Darbara Singh v. The State Information Commission, Haryanaand Ors

CWP-28057-2023 oooooooo1 2023:PHHC:160680o INoTHEooHIGHoCOURToOFoPUNJABo&oHARYANAoAT CHANDIGARH *** oooooooCWP-28057-2023 o Dateoofodecisiono:o14.12.2023 DarbaraoSingho ...oPetitionero Versus TheoStateoInformationoCommission,oHaryanaoandoothers ...oRespondents CORAM:o HON'BLEoMR.oJUSTICEoVIKASoBAHL Present:o Mr.NarenderoK.oSharma,oAdvocateofor Mr.oAshokoK.oSharma,oAdvocateoforotheopetitioner. Ms.oRajnioGupta,oAddl.A.G.oHaryana. VIKASoBAHL,oJ.(ORAL)

¶1This is a civil writ petition filed under Article 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari quashing / modifying the impugned order dated 10.07.2023 (Annexure P-6) passedobyorespondentono.1.o

¶2Learned counsel for the petitioner has submitted that vide application dated 24.02.2022 (Annexure P-1), the petitioner had sought information on 7 points and since the said information was not fully supplied, thus, the petitioner had filed the first statutory appeal and thereafter the second statutory appeal. The State Information Commission, Haryana, vide order dated 10.07.2023 (Annexure P-6), had disposed of the second statutory appeal without adjudicating the matter by giving vague directions. It is further submitted that the impugned order is in violation of the law laid down by this Court in CWP-17672-2023 titled as "Rajwinder Davinder Kumar 2023.12.17 11:19 Singh vs. State of Punjab and others" decided on 16.08.2023. It is prayed CWP-28057-2023 oooooooo2 2023:PHHC:160680o that at any rate, the impugned order dated 10.07.2023 (Annexure P-6) deserves to be set aside and the second statutory appeal filed by the petitioner deserves to be re-considered by the State Information Commission,oHaryana.

¶2Learned State counsel has submitted that the State Information Commission would re-consider the appeal and would decide the same, in accordance with law laid down by this Court in the case of Rajwinder Singho(supra).

¶3This Court has heard learned counsel for the parties and has goneothroughotheopaperobook.

¶4Before considering the facts of the present case, it would be relevant to reproduce the relevant portion of the judgment passed by this CourtoinoRajwinderoSingho(supra):- "8. This Court vide judgment dated 13.07.2023 passed in CWP-1877-2022 titled as "Gagnish Singh Khurana Vs. State of Punjab and others" hasoheldoasounder:- "13. It is a matter of settled law that quasi judicial authorities must record reasons in support of its conclusion and insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done but also appear to have been done and that recording of reasons is indispensable in the decision making process and the same facilitates the process of judicial review by the Superior Courts and it is also necessary to give reasons for sustaining the litigants' faith in the justice delivery system. It has further been repeatedly held that reasons so given in support of a decision must be cogent and clear and should not be "rubber stamp reasons". Reference in this regard may be made to the judgment of the Hon'ble Supreme Court in case titled as "M/s Kranti Associates Pvt. Ltd. & Anr. Vs. Sh. Masood Ahmed Khan & Others" reported as 2010(3) SCC (Civil) 852, in which it has beenoheldoasounder:- "xxxoxxxo

51.oSummarizingotheoaboveodiscussion,othisoCourtoholds: Davinder Kumar a. In India the judicial trend has always been to record CWP-28057-2023 oooooooo3 2023:PHHC:160680o reasons, even in administrative decisions, if such decisionsoaffectoanyoneoprejudicially.o b. A quasi-judicial authority must record reasons in supportoofoitsoconclusions.o c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be doneoitomustoalsooappearotoobeodoneoasowell. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasijudicialooroevenoadministrativeopower. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregardingoextraneousoconsiderations.o 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 evenobyoadministrativeobodies.o g. Reasons facilitate the process of judicial review by superioroCourts.o 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 life blood of judicial decision making justifying the principleothatoreasonoisotheosouloofojustice.o 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 sustainingotheolitigants'ofaithoinotheojusticeodeliveryosystem. j. Insistence on reason is a requirement for both judicial accountabilityoandotransparency.o 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.o 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 I attest to the accuracy and m. It cannot be doubted that transparency is the sine qua CWP-28057-2023 oooooooo4 2023:PHHC:160680o 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 Candoro(1987)o100oHarwardoLawoReviewo731-737). 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 (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".o o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".o xxxoxxx"o

¶14Reference may also be made to the judgment of the Hon'ble Division Bench of this Court in case titled as "Banarsi Das Cotton Mills (P) Ltd. Vs. State of Haryana and another", reported as 1997(1)oPLRo17,oinowhich,oitohasobeenoheldoasounder:- "xxxoxxxo

¶3Although the impugned order/notice has been challenged on various grounds, we are of the opinion that the same is liable to be quashed on the short ground it does not contain reasons. There can be no manner of doubt that while deciding the appeal the Higher Level Screening Committee acts as a quasi judicial authority and it is duty bond to record reasons in support of its decision. The recording of reasons and communication thereof is imperative for compliance of the principles of natural justice which must inform the proceedings of every quasi judicial body and even in the absence of a statutory provision or administrative instructions requiring recording of reasons in support of the orders, the quasi judicial authority must pass speaking orders so as to stand I attest to the accuracy and 4. In Testeels Ltd. v. N.M. Desai, Conciliation Officer, CWP-28057-2023 oooooooo5 2023:PHHC:160680o A.I.R. 1970 Gujarat 1 (F.B.), Full Bench of the Gujarat High Court held that the jurisdiction of the High Court under Article 226 and that of the Supreme Court under Article 136 of the Constitution of India cannot be stultified by administrative authorities by passing non-speaking orders.

