Mohammed M.A. v. State Information Commission, Kerala and Shiju V. Poulose

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **THURSDAY, THE 22ND DAY OF DECEMBER 2022 / 1ST POUSHA 1944 WP(C) NO. 19582 OF 2015** ## **PETITIONER:** MOHAMMED M.A, S/O.ABDUL REHMAN, SUB INSPECTOR OF POLICE, PUTHENCRUZ POLICE STATION, RESIDING AT MANNOOPARAMBAN HOUSE, THENGOLA P.O., PERUMBAVOOR-683556. BY ADVS. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SMT.A.A.SHIBI SMT.M.K.SAMYUKTHA ## **RESPONDENTS:** 1 THE STATE INFORMATION COMMISSION KERALA PUNNEN ROAD, THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS SECRETARY. 2 SHIJU V.POULOSE VEEPANATH HOUSE, KARUMANGULAM, THIRUVANKULAM,ERNAKULAM DISTRICT, PIN 682305. BY ADVS. SMT.V.A.HARITHA SMT.P.M.MAZNA MANSOOR SRI.K.NANDAKUMAR SRI.P.SREEKUMAR SRI.P.VIVEK. BY SRI.M.AJAY, SC FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.11.2022, THE COURT ON 22.12.2022 DELIVERED THE FOLLOWING: WP(C)No.19582 of 2015 2 ## **MOHAMMED NIAS. C.P.,J** - - - - - - - - - - - - ## WP(C)No.19582 of 2015 - - - - - - - - - - - - - - - - - - ---Dated this the 22[nd] day of December, 2022 ## **JUDGMENT** Petitioner is aggrieved by Exts.P4 and P7 orders passed by the State Information Commissioner under the Right to Information Act (for short 'RTI Act'). 2. The brief facts leading to the writ petition are as follows:- Petitioner was the Station House Officer of Puthercruz Police Station, who was also designated as the State Public Information Officer under the RTI Act. The second respondent had filed an application on 18.09.204 seeking certain information regarding the registration of crime, information received at the station from the hospital etc. through Ext.P1 application. It is stated that on 29.9.2014 the Station Writer one Mr. Shajahan had prepared a draft reply and submitted it for approval, which is seen from Ext.P2. Ext.P2 also mentioned about the appeal to the first appellate authority. While matters stood so, the petitioner received a notice from the first respondent alleging that the Commission has come to a finding that proper information as WP(C)No.19582 of 2015 3 contemplated under the RTI Act has not been furnished to the second respondent applicant and the said action was therefore punishable under Section7(1) and 20 of the RTI Act and the Commission having examined the matter in detail had decided to initiate proceedings to impose penalty under Sections 20(1) and (2) of the RTI Act and the petitioner was asked through Ext.P3 dated 21.03.2015 to show cause within seven days as to why proceedings should not be initiated. The first respondent had also enclosed a copy of the order dated 16.03.2015 initiated on the complaint of the second respondent under Section 18 of the RTI Act. 3. The petitioner submits that proceedings initiated on the complaint of the second respondent under Section 18 of the RTI Act leading to Ext.P4 is null and void as the same is behind the back of the petitioner and without any kind of notice. In such circumstances, the petitioner also applied for copies of the documents relating to Ext.P4 order and sought information as to whether notice regarding the hearing in the said proceedings was served on the petitioner, which was done through Ext.P5 dated 20.06.2015. The first respondent thereafter pursuant to Ext.P4 proceeded to impose a penalty by order dated 18.04.2015 notwithstanding petitioner's reply, Ext.P6. The order passed as aforesaid was Ext.P7 and it is challenging Exts.P4 and P7 WP(C)No.19582 of 2015 4 that the writ petition is filed. 4. It is the specific contention of the petitioner that the petitioner was not even served copies of the complaint allegedly filed by the second respondent leading to Ext.P4 order and that no notice was issued in the proceedings initiated under Section 18 of the Act and further argument that it was an obligation under Section 18 to enquire into allegation as to whether information furnished is incorrect or incomplete and only it it if satisfied that there are reasonable grounds an enquiry may be initiated in that regard. The petitioner alleges that no such enquiry was conducted before issuing Ext.P4. He also has an argument that the first respondent ought not to have entertained a complaint under Section 18 without resort to the first appellate remedy. The petitioner has after the filing of the writ petition produced Ext.P8, which is a reply furnished under the RTI Act to the petitioner endorsing that no notice was issued to him in the proceedings initiated under Section 18 on the complaint of the second respondent. 