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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  9095          OF 2012 (Arising out of SLP(C) No.7529 of 2009)

Manohar s/o Manikrao Anchule ... Appellant Versus

State of Maharashtra & Anr. ...  Respondents

J U D G M E N T

Swatanter Kumar, J.

1. Leave granted.

2. The present appeal is directed against the judgment dated  

18th December, 2008 of the High Court of Bombay at Aurangabad  

vide which the  High Court  declined to interfere  with  the  order  

dated  26th February,  2008  passed  by  the  State  Information  

Commissioner under the provisions of the Right to Information Act,  

2005 (for short ‘the Act’).

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3. We may notice the facts in brief giving rise to the present  

appeal.  One  Shri  Ram  Narayan,  respondent  No.2,  a  political  

person belonging to the Nationalist Congress Party, Nanded filed  

an application on 3rd January, 2007, before the appellant who was  

a  nominated  authority  under  Section  5  of  the  Act  and  was  

responsible for providing the information sought by the applicants.  

This application was moved under Section 6(1) of the Act.

4. In  the  application,  the  said  respondent  No.2  sought  the  

following information:

“a. The  persons  those  who  are  appointed/selected through a reservation  category,  their  names,  when  they  have  appointed on the said post.

b. When they have joined the said post.

c. The  report  of  the  Caste  Verification  Committee  of  the  persons  those  who  are/were  selected  from  the  reserved  category.

d. The  persons  whose  caste  certificate  is/was forwarded for the verification to the  caste  verification  committee  after  due  date. Whether any action is taken against  those persons? If any action is taken, then  the  detail  information  should  be  given  within 30 days.”

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5. The  appellant,  at  the  relevant  time,  was  working  as  

Superintendent  in  the  State  Excise  Department  and  was  

designated  as  the  Public  Information  Officer.  Thus,  he  was  

discharging the functions required under the provisions of the Act.  

After  receiving  the  application  from  Respondent  No.2,  the  

appellant forwarded the application to the concerned Department  

for collecting the information. Vide letter dated 19th January, 2007,  

the appellant had informed respondent No.2 that  action on his  

application  has  been  taken  and  the  information  asked  for  has  

been called from the concerned department and as and when the  

information  is  received,  the  application  could  be  answered  

accordingly. As respondent No.2 did not receive the information in  

furtherance to his application dated 3rd January, 2007, he filed an  

appeal within the prescribed period before the Collector, Nanded  

on 1st March, 2007, under Section 19(1) of the Act. In the appeal,  

respondent  No.2  sought  the  information  for  which  he  had  

submitted the application. This appeal was forwarded to the office  

of the appellant along with the application given by respondent  

No.2.  No hearing was conducted by the office of the Collector at  

Nanded.  Vide  letter  dated  11th April,  2007,  the  then  3

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Superintendent, State Excise, Nanded, also designated as Public  

Information Officer, further wrote to respondent No.2 that since he  

had not mentioned the period for which the information is sought,  

it was not possible to supply the information and requested him to  

furnish the period for which such information was required.  The  

letter dated 11th April, 2007 reads as under :

“... you have not mentioned the period of the  information which is sought by you. Therefore, it  is  not  possible  to  supply  the  information.  Therefore,  you  should  mention  the  period  of  information in your application so that it will be  convenient to supply the information.”

6. As already noticed there was no hearing before the Collector  

and the appeal before the Collector had not been decided.  It is  

the  case  of  the  appellant  that  the  communication  from  the  

Collector's office dated 4th March, 2007 had not been received in  

the office of the appellant. Despite issuance of the letter dated  

11th April,  2007,  no  information  was  received  from respondent  

No.2 and,  thus,  the  information  could  not  be  furnished by the  

appellant. On 4th April, 2007, the appellant was transferred from  

Nanded  to  Akola  District  and  thus  was  not  responsible  for  

performance  of  the  functions  of  the  post  that  he  was  earlier  4

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holding at Nanded and so also the functions of Designated Public  

Information Officer.

7. Respondent No.2, without awaiting the decision of the First  

Appellate  Authority  (the  Collector),  filed  an  appeal  before  the  

State  Information  Commission  at  Aurangabad  regarding  non-

providing of the information asked for. The said appeal came up  

for hearing before the Commission at Aurangabad who directed  

issuance of the notice to the office of the State Excise at Nanded.  

