIC INFORMATION OFFICER UNDER THE RIGHT TO INFORMATION ACT & JOINT REGISTRAR, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, UNIVERSITY CAMPUS.P.O, KANNUR-670 567.** **3. BABU CHATHOTH, PRESIDENT, KANNUR UNIVERSITY STAFF ORGANISATION, KANNUR UNIVERSITY, STAFF ORGANISATION, KANNUR UNIVERSITY CAMPUS.P.O,, KANNUR-670 567.** **R1 BY ADV. SRI.M.AJAY, SC R2 BY SRI.M.SASEENDRAN, SC, KANNUR UNIVERSITY ADV. SRI.KAUSER EDAPPAGATH R2 & R3 BY ADV. SRI.VIJU THOMAS R3 BY ADVS. SRI.K.RAKESH ROSHAN SMT.THUSHARA V.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 26701 of 2008 (D)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE APPLICATION DTD.26.5.2007 SUBMITTED BY THE 3RD RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE PRESS NOTE DTD.20.9.2006 GIVEN BY THE 2ND RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE U.O.NOTE NO.EG.I-I/EXAM/GEN/2007 DTD.16.7.2007.** - **EXHIBIT P4 TRUE COPY OF THE LETTER DTD.20.6.2007 SUBMITTED BY THE 3RD RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE U.O.NOTE NO.EG.II/16686/07/R1 ACT DTD.1.10.2007.** - **EXHIBIT P6 TRUE COPY OF THE COMPLAINT DTD.25.10.2007 FILED BY THE 3RD RESPONDENT BEFORE THE REGISTRAR.** - **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DTD.22.4.2008 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P8 TRUE COPY OF THE NOTICE DTD.22.8.2008 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE ORDER IN APPEAL NO.729/2007/SIC DTD.19.5.2008.** **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** ## **//TRUE COPY//** ## **P.S.TO JUDGE** **Msv/** ## **P.V.ASHA, J.** ## **W.P.(C) No.26701 of 2008** ## **Dated this the 5[th] day of October, 2016** ## **JUDGMENT** The petitioner who is the Controller of Examinations, Kannur University, is challenging Ext.P9 order of the State Information Commission by which personal appearance of the petitioner on 3.9.2008 is directed, on the ground that being deemed Information Officer, he violated the provisions contained in section 7(1) of the Right to Information Act, 2005, (hereinafter referred to as 'the Act'), which is punishable under section 20 of the Act. He was directed to appear and show cause against the proceedings for punishment. 2. 3[rd] respondent filed Ext.P1 application under the Act in his capacity as President of Kannur University Staff Organisation before the Registrar and Public Information Officer of the University, who is the 2[nd] respondent herein seeking for the following information: _1. The copy of the U.O.Note from EG.I section given to Tapal/Despatch section for making thorough search for the confirmation of the despatch of the missed certificates._ _2. The order of the authorities to issue such a U.O.Note to the despatch section (including note file). 3. The copy of the note file reporting the matter of loss of the said certificates & orders of the ViceChancellor/Pro vice-Chancellor or any other officer on this matter._ _4. The enquiry report of the Pro Vice-Chancellor on this matter as ordered by the Vice-Chancellor. 5. Copy of the all note files originated in the section regarding the missing or misplacing of said certificates. 6. Copy of the order of the Vice-Chancellor_ W.P.(C) No.26701 of 2008 :2: _appointing the Pro vice-Chancellor as enquiry officer to enquire the matter._ 3. The University had on 20.9.2006 released a press note informing that certain adverse publicity was being effected alleging loss of certificates from the University by way of news items published in Malayala Manorama daily on 12.9.2006 without any factual basis on account of which students were put in embarrassment. The petitioner had with reference to U.O.note dated 18.6.2007 furnished a reply saying that the EG I seat has not issued any U.O.note as alleged by the applicant, to the Tapal section of the exam branch so as to make any search in the section as to whether 17 degree certificates were despatched or not. The U.O.note reads as follows: _With reference to the above, this is to inform that EG.I section has not seen issued a U.O.Note as alleged by the applicant to Tapal/Despatch Section of Exam Branch for making a thorough search in the Tapal/Despatch Section to ensure whether 17 degree certificates were despatched or not, to the applicants who had applied for the certificates._ 4. The petitioner further points out that the 3[rd] respondent himself had as per letter dated 20.6.2007 requested for a rectification saying that the U.O.note was required from E.G.II section and not EG I section. He had requested for the same from EG.I section. The information sought for in the letter dated 26.5.2007 was furnished accordingly. The petitioner submits that on 1.10.2007 he had submitted a U.O.note seeking clarification from the Registrar as to W.P.