P.K. JAFER v. STATE INFORMATION COMMISSION, THIRUVANANTHURAM & ULLAS.T.C., PANDAMPILLY, P.MUVATTUPUZHA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **THURSDAY, THE 5TH DAY OF JULY 2012/14TH ASHADHA 1934** **WP(C).No. 20577 of 2007 (Y) ---------------------------** PETITIONER(S): ------------P.K.JAFER, AGED 46 YEARS, S/O.P.K.KAREEM SAHIB, HEADMASTER GOVERNMENT U.P.SCHOOL, PANDAPILLY, MUVATTUPUZHA ERNAKULAM DISTRICT. BY ADVS.SRI.P.K.IBRAHIM SRI.THOMSTINE K.AUGUSTINE RESPONDENT(S): -------------1. THE STATE INFORMATION COMMISSION, THIRUVANANTHAPURAM. 2. ULLAS.T.C., THADATHIPARAMBIL, PANDAMPILLY P.O., MUVATTUPUZHA. BY ADV. SRI.M.AJAY, SC, STATE INFORMATION COMMN BY ADV. SRI.JOE JOSEPH KOCHIKUNNEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C).No. 20577 of 2007 (Y)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** |**EXT.P1:**|**COPY OF NOTICE NO.639/SIC-Gen 2/2007 DATED 15.2.2007 ISSUED**| |---|---| ||**BY THE 1ST RESPONDENT.**| |**EXT.P2;**|**COPY OF THE REPORT OF COMPLIANCE DATED 23.2.07 SUBMITTED BY**| ||**THE PETITIONER BEFORE THE 1ST RESPONDENT.**| |**EXT.P3:**|**COPY OF THE NOTICE NO.639/SIC-GeN2/07 DATED 7.5.07**| ||**ISSUED BY THE 1ST RESPONDENT.**| |**EXT.P4:**|**COPY OF THE NOTICE NO.639/SIC-Gen2/2007 DATED 15.5.07**| ||**ISSUED BY THE 1ST RESPONDENT.**| |**EXT.P5:**|**COPY OF THE REPLY TO THE SHOW CAUSE NOTICE DATED 28.5.07**| ||**SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.**| |**EXT.P6:**|**COPY OF THE ORDER IN CP NO.99/2007/SIC DATED 4.6.07**| ||**ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTION.**| |**EXT.P7:**|**COPY OF THE ORDER NO.M(3)77655/2005 DATED 29.12.06**| ||**ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTION.**| |**EXT.P8:**|**COPY OF THE APPLICATION DATED 18.6.07 BY THE**| ||**PETITIONER BEOFRE THE 1ST RESPONDENT.**| |**EXT.P9:**|**COPY OF THE REPLY NO.4174/SIC-GI/07 DATED 19.6.07**| ||**ISSUED BY THE 1ST RESPONDENT.**| |**EXT.P10(a): **|**COPY OF THE REVIEW PETITION DATED 18.6.07 SUBMITTED BY**| ||**THE PETITIONER BEFORE THE 1ST RESPONDENT.**| |**EXT.P10(b): **|**COPY OF THE ADDITIONAL STATEMENT DATED 21.6.07 SUBMITTED BY**| ||**THE PETITIONER BEFORE THE 1ST RESPONDENT.**| **RESPONDENTS' EXHIBITS:** **NIL** ## **TRUE COPY** **PA TO JUDGE.** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.20577 of 2007 ---------------------------------------------Dated this the 5[th] day of July, 2012 ## **JUDGMENT** The petitioner is the Headmaster of a Government U.P. School. The 2[nd] respondent submitted an application seeking certain information from the school. According to the petitioner, the petitioner was not aware of the obligation under the Right to Information Act at that time. He claims to have enquired with the office of the Assistant Educational Officer, Muvattupuzha, who is stated to have informed the petitioner that the petitioner is the Assistant Public Information Officer and the Assistant Educational Officer is the Public Information Officer. The petitioner, therefore, returned the application to the 2[nd] respondent for submission before the Public Information Officer. Thereafter, the petitioner received Ext.P1 notice dated 15.02.2007 from the State Information Commission directing that the application for information submitted by the 2[nd] respondent be disposed of within 15 days and report compliance thereof before 5.3.2007. W.P.(C)No.20577/07 2 The petitioner immediately acted upon Ext.P1 notice and supplied the information to the 2[nd] respondent. Thereafter, the petitioner was served with Ext.P3 notice dated 7.5.2007 by the State Information Commission directing him to show cause why penalty proceedings should not be initiated against him under Sections 20(1) and 20(2) of the Right to Information Act, 2005 for refusing to accept the request for information submitted by the 2[nd] respondent. The petitioner filed Ext.P5 reply explaining that he did not deliberately refrain from accepting the request and that only because he had no knowledge about him being designated as the Public Information Officer, he returned the application to the 2[nd] respondent. Thereafter, by Ext.P6 order, the State Information Commission imposed on the petitioner a penalty of Rs.16,250/- for refusal on the part of the petitioner to receive the request for information submitted by the 2[nd] respondent. The petitioner has filed this writ petition challenging Ext.P6. According to the petitioner, the petitioner is not guilty of any contumacious conduct so as to attract penalty under Section 20 of the Right to Information Act. He submits that the W.P.(C)No.20577/07 3 request was received in December 2006 and the Right to Information Act came into force only with effect from 12.10.2005. At that time, the petitioner was not even aware of the law and he had no knowledge about as to whether or not the petitioner is a Public Information Officer. He had not received any communication from the superior authorities designating him as a Public Information Officer. In fact, by Ext.P7 dated 29/12/2006, the Government has issued an order intimating all concerned that Assistant Educational officers are designated as Public Information Officer in respect of U.P. Schools. The petitioner came across Ext.P7 subsequent to passing of Ext.P6 order, is the contention raised. The petitioner submits that a penalty under Section 20 would be attracted only if the petitioner refused to receive the application for information without any reasonable cause. The petitioner contends that since the petitioner returned the application for request for information bonafide believing that he was not the Public Information Officer, there is sufficient reasonable cause shown by the petitioner and therefore, no penalty under Section 20 is attracted. He further points out W.P.