The Nanded office informed the appellant of the notice and that  

the  hearing was kept  for  26th February,  2008 before the State  

Information Commission at Aurangabad.  This was informed to the  

appellant vide letter dated 12th February, 2008. On 25th February,  

2008, the applicant forwarded an application through fax to the  

office  of  the  State  Information  Commissioner  bringing  to  their  

notice that for official reasons he was unable to appear before the  

Commissioner on that date and requested for grant of extension  

of time for that  purpose. Relevant part  of the letter dated 25th  

February 2008 reads as under:

“...hearing is fixed before the Hon'ble Minister,  State Excise M.S.Mumbai in respect of licence of  

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CL-3  of  Shivani  Tq.  and  Dist.  Akola.  For  that  purpose it is necessary for the Superintendent,  State  Excise,  Akola  for  the  said  hearing.  Therefore, it  is not possible for him to remain  present  for  hearing  on  26.2.2008  before  the  Hon'ble  Commissioner,  State  Information  Commission,  Aurangabad.  Therefore,  it  is  requested that next date be given for the said  hearing.”

8. The State Information Commission, without considering the  

application and even the request made by the Officer who was  

present before the State Information Commission at the time of  

hearing, allowed the appeal  vide its  order dated 26th February,  

2008,  directing  the  Commissioner  for  State  Excise  to  initiate  

action against the appellant as per the Service Rules and that the  

action should be taken within two months and the same would be  

reported  within  one  month  thereafter  to  the  State  Information  

Commission. It will be useful to reproduce the relevant part of the  

order dated 26th February, 2008, passed by the State Information  

Commissioner:

“The  applicant  has  prefer  First  appeal  before  the Collector on 1.3.2007, the said application  was  received  to  the  State  Excise  Office  on  4.3.2007 and on 11.4.2007 it was informed to  the  applicant,  that  he has not  mentioned the  specific  period  regarding  the  information.  The  

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Public Information Officer, ought to have been  informed to the applicant after receiving his first  application  regarding  the  specific  period  of  information  but,  here  the  public  information  officer  has  not  consider  positively,  the  application of the applicant and not taken any  decision.  On  the  application  given  by  the  applicant, the public information officer ought to  have  been  informed  to  the  applicant  on  or  before 28.1.2007 and as per the said Act, 2005  there  is  delay  73  days  for  informing  the  applicant  and  this  shows  that,  the  Public  Information  Officer  has  not  perform  his  duty  which is casted upon him and he is negligent it  reveals after going through the documents by  the  State  Commission.  Therefore,  it  is  order  that, while considering above said matter, the  concerned Public Information Officer, has made  delay of 73 days for informing to the applicant  and  therefore  he  has  shown  the  negligence  while  performing  his  duty.  Therefore,  it  is  ordered  to  the  Commissioner  of  State  Excise  Maharashtra State to take appropriate action as  per  the  Service  Rules  and  Regulation  against  the concerned Public Information Officer within  the two months from this order and thereafter,  the compliance report will be submitted within  one month in the office of State Commission. As  the  applicant  has  not  mentioned  the  specific  period for information in his original application  and  therefore,  the  Public  Information  Officer  was unable to supply him information. There is  no order to the Public Information Officer to give  information  to  the  applicant  as  per  his  application. It is necessary for all the applicant  those who want the information under the said  Act, he should fill up the form properly and it is  confirmed  that,  whether  he  has  given  detail  information while submitting the application as  

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per  the  proforma  and  this  would  be  confirm  while  making  the  application,  otherwise  the  Public Information Officer will not in position to  give expected information to the applicant. At  the time of filing the application, it is necessary  for the applicant, to fill-up the form properly and  it was the prime duty of the applicant. As per the above mentioned, the second appeal  filed  by  the  applicant  is  hereby  decided  as  follows:

O R D E R

1. The appeal is decided.

2. As  the  concern Public  Information Officer  has shown his negligence while performing  his  duty,  therefore,  the  Commissioner  of  State Excise, State of Maharashtra has to  take appropriate action as per the service  rules within two months from the date of  order  and  thereafter,  within  one  month  they should submit their compliance report  to the State Commission.”

9. The  legality  and  correctness  of  the  above  order  was  

challenged by the appellant before the High Court by filing the  

writ  petition under Article 226 of the Constitution of India.  The  

appellant had taken various grounds challenging the correctness  

of this order. However, the High Court, vide its order dated 18th  

December, 2008, dismissed the writ petition observing that the  

appellant  ought  to  have  passed  the  appropriate  orders  in  the  

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matter  rather  than  keeping  respondent  No.2 waiting.    It  also  

noticed the contention that the application was so general  and  

vague  in  nature  that  the  information  sought  for  could  not  be  

provided.  However, it did not accept the same.

