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Judgment
Z.A. Haq, J.—Heard Shri D.N. Kukday, the learned Advocate for the petitioner and Dr. Anjan De, the learned Advocate for the respondent No. 1. The respondent No. 2 is appellate authority, appearance on its behalf is waived.
Rule. Rule made returnable forthwith.
The petitioner-Corporation has challenged the order passed by the State Information Commission, on the application filed by the respondent No. 1 under Section 18 of the Right to Information Act, 2005 (hereinafter referred to as "the Act of 2005"). By the impugned order, the State Information Commission has directed the petitioner-Corporation to supply the photocopies of the documents as demanded by the respondent No. 1 after inspecting the records as per the order passed by the State Information Commission on 08-11-2012. The State Information Commission has further directed that the Joint Managing Director of the petitioner-Corporation shall cause conducting of enquiry by the competent officer in respect of the grievance of the respondent No. 1 about the delay caused by the officers in giving inspection to the respondent No. 1 and for the delay caused in supplying the photocopies of the documents to the respondent No. 1, as per the order passed by the State Information Commission on 08-11-2012.
Shri D.N. Kukdey, the learned Advocate for the petitioner has submitted that the inspection of all the records as required by the respondent No. 1 has been given to him as per the order passed by the State Information Commission on 08-11-2012. It is submitted that the respondent No. 1 has acknowledged the fact that he has inspected the records and the documents to that effect are available with the petitioner Corporation. It is further submitted that the photocopies of 4419 pages have been given to the respondent No. 1. The submission is that the grievance made by the respondent No. 1 in the application filed by him under Section 18 of the Act of 2005 is non existing and based on incorrect statements. It is further submitted that the State Information Commission while considering the application filed by the respondent No. 1 under Section 18 of the Act of 2005 has no power to direct the petitioner-Corporation to conduct the departmental enquiry against the concerned officers and to take appropriate disciplinary action against them and submit the report to the State Information Commission. Relying on the provisions of Section 20 of the Act of 2005, Shri D.N. Kukday, the learned Advocate for the petitioner has submitted that the State Information Commission, at the most, can recommend for disciplinary action against the State Public Information Officer as provided under Section 20(2) of the Act of 2005. It is submitted that, in the present case, the State Information Commission has directed the disciplinary action against the concerned officers without there being any adjudication on the point as to whether there was any lapse on the part of the concerned officers as laid down in Section 20(2) of the Act of 2005. It is further submitted that the State Information Commission has issued the direction for conducting the disciplinary enquiry, which power is not available with the State Information Commission and Section 20(3) of the Act of 2005 enables the State Information Commission only to recommend the disciplinary action against the State Public Information Officer. It is prayed that the impugned order be set aside and the application filed by the respondent No. 1 under Section 18 of the Act of 2005 be dismissed.
Shri Anjan De, the learned Advocate for the respondent No. 1 has submitted that the concerned officer avoided to give the inspection of the records as directed by the State Information Commission by the order dated 08-11-2012. The submission on behalf of the respondent No. 1 is that the entire records were not made available for inspection and the concerned officers made every possible attempt to frustrate the order passed by the State Information Commission on 08-11-2012. The grievance of the respondent No. 1 is that the photocopies of the documents as required by him are also not supplied till date.
Considering the grievance of the respondent No. 1 and the submissions made on behalf of the petitioner Corporation, the issue which requires consideration is as to whether the State Information Commission has the power to direct disciplinary enquiry against the concerned officers. The tenor of the impugned order shows that mandatory directions are given by the State Information Commission to the Joint Managing Director of the petitioner-Corporation to conduct disciplinary enquiry against the concerned officers who are responsible for causing delay in giving inspection of the record to the respondent No. 1 and to submit the report to the State Information Commission. In my view, the directions as given by the State Information Commission by the impugned order could not have been given without there being a preliminary enquiry in the matter and without there being sufficient material on the record before the State Information Commission on the basis of which the State Information Commission could have proceeded further as per Section 20(2) of the Act of 2005.
Section 18 of the Act of 2005 provides for the powers and functions of the Commission. Section 18(2) of the Act of 2005 lays down that the State Information Commission, if it is satisfied that there are reasonable grounds to enquire into the matter, it may initiate an enquiry in respect of it. Section 18(3) of the Act of 2005 provides for the powers of the State Information Commission which can be exercised by it while enquiring into the matter.
On conjoint reading of Section 18 and Section 20 of the Act of 2005, it can be said that the enquiry contemplated under Section 18(2) of the Act of 2005 has to precede the decision of the State Information Commission under Section 20(2) of the Act of 2005. In this background, it has to be held that the enquiry which is directed by the State Information Commission by the impugned order is a preliminary enquiry to find out the facts to enable the State Information Commission to proceed further with the enquiry as contemplated by Section 18(2) of the Act of 2005. The State Information Commission can conduct the enquiry of its own as provided by Section 18(2) of the Act of 2005 or considering the circumstances of the case may cause preliminary enquiry to be conducted by the competent authority which can be said to be a fact finding enquiry to enable the State Information Commission to take appropriate decision as to whether the Commission should proceed further with the enquiry under Section 18(2) of the Act of 2005 or not.
In view of the above, the impugned order has to be modified accordingly.
(i) The Joint Managing Director of the petitioner-Corporation shall cause the preliminary fact finding enquiry to be conducted on the complaint made by the respondent No. 1 to ascertain as to whether there is any delay in complying with the order passed by the State Information Commission on 08-11-2012 and to find out as to whether the delay, if any, is bonafide or deliberate.
(ii) The preliminary enquiry shall also deal with the grievance of the respondent No. 1 that the documents sought by the respondent No. 1 and as directed by the State Information Commission by the order dated 08-11-2012 have not been supplied.
(iii) The enquiry shall be completed till 31-1-2015.
(iv) Needless to say that the Enquiry Officer (Competent Officer) appointed for conducting the enquiry shall give notice to the respondent No. 1 and give him an opportunity to put forth his case.
(v) The report of the preliminary enquiry shall be submitted to the State Information Commission by 15-2-2015 and after receiving the copy of the preliminary report, the State Information Commission shall take further steps according to the provisions of Section 18 of the Act of 2005.
(vi) The respondent No. 1 and the petitioner-Corporation are at liberty to file appropriate applications/submissions before the State Information Commission after receiving the copy of the preliminary report.
(vii) The State Information Commission shall take appropriate decision after hearing the petitioner-Corporation and the respondent No. 1, as per the provisions of Sections 18 and 20 of the Act of 2005.
(viii) The submission is made on behalf of the petitioner-Corporation that the documents as required by the respondent No. 1 and as directed by the State Information Commission by the order dated 08-11-2012 are already supplied to the respondent No. 1. The respondent No. 1 disputes the submission made on behalf of the petitioner Corporation. The respondent No. 1 is permitted to raise his grievance before the Enquiry Officer in the preliminary enquiry and if required also before the State Information Commission after report of preliminary enquiry would be given to the State Information Commission.
The writ petition is partly allowed in the above terms. In the circumstances, the parties to bear their own costs.
In view of disposal of the writ petition, Civil Application No. 2190/2013 does not survive and is disposed of accordingly.