(C)No.20577/07 4 that immediately on receipt of Ext.P1 communication from the State Information Commission dated 15.2.2007, the petitioner furnished the information and reported this matter to the Commission on 23.3.2007 itself. The petitioner, therefore, seeks the following reliefs: “i) call for the records leading to Ext.P6 and quash the same by issuing a writ of certiorari or any other appropriate writ; ii) issue a writ of declaration declaring that Petitioner is not liable for any penalty under the Right to Information Act; iii) direct the 2[nd] Respondent to pay the cost of Rs.10,000/- for the frivolous prosecution of the Petitioner under Section 18 of the Right to Information Act: iv) stay the operation of Ext.P6 order, pending disposal of the Writ Petition;” 2. The learned counsel appearing for the State Information Commission submits that even assuming that the petitioner was not the Public Information Officer and the Assistant Educational Officer's office informed that it is the Assistant Educational Officer, who is the Public Information Officer, under Section 6(3) of the Right to Information Act, he had a duty to forward the request for information to the Assistant Educational Officer, if the Assistant Educational Officer was the Public Information Officer, instead of doing W.P.(C)No.20577/07 5 which the petitioner has returned the request to the 2[nd] respondent, which itself is sufficient to impose penalty on the petitioner. It is submitted that the ignorance about the obligations of the Right to Information Act cannot be accepted as a defence for proceedings under Section 20 of the Act, insofar as ignorance of law cannot be accepted as a defence for violation of the law. 3. I have considered the rival contentions in detail. Under Section 20 of the Act, penalty would be attracted on a Public Information Officer only if he refused to receive an application for information or has not furnished information within the time specified in Section 7 without any reasonable cause. Of course, under the 2[nd] proviso to Section 20 of the Act, the burden of proving that the Public Information Officer acted reasonably and diligently shall be on the Public Information Officer. In Ext.P6 order, there is no specific finding that the petitioner refused to accept the request for information without any reasonable cause. The only finding is that the petitioner refused to receive the request for information. Of course, in Ext.P6, it is stated that in the 6 W.P.(C)No.20577/07 compliance report he had stated that he now understands that the primary Headmaster is an Information Officer. But, later on, before the Commission, he took the stand that he is not the Public Information Officer. The Act came into force on 12[th] October 2005. The request for information by the 2[nd] respondent was submitted by the 2[nd] respondent before the petitioner on 18.12.2006. That was at a time when the law relating to the Right to Information Act was still in its infancy. The petitioner was only a Primary School Headmaster. Proceedings for penalty should be initiated taking into account the fact that, at that time, the Primary School Headmaster may not be in the knowledge of nuances of the law on the Right to Information. The petitioner has categorically stated that on receipt of the request from the 2[nd] respondent, he immediately contacted the AEO's office, who informed him that the AEO is the Public Information Officer and therefore he returned the request to the 2[nd] respondent. This has not been controverted by the respondents. The petitioner has produced Ext.P7 dated 29.1.2006 issued by the Director of Public Instructions, whereby the Director of Public Instructions W.P.(C)No.20577/07 7 designated the Assistant Educational Officer as the Public Information Officer in respect of U.P. Schools, in accordance with Section 5 of the Act. In Ext.P6 order, the State Information Commission has found fault with the petitioner for taking contradictory stands as to whether or not the petitioner is the Information Officer. But, Ext.P7 proves beyond any doubt that the petitioner was not the Public Information Officer designated under Section 5 of the Act and therefore, his stand was correct rather than that of the State Information Commission. I am of opinion that these are more than sufficient reasonable cause for the conduct of the petitioner in the matter of returning the request for information to the 2[nd] respondent. Of course, technically, in view of Section 6(3), the petitioner may be wrong in returning it to the 2[nd] respondent, since Section 6(3) enjoins on the public authority to forward the request to the appropriate Information Officer. But, that is only a technical or venial breach, which cannot attract penalty, which has been held so by the Supreme Court in _**M/s. Hindustan Steel Ltd**_ . v. _**The State of Orissa**_ [AIR 1970 SC 253] In that decision, it has been categorically held that 8 W.P.(C)No.20577/07 insofar as the imposition of penalty is a quasi criminal proceedings unless the person accused of the breach of law acted contumaciously in defence of law or acted in conscious disregard of his obligation, penalty will not be attracted. Insofar as in Ext.P6, there is no specific finding that the petitioner was guilty of any contumacious conduct in defiance of law or that he acted in conscious disregard of his obligation, I do not think that the State Information Commission was right in imposing penalty on the petitioner for returning the request for information to the 2[nd] respondent. Accordingly, Ext.P6 order is quashed. The writ petition is allowed as above. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.20577/07 9 W.P.(C)No.20577/07 10 W.P.(C)No.20577/07 11