10. It is contended on behalf of the appellant that the order of  

the State Information Commission, as affirmed by the High Court,  

is in violation of the principles of natural justice and is contrary to  

the very basic provisions of Section 20 of the Act. The order does  

not satisfy any of the ingredients spelt out in the provisions of  

Section 20(2) of the Act. The State Information Commission did  

not decide the appeal, it only directed action to be taken against  

the  appellant  though the  appeal  as  recorded in  the  order  had  

been decided. It can, therefore, be inferred that there is apparent  

non-application of mind.

11. The impugned orders do not take the basic facts of the case  

into consideration that after a short duration the appellant was  

transferred  from the post  in  question and had acted  upon the  

application seeking information within the prescribed time. Thus,  

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no  default,  much  less  a  negligence,  was  attributable  to  the  

appellant.

12. Despite  service,  nobody  appeared  on  behalf  of  the  State  

Information Commission. The State filed no counter affidavit.

13. Since the primary controversy in the case revolves around  

the interpretation of the provisions of Section 20 of the Act, it will  

be necessary for us to refer to the provisions of Section 20 of the  

Act at this stage itself. Section 20 reads as under:

“Section  20:  Penalties:-(1)  Where  the  Central  Information  Commission  or  the  State  Information Commission, as the case may be, at  the time of deciding any complaint or appeal is  of  the  opinion  that  the  Central  Public  Information  Officer  or  the  State  Public  Information Officer,  as  the  case may be,  has,  without  any  reasonable  cause,  refused  to  receive an application for information or has not  furnished information within the time specified  under sub-section (1) of section 7 or malafidely  denied the request for information or knowingly  given  incorrect,  incomplete  or  misleading  information or destroyed information which was  the subject of the request or obstructed in any  manner  in  furnishing  the  information,  it  shall  impose  a  penalty  of  two  hundred  and  fifty  rupees each day till  application is received or  information is furnished, so however, the total  amount  of  such  penalty  shall  not  exceed  twenty-five thousand rupees:

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Provided  that  the  Central  Public  Information  Officer or the State Public Information Officer,  as the case may be, shall be given a reasonable  opportunity of being heard before any penalty is  imposed on him: Provided further that the burden of proving that  he acted reasonably and diligently shall be on  the  Central  Public  Information  Officer  or  the  State  Public  Information  Officer,  as  the  case  may be. (2) Where the Central Information Commission  or  the  State  Information  Commission,  as  the  case  may  be,  at  the  time  of  deciding  any  complaint or appeal is of the opinion that the  Central  Public Information Officer or the State  Public Information Officer, as the case may be,  has  without  any  reasonable  cause  and  persistently, failed to receive an application for  information  or  has  not  furnished  information  within the time specified under sub-section (1)  of Section 7 or malafidely denied the request for  information  or  knowingly  given  incorrect,  incomplete  or  misleading  information  or  destroyed information which was the subject of  the  request  or  obstructed  in  any  manner  in,  furnishing the information, it  shall  recommend  for disciplinary action against the Central Public  Information  Officer  or  the  State  Public  Information Officer, as the case may be, under  the service rules applicable to him.”

14. State  Information  Commissions  exercise  very  wide  and  

certainly quasi judicial powers. In fact their functioning is akin to  

the  judicial  system rather  than  the  executive  decision  making  

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15. It  is  a  settled principle  of law and does not  require  us to  

discuss this principle with any elaboration that adherence to the  

principles  of  natural  justice  is  mandatory  for  such  Tribunal  or  

bodies discharging such functions.

16. The  State  Information  Commission  has  been  vested  with  

wide  powers  including  imposition  of  penalty  or  taking  of  

disciplinary action against the employees. Exercise of such power  

is bound to adversely affect or bring civil  consequences to the  

delinquent.  Thus, the provisions relating to penalty or to penal  

consequences have to be construed strictly. It will not be open to  

the Court to give them such liberal construction that it would be  

beyond  the  specific  language  of  the  statute  or  would  be  in  

violation to the principles of natural justice.

17. The State Information Commission is performing adjudicatory  

functions where two parties raise their respective issues to which  

the State Information Commission is expected to apply its mind  

and pass an order directing disclosure of the information asked for  

or  declining the same.   Either  way, it  affects  the rights of the  

parties who have raised rival contentions before the Commission.  

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If there were no rival contentions, the matter would rest at the  

level of the designated Public Information Officer or immediately  

thereafter.  It comes to the State Information Commission only at  

the  appellate  stage  when  rights  and  contentions  require  

adjudication.  The adjudicatory process essentially has to be in  

consonance with the  principles  of natural  justice,  including the  

doctrine of audi alteram partem.  Hearing the parties, application  

of mind and recording of reasoned decision are the basic elements  

of natural justice.  It is not expected of the Commission to breach  

any of these principles, particularly when its orders are open to  

judicial review.   Much less to Tribunals or such Commissions, the  

Courts  have  even  made  compliance  to  the  principle  of  rule  of  

natural justice obligatory in the class of administrative matters as  

well. In the case of  A.K. Kraipak & Ors. v.  Union of India & Ors.  