5. This Court had by an interim order dated 30.09.2019 requested the learned standing counsel for the first respondent to get information as to whether the petitioner was heard before passing order under Section 18 (Ext.P4) . WP(C)No.19582 of 2015 5 5. I have heard Sri.P.K.Ibrahim, the learned counsel for the petitioner, Sri.M.Ajay, the learned standing counsel for the first respondent and the learned counsel for the second respondent. 6. The learned counsel for the petitioner reiterated the contentions stated in the writ petition and has also taken me through the documents produced. The learned counsel for the petitioner argues that even when powers are given to take evidence akin to that of the civil court including the power to enforce attendance of the witnesses, the procedure clearly envisages an enquiry which cannot be an exparte adjudication. The learned counsel for the petitioner relies on the judgments of of the Supreme Court in **Daffodills Pharmaceuticals Ltd. (M/s) and another v. State of U.P. and another** (2019 KHC 7250) and **M/s.Sahara India (FIRM), Lucknow v. Commissioner of Income Tax, Central I and another** (2008 KHC 4651) for the proposition that if an order entails civil consequences, notice is to be issued and an opportunity of hearing is a must even if the provision does not grant the same. 7. The learned Standing Counsel for the first respondent argues that no notice was needed before passing Ext.P4. He argues WP(C)No.19582 of 2015 6 that a notice is to be issued under the proviso to Section 20 only after finding _prima facie_ case of guilt as the petitioner always will get chance to meet the contentions before a punishment is imposed. The learned Standing counsel further argues that direct invocation of Section 18 is possible and that there is no obligation to send notice at the stage of issuance of Ext.P4. He also argues that the details that were sought pertain to human rights violation and as such even the period for granting the reply is shorter. 8. The learned standing counsel for the first respondent also cites the judgment in RP No.991 of 2014 as well as the judgments in WP(C)No.31391 of 2009 and WA No.2815 of 2009, to support his contentions. In the instant case, I find that the petitioner's specific case is that even the copy of the complaint filed by the second respondent has not been furnished to him. In such circumstances, without making a pronouncement on the legal issues raised in this case, I deem it fit in the interest of justice to set aside the orders, Exts.P4 and P7 and direct the first respondent to treat Ext.P4 as a notice issued to the petitioner. The petitioner will be free to file a proper reply to Ext.P4 including requesting to furnish copies of the complaint made against him. The petitioner shall also be afforded an WP(C)No.19582 of 2015 7 opportunity of being heard by the first respondent before proceeding further and fresh orders as directed above will be passed by the first respondent within an outer time limit of four months from the date of receipt of a copy of this judgment. I make it clear that I have not expressed anything on the merits or on the questions of law raised by either side. The writ petition is disposed of as above. **Sd/- MOHAMMED NIAS. C.P.,JUDGE** dlk/20/12/22 WP(C)No.19582 of 2015 8 ## **APPENDIX OF WP(C) 19582/2015** ## **PETITIONER'S EXHIBITS** EXHIBIT-P1: TRUE COPY OF THE APPLICATION DATED NIL SEEKING INFORMATION UNDER RTI ACT. EXHIBIT-P2: TRUE COPY OF THE INROMATION DATED 29.9.2014. EXHIBIT-P3: TRUE COPY OF THE SHOW-CAUSE NOTICE DATED 21.3.2015 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT-P4: TRUE COPY OF THE ORDER DATED 16.3.2015 OF THE 1ST RESPONDENT. EXHIBIT-P5: TRUE COPY OF THE RTI APPLICATION DATED 20.06.2015 FILED BEFORE THE 1ST RESPONDENT SEEKING A COPY OF THE COMPLAINT, AND OTHER INFORMATION. EXHIBIT-P6: TRUE COPY OF THE REPLY DATEDF 30.3.2015 TO THE SHOW CAUSE NOTICE. EXHIBIT-P7: TRUE COPY OF THE PENALTY ORDER DATED 18.4.2015. EXHIBIT P8:RUE COPY OF THE REPLY FURNISHED TO THE RTI APPLICATION.