(C) No.26701 of 2008 :3: whether it is necessary to give a further reply on an information which was already sought, pointing out that the Public Information Officer had already informed that there was no U.O. note issued from the section. The 3[rd] respondent filed Ext.P6 appeal dated 25.10.2007 before the Registrar of the University. On request of the Registrar petitioner had issued Ext.P7 letter on 22.4.2008 informing that there is no file existing in either of the sections and there was no incident relating to missing of certificates. It was a case where the petitioner could not have given any answer to Ext.P1 even assuming that it was sought from EG.II section. 5. While so the 3[rd] respondent filed a second appeal before the Information Commission. The Vice chancellor, Registrar and Pro-vice chancellor were summoned. Apparently on the basis of an affidavit of the 2[nd] respondent the 1[st] respondent ordered personal appearance of petitioner, even without issuing any notice to him, saying that he was the deemed Information Officer. The writ petition is filed at this stage. Learned counsel for the petitioner points out that the 3[rd] respondent approached the University in his capacity as the President of the Kannur University Staff Organisation. Under section 3(2) of the Right to Information Act, information can be sought only by a citizen. However it is seen that though the address given in the application W.P.(C) No.26701 of 2008 :4: was of the President of the staff organisation, application was seen filed individually in the name of 3[rd] respondent. However the contention raised by the petitioner relying on the judgment of this court in _**Louis Mathew v. State Information Commissioner** [2016_ _(1) KLT 464]_ will apply to the circumstances of the case, since the case of the petitioner is that such information which is available on record alone need be furnished by the authority and therefore nonfurnishing of an information on the basis of files which were not available will not invite action under section 20 of the Information Act. 6. I heard the learned counsel for the petitioner, the learned standing counsel appearing for the first respondent and the University. Even though notice was served on the 3[rd] respondent, there is no appearance. 7. The learned standing counsel for the 1[st] respondent pointed out that Ext.P9 is only a show cause notice and the petitioner could have apprised the facts submitted in this writ petition before the first respondent. Though the learned counsel pointed out that several notices were issued to the petitioner before personal appearance was ordered, there is nothing on record to show any such proceedings. More over it is seen that Ext.P9 notice does not refer to any notice issued to the petitioner. It is only after seeing that the petitioner is a W.P.(C) No.26701 of 2008 :5: deemed information officer that the personal appearance was ordered. More over there is an affidavit by the Information Officer saying that he could not furnish information since the petitioner did not furnish same. As the factual circumstances belie the statement contained in Ext.P8 affidavit, the petitioner could have apprised these facts before the 1[st] respondent in case a show cause notice was issued before directing his appearance. Since personal appearance was ordered the petitioner approached this court and this court stayed further proceedings and the matter has been pending for the last 8 years. At this distance of time, I do not think it fruitful to remit the matter to the Information Commissioner, especially when the 3[rd] respondent is not interested. As contended by the learned counsel for the 1[st] respondent, the authority of the 1[st] respondent to issue show cause notice and to order personal appearance in appropriate cases, at the appropriate time, cannot be ruled out. In the circumstances of the case, I find it unnecessary to remit the matter back. This is a case where there was no information available, which could have been furnished pursuant to Ext.P1 application. As the learned counsel for the petitioner pointed out that Information Commission itself has taken a view that such information need not be furnished, as found in Ext.P10 order of the Commission, I W.P.(C) No.26701 of 2008 **==> picture [14 x 10] intentionally omitted <==** find that further proceedings in the matter need not be allowed. Accordingly Ext.P9 is quashed. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA JUDGE** rkc