[(1969) 2 SCC 262], the Court held as under :

“17. … It  is  not  necessary  to  examine  those  decisions  as  there  is  a  great  deal  of  fresh  thinking on the subject. The horizon of natural  justice is constantly expanding…

The  aim  of  the  rules  of  natural  justice  is  to  secure justice or to put it negatively to prevent  miscarriage of justice. These rules can operate  

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only  in  areas  not  covered  by  any  law validly  made. In other words they do not supplant the  law  of  the  land  but  supplement  it….  The  concept  of  natural  justice  has  undergone  a  great deal of change in recent years. In the past  it  was thought  that  it  included just  two rules  namely: (1) no one shall be a judge in his own  case  (Nemo debet  esse  judex  propria  causa)  and  (2)  no  decision  shall  be  given  against  a  party  without  affording  him  a  reasonable  hearing  (audi  alteram  partem).  Very  soon  thereafter a third rule was envisaged and that is  that  quasi-judicial  enquiries  must  be  held  in  good faith,  without bias and not  arbitrarily  or  unreasonably. But in the course of years many  more subsidiary rules came to be added to the  rules of natural justice. Till very recently it was  the  opinion  of  the  courts  that  unless  the  authority  concerned  was  required  by  the  law  under which it functioned to act judicially there  was no room for the application of the rules of  natural justice. The validity of that limitation is  now questioned. If the purpose of the rules of  natural  justice  is  to  prevent  miscarriage  of  justice one fails to see why those rules should  be  made  inapplicable  to  administrative  enquiries. Often times it is not easy to draw the  line  that  demarcates  administrative  enquiries  from  quasi-judicial  enquiries.  Enquiries  which  were considered administrative at one time are  now  being  considered  as  quasi-judicial  in  character. Arriving at a just decision is the aim  of  both  quasi-judicial  enquiries  as  well  as  administrative enquiries. An unjust decision in  an administrative enquiry may have more far  reaching  effect  than  a  decision  in  a  quasi- judicial  enquiry.  As  observed by this  Court  in  Suresh Koshy George v. University of Kerala the  rules of natural justice are not embodied rules.  

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What  particular  rule  of  natural  justice  should  apply to a given case must depend to a great  extent on the facts and circumstances of that  case, the framework of the law under which the  enquiry  is  held  and  the  constitution  of  the  Tribunal or body of persons appointed for that  purpose. Whenever a complaint is made before  a  court  that  some principle  of  natural  justice  had been contravened the court has to decide  whether  the  observance  of  that  rule  was  necessary for a just decision on the facts of that  case.

18. In the case of  Kranti  Associates (P)  Ltd. & Ors.  v.  Masood  

Ahmed Khan & Ors. [(2010) 9 SCC 496], the Court dealt with the  

question of demarcation between the administrative orders and  

quasi-judicial orders and the requirement of adherence to natural  

justice.  The Court held as under :

“47. Summarising  the  above  discussion,  this  Court holds:

(a) In India the judicial trend has always been  to record reasons, even in  administrative  decisions, if  such decisions affect  anyone  prejudicially.

(b) A  quasi-judicial  authority  must  record  reasons in support of its conclusions.

(c) Insistence  on  recording  of  reasons  is  meant  to  serve  the  wider  principle  of  justice that justice must not only be done it  must also appear to be done as well.

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(d) Recording  of  reasons  also  operates  as  a  valid  restraint  on  any  possible  arbitrary  exercise  of  judicial  and  quasi-judicial  or  even administrative power.

(e) Reasons reassure that discretion has been  exercised  by  the  decision-maker  on  relevant  grounds  and  by  disregarding  extraneous considerations.

(f) Reasons  have  virtually  become  as  indispensable a component of a decision- making process as observing principles of  natural  justice  by  judicial,  quasi-judicial  and even by administrative bodies.

(g) Reasons  facilitate  the  process  of  judicial  review by superior courts.

(h) The ongoing judicial trend in all countries  committed to rule of law and constitutional  governance  is  in  favour  of  reasoned  decisions based on relevant facts.  This is  virtually  the  lifeblood of judicial  decision- making justifying the principle that reason  is the soul of justice.

(i) Judicial  or  even  quasi-judicial  opinions  these  days  can  be  as  different  as  the  judges and authorities  who deliver  them.  All  these  decisions  serve  one  common  purpose which is to demonstrate by reason  that  the  relevant  factors  have  been  objectively  considered.  This  is  important  for  sustaining  the  litigants'  faith  in  the  justice delivery system.

(j) Insistence on reason is a requirement for  both  judicial  accountability  and  transparency.

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(k) If a judge or a quasi-judicial authority is not  candid  enough  about  his/her  decision- making  process  then  it  is  impossible  to  know  whether  the  person  deciding  is  faithful to the doctrine of precedent or to  principles of incrementalism.

(l) Reasons in  support  of  decisions  must  be  cogent, clear and succinct. A pretence of  reasons or “rubber-stamp reasons” is not  to be equated with a valid decision-making  process.

(m) It cannot be doubted that transparency is  the sine qua non of restraint on abuse of  judicial  powers. Transparency in decision- making  not  only  makes  the  judges  and  decision-makers  less  prone  to  errors  but  also  makes  them  subject  to  broader  scrutiny. (See David Shapiro in Defence of  Judicial Candor.)

(n) Since  the  requirement  to  record  reasons  emanates  from  the  broad  doctrine  of  fairness  in  decision-making,  the  said  requirement is now virtually a component  of human rights and was considered part  of  Strasbourg  Jurisprudence.  See  Ruiz  Torija v.  Spain EHRR, at 562 para 29 and  Anya v.  University of Oxford,  wherein the  Court referred to Article 6 of the European  Convention  of  Human  Rights  which  requires,

“adequate and intelligent reasons must be  given for judicial decisions”.

(o) In all common law jurisdictions judgments  play a vital  role in setting up precedents  for the future. Therefore, for development  

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of law, requirement  of giving reasons for  the  decision  is  of  the  essence  and  is  virtually a part of ‘due process’.”

19. The Court has also taken the view that even if cancellation of  

the poll were an administrative act that per se does not repel the  

application of the principles of natural justice.  The Court further  

said that classification of functions as judicial or administrative is a  

stultifying shibboleth discarded in India as in England.  Today, in  

our jurisprudence, the advances made by the natural justice far  

exceed old frontiers  and if  judicial  creativity  blights  penumbral  

areas,  it  is  also  for  improving  the  quality  of  Government  in  

injecting fair play into its wheels.  Reference in this regard can be  

made  to  Mohinder  Singh  Gill v.  Chief  Election  Commissioner  

[(1978) 1 SCC 405].

20. Referring to the requirement of adherence to principles of  

natural justice in adjudicatory process, this Court in the case of  

Namit Sharma v.  Union of India [2012 (8) SCALE 593],  held as  

under:

“97. It is not only appropriate but is a solemn  duty of every adjudicatory body, including the  tribunals, to state the reasons in support of its  

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decisions.  Reasoning is the soul of a judgment  and embodies one of the three pillars on which  the  very  foundation  of  natural  justice  jurisprudence  rests.   It  is  informative  to  the  claimant of the basis for rejection of his claim,  as well as provides the grounds for challenging  the  order  before  the  higher  authority/constitutional  court.   The  reasons,  therefore, enable the authorities, before whom  an order is challenged, to test the veracity and  correctness  of  the  impugned  order.   In  the  present times, since the fine line of distinction  between the functioning of the administrative  and quasi-judicial bodies is gradually becoming  faint,  even  the  administrative  bodies  are  required  to  pass  reasoned  orders.   In  this  regard,  reference  can  be  made  to  the  judgments of this Court in the cases of Siemens  Engineering & Manufacturing Co. of India Ltd. v.  Union of India & Anr. [(1976) 2 SCC 981]; and  Assistant  Commissioner,  Commrcial  Tax  Department Works Contract and Leasing, Kota  v. Shukla & Brothers [(2010) 4 SCC 785].”

21. We  may  notice  that  proviso  to  Section  20(1)  specifically  

contemplates  that  before  imposing  the  penalty  contemplated  

under  Section  20(1),  the  Commission  shall  give  a  reasonable  

opportunity of being heard to the concerned officer.   However,  

there  is  no  such  specific  provision  in  relation  to  the  matters  

covered under Section 20(2).  Section 20(2) empowers the Central  

or the State Information Commission, as the case may be, at the  

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time of deciding a complaint or appeal for the reasons stated in  

that  section,  to  recommend for  disciplinary  action  to  be  taken  

against the Central Public Information Officer or the State Public  

Information  Officer,  as  the  case  may  be,  under  the  relevant  

service rules.  Power to recommend disciplinary action is a power  

exercise of which may impose penal consequences.  When such a  

recommendation  is  received,  the  disciplinary  authority  would  

conduct the disciplinary proceedings in accordance with law and  

subject  to  satisfaction  of  the  requirements  of  law.   It  is  a  

‘recommendation’  and  not  a  ‘mandate’  to  conduct  an  enquiry.  

‘Recommendation’ must be seen in contradistinction to ‘direction’  

or  ‘mandate’.   But  recommendation  itself  vests  the  delinquent  

Public Information Officer or State Public Information Officer with  

consequences  which  are  of  serious  nature  and  can  ultimately  

produce  prejudicial  results  including  misconduct  within  the  

relevant service rules and invite minor and/or major penalty.   

22. Thus, the principles of natural justice have to be read into the  

provisions  of  Section  20(2).   It  is  a  settled  canon  of  civil  

jurisprudence including service jurisprudence that no person be  

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condemned unheard.  Directing disciplinary action is an order in  

the  form  of  recommendation  which  has  far  reaching  civil  

consequences.  It  will  not be permissible to take the view that  

compliance  with  principles  of  natural  justice  is  not  a  condition  

precedent to passing of a recommendation under Section 20(2).  

In the case of Udit Narain Singh Malpharia v. Additional Member,  

Board of Revenue, Bihar [AIR 1963 SC 786], the Court stressed  

upon compliance with the principles of natural justice in judicial or  

quasi-judicial proceedings.  Absence of such specific requirement  

would invalidate the order.  The Court, reiterating the principles  

stated  in  the  English  Law  in  the  case  of  King  v.  Electricity  

Commissioner, held as under :

“The  following  classic  test  laid  down  by  Lord  Justice  Atkin,  as  he  then  was,  in  King v.  Electricity Commissioners and followed by this  Court in more than one decision clearly brings  out the meaning of the concept of judicial act:

“Wherever  anybody  of  persons  having  legal  authority  to  determine  questions  affecting the rights of subjects, and having  the duty to act judicially, act in excess of  their legal authority they are subject to the  controlling jurisdiction of the King's Bench  Division exercised in these writs.”

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Lord Justice Slesser  in  King v.  London County  Council dissected the concept of judicial act laid  down by Atkin, L.J., into the following heads in  his judgment:  “Wherever any body of persons  (1)  having  legal  authority  (2)  to  determine  questions  affecting  rights  of  subjects  and  (3)  having the duty to act judicially (4) act in excess  of their legal authority — a writ of certiorari may  issue.” It  will  be seen from the ingredients of  judicial  act  that  there  must  be  a  duty  to  act  judicially.  A  tribunal,  therefore,  exercising  a  judicial  or  quasi-judicial  act  cannot  decide  against the rights of a party without giving him  a  hearing  or  an  opportunity  to  represent  his  case  in  the  manner  known  to  law.  If  the  provisions of a particular statute or rules made  thereunder  do not  provide for  it,  principles of  natural justice demand it. Any such order made  without hearing the affected parties would be  void. As a writ  of certiorari  will  be granted to  remove the record of proceedings of an inferior  tribunal or authority exercising judicial or quasi- judicial  acts,  ex hypothhesi it  follows that  the  High Court in exercising its jurisdiction shall also  act  judicially  in  disposing  of  the  proceedings  before it.”

23. Thus, the principle is clear and settled that right of hearing,  

even if  not  provided under  a  specific  statute,  the  principles  of  

natural  justice  shall  so  demand,  unless  by  specific  law,  it  is  

excluded.  It is more so when exercise of authority is likely to vest  

the person with consequences of civil nature.

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24. In light of the above principles, now we will examine whether  

there is any violation of principles of natural justice in the present  

case.

25. Vide  letter  dated  12th February,  2008,  the  appellant  was  

informed by the Excise Department, Nanded, when he was posted  

at  Akola  that  hearing  was  fixed  for  25th February,  2008.   He  

submitted  a  request  for  adjournment  which,  admittedly,  was  

received and placed  before  the  office  of  the  State  Information  

Commission.   In  addition  thereto,  another  officer  of  the  

Department  had  appeared,  intimated  the  State  Information  

Commission and requested for adjournment, which was declined.  

It  was  not  that  the  appellant  had  been  avoiding  appearance  

before the State Information Commission.  It was the first date of  

hearing and in the letter dated 25th February, 2008, he had given  

a reasonable cause for his absence before the Commission on 25th  

February, 2008.  However, on 26th February, 2008, the impugned  

order was passed.  The appellant was entitled to a hearing before  

an  order  could  be  passed  against  him under  the  provisions  of  

Section 20(2) of the Act.  He was granted no such hearing.  The  

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State  Information  Commission  not  only  recommended  but  

directed  initiation  of  departmental  proceedings  against  the  

appellant and even asked for the compliance report.  If such a  

harsh order was to be passed against the appellant, the least that  

was  expected  of  the  Commission  was  to  grant  him  a  

hearing/reasonable opportunity to put forward his case. We are of  

the considered view that the State Information Commission should  

have  granted  an  adjournment  and  heard  the  appellant  before  

passing an order Section under 20(2) of the Act.  On that ground  

itself,  the impugned order is liable to be set aside.  It  may be  

usefully noticed at  this stage that the appellant had a genuine  

case to explain before the State Information Commission and to  

establish  that  his  case  did  not  call  for  any  action  within  the  

provisions of Section 20(2).  Now, we would deal with the other  

contention on behalf of the appellant that the order itself does not  

satisfy  the  requirements  of  Section  20(2)  and,  thus,  is  

unsustainable  in  law.  For this  purpose,  it  is  necessary  for  the  

Court to analyse the requirement and scope of Section 20(2) of  

the  Act.   Section  20(2)  empowers  a  Central  Information  

Commission or the State Information Commission : 24

Page 25

(a) at the time of deciding any complaint or appeal;

(b) if  it  is  of  the  opinion  that  the  Central  Public  Information  

Officer or the State Public Information Officer, as the case  

may be, has without any reasonable cause and persistently,  

failed to  receive an  application for  information or  has  not  

furnished information within the time specified under  sub-

section (1) of Section 7 (i.e. 30 days);

(c) malafidely denied the request for information or intentionally  

given incorrect, incomplete or misleading information; or

(d) destroyed information which was the subject of the request  

or obstructed in any manner in furnishing the information;

(e) then it  shall  recommend for disciplinary action against the  

stated persons under the relevant servicerules.

26. From the above dissected  language  of  the  provision,  it  is  

clear  that  first  of  all  an  opinion  has  to  be  formed  by  the  

Commission.  This opinion is to be formed at the time of deciding  

any complaint or appeal after hearing the person concerned.  The  

opinion formed has to have basis or reasons and must be relatable  

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to any of the defaults of the provision.  It is a penal provision as it  

vests the delinquent with civil consequences of initiation of and/or  

even punishment in disciplinary proceedings.  The grounds stated  

in the Section are exhaustive and it is not for the Commission to  

add  other  grounds  which  are  not  specifically  stated  in  the  

language of Section 20(2).  The section deals with two different  

proceedings.   Firstly,  the  appeal  or  complaint  filed  before  the  

Commission is  to  be decided and,  secondly,  if  the  Commission  

forms such opinion, as contemplated under the provisions, then it  

can recommend that  disciplinary proceedings be taken against  

the  said  delinquent  Central  Public  Information  Officer  or  State  

Public  Information  Officer.   The  purpose  of  the  legislation  in  

requiring both these proceedings to be taken together is obvious  

not only from the language of the section but even by applying  

the mischief rule wherein the provision is examined from the very  

purpose for which the provision has been enacted.  While deciding  

the  complaint  or  the  appeal,  if  the  Commission  finds  that  the  

appeal is without merit or the complaint is without substance, the  

information need not be furnished for reasons to be recorded.  If  

such be the decision, the question of recommending disciplinary  26

Page 27

action under  Section 20(2)  may not  arise.   Still,  there  may be  

another situation that upon perusing the records of the appeal or  

the complaint, the Commission may be of the opinion that none of  

the defaults contemplated under Section 20(2) is satisfied and,  

therefore, no action is called for.  To put it simply, the Central or  

the  State  Commission  have  no  jurisdiction  to  add  to  the  

exhaustive  grounds  of  default  mentioned  in  the  provisions  of  

Section 20(2).   The case of default  must  strictly fall  within the  

specified grounds of the provisions of Section 20(2).  This provision  

has to  be  construed and applied  strictly.   Its  ambit  cannot  be  

permitted to be enlarged at the whims of the Commission.

27. Now, let us examine if any one or more of the stated grounds  

under  Section  20(2)  were  satisfied  in  the  present  case  which  

would justify the recommendation by the Commission of taking  

disciplinary  action  against  the  appellant.   The  appellant  had  

received  the  application  from  respondent  No.2  requiring  the  

information sought for on 3rd January, 2007.   He had, much within  

the  period  of  30  days  (specified  under  Section  7),  sent  the  

application to the concerned department requiring them to furnish  

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the requisite information.  The information had not been received.  

May be after the expiry of the prescribed period, another letter  

was written by the department to respondent No.2 to state the  

period for which the information was asked for.  This letter was  

written on 11th April, 2007.  To this letter, respondent No.2 did not  

respond at all.  In fact, he made no further query to the office of  

the  designated  Public  Information  Officer  as  to  the  fate  of  his  

application and instead preferred an appeal before the Collector  

and thereafter appeal before the State Information Commission.  

In  the  meanwhile,  the  appellant  had  been  transferred  in  the  

Excise Department from Nanded to Akola.  At this stage, we may  

recapitulate the relevant dates.  The application was filed on 3rd  

January, 2007, upon which the appellant had acted and vide his  

letter dated 19th January, 2007 had forwarded the application for  

requisite information to the concerned department.  The appeal  

was filed by respondent no.2 under Section 19(1) of the Act before  

the Collector, Nanded on 1st March, 2007.  On 4th March, 2007, the  

appeal was forwarded to the office of the Excise Department.  On  

4th April, 2007, the appellant had been transferred from Nanded to  

Akola.  On 11th April, 2007, other officer from the Department had  28

Page 29

asked  respondent  no.2  to  specify  the  period  for  which  the  

information  was  required.   If  the  appellant  was  given  an  

opportunity and had appeared before the Commission, he might  

have been able to explain that there was reasonable cause and he  

had taken all reasonable steps within his power to comply with the  

provisions.  The Commission is expected to formulate an opinion  

that  must  specifically  record  the  finding  as  to  which  part  of  

Section 20(2) the case falls in.  For instance, in relation to failure  

to receive an application for information or failure to furnish the  

information within the period specified in Section 7(1), it should  

also record the opinion if such default was persistent and without  

reasonable cause.  

28. It appears that the facts have not been correctly noticed and,  

in  any  case,  not  in  their  entirety  by  the  State  Information  

Commission.   It  had formed an opinion that  the  appellant  was  

negligent and had not performed the duty cast upon him.  The  

Commission noticed that there was 73 days delay in informing the  

applicant and, thus, there was negligence while performing duties.  

If one examines the provisions of Section 20(2) in their entirety  

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then it  becomes obvious that  every default  on the  part  of the  

concerned officer may not result in issuance of a recommendation  

for disciplinary action.  The case must fall in any of the specified  

defaults  and  reasoned  finding  has  to  be  recorded  by  the  

Commission while making such recommendations.  ‘Negligence’  

per se  is not a ground on which proceedings under Section 20(2)  

of the Act can be invoked.  The Commission must return a finding  

that such negligence, delay or default is persistent and without  

reasonable cause.  In our considered view, the Commission, in the  

present case, has erred in not recording such definite finding.  The  

appellant herein had not failed to receive any application, had not  

failed to act within the period of 30 days (as he had written a  

letter  calling  for  information),  had  not  malafidely  denied  the  

request  for  information,  had  not  furnished  any  incorrect  or  

misleading information,  had not  destroyed any information and  

had  not  obstructed  the  furnishing  of  the  information.   On  the  

contrary,  he  had  taken  steps  to  facilitate  the  providing  of  

information by writing the stated letters.  May be the letter dated  

11th April,  2007  was  not  written  within  the  period  of  30  days  

requiring respondent No.2 to furnish details of the period for which  30

Page 31

such information was required but the fact remained that such  

letter  was written and respondent No.2 did not even bother  to  

respond to the said enquiry.  He just kept on filing appeal after  

appeal.   After  April  4,  2007,  the  date  when the  appellant  was  

transferred  to  Akola,  he  was  not  responsible  for  the  acts  of  

omissions and/or commission of the office at Nanded.

29. Another aspect of this case which needs to be examined by  

the Court is that the appeal itself has not been decided though it  

has  so  been  recorded  in  the  impugned  order.   The  entire  

impugned  order  does  not  direct  furnishing  of  the  information  

asked  for  by  respondent  No.1.   It  does  not  say  whether  such  

information was required to be furnished or not or whether in the  

facts of the case, it was required of respondent No.2 to respond to  

the letter dated 11th April, 2007 written by the Department to him.  

All  these  matters  were  requiring  decision  of  the  Commission  

before  it  could  recommend  the  disciplinary  action  against  the  

appellant, particularly, in the facts of the present case.

30. All  the  attributable  defaults  of  a  Central  or  State  Public  

Information Officer have to be without any reasonable cause and  

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persistently.  In other words, besides finding that any of the stated  

defaults have been committed by such officer,  the Commission  

has to further record its opinion that such default in relation to  

receiving of an application or not furnishing the information within  

the  specified  time  was  committed  persistently  and  without  a  

reasonable cause.  Use of such language by the Legislature clearly  

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  32

Page 33

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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