¶5The requirement of recording of reasons and communication thereof by quasi judicial authorities has been emphasised in several judgments of the Supreme Court including a Constitution Bench Judgment in S.N. Mukherjeeov.oUnionoofoIndia,oA.I.R.o1990oS.C.o1984.

¶6Similar view has been expressed by a Division Bench of this Court in C.W.P. No. 10769 of 1995 (Haryana Cotton Mills P. Ltd. Tohana v. State of Haryana and Ors.), decidedoono8.12.1995.

¶7In view of the above legal position, we quash the rejection of the petitioner's appeal by the Higher Level Screening Committee and direct that Higher Level Screening Committee shall reconsider the appeal filed by the petitioner and pass a fresh order after giving opportunity of hearing to the petitioner. The High Level Screening Committee is further directed to decide the appeal afresh by passing a reasoned order within a period of one month after issuing notice to the petitioner for a specific date of hearing, on receipt of a copy of this order. The registry of this Court is directed to send a copy of this orderotoorespondentoNo.o2. xxxoxxx"

9.o This Court in another judgment dated 21.07.2023 passed in CWP-15500-2023 titled as "Gopal Krishan Gupta Vs. Central Information Commission and others", while dealing with a cryptic and non-speaking order passed by the Central Information Commissioner under Section 19(3)oreadowithoSectiono20oofotheoActoofo2005,ohadoobservedoasounder:- "5. Relevant portion of the order dated 28.02.2023 (Annexure P11) isoreproducedohereinobelow:o-o "The fact is that no final point-wise reply was provided on anyoofotheopointsotootheoappellantoasoperotheorecord. In view of the same, the CPIO is directed to provide a final consolidated reply on all the points as provided by the concerned custodiansowithino7odaysofromotheodateooforeceiptoofothisoorder.oDavinder Kumar I attest to the accuracy and Theoappealsoareodisposedoofoaccordingly."o CWP-28057-2023 oooooooo6 2023:PHHC:160680o

¶6A perusal of the above-said order would show that after considering the entire matter, the Information Commissioner was of the opinion that no final point-wise reply has been provided to the appellant as per the record and thus, had directed the CPIO to provide a final consolidated reply on all the points as provided by the concerned custodians within 7 days from the date of receipt of this order. However, instead of waiting for the reply, the Information Commissioner disposed of the appeal without final adjudication of the matter and that the said procedure is not in accordanceowitholaw.

¶7A perusal of Section 19 of the RTI Act would show that under sub-Section 3, an aggrieved person has a right to file the second appeal before the Central Information Commission or the State Information Commission and that, under sub-section (8), the Central Information Commission has been given several powers including the power requiring the public authority to compensate the complainant for any loss or detriment suffered or to impose any of the penalties provided under the Act. Section 19 of the RTI Act,oisoreproducedohereinobelow:o- "19. Appeal.—(1) Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be,oinoeachopublicoauthority:o Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient causeofromofilingotheoappealoinotime.o

(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from theodateoofotheoorder.

(3) A second appeal against the decision under sub-section

(1) shall lie within ninety days from the date on which theDavinder Kumar I attest to the accuracy and decision should have been made or was actually received, CWP-28057-2023 oooooooo7 2023:PHHC:160680o with the Central Information Commission or the State InformationoCommission: Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficientocauseofromofilingotheoappealoinotime.o

(4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be, shall give a reasonable opportunity of being heard to that third party.

(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer,oasotheocaseomayobe,owhoodeniedotheorequest.

(6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof as the case mayobe,ofororeasonsotoobeorecordedoinowriting.

(7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding.

(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the poweroto—

(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions ofothisoAct,oincluding—o

(i) by providing access to information, if so requested, in a particularoform;

(ii) by appointing a Central Public Information Officer or StateoPublicoInformationoOfficer,oasotheocaseomayobe;

(iii) by publishing certain information or categories of information;

(iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records;Davinder Kumar I attest to the accuracy and (v) by enhancing the provision of training on the right to CWP-28057-2023 oooooooo8 2023:PHHC:160680o informationoforoitsoofficials;

(vi) by providing it with an annual report in compliance withoclauseo(b)oofosub-sectiono(1)oofosectiono4;

(b) require the public authority to compensate the complainantoforoanyolossoorootherodetrimentosuffered;o

(c)oimposeoanyoofotheopenaltiesoprovidedounderothisoAct;

(d)orejectotheoapplication.

(9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of appeal, to the complainantoandotheopublicoauthority.

(10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure as may be prescribed.

¶8Section 20 of the RTI Act provides that in case, the Central Information Commission at the time of deciding any complaint or appeal, is of the opinion that the Central Public Information Officer has, without any reasonable cause, not furnished information within the time specified under subsection (1) of Section 7 or has malafidely denied the request for information etc., then, it is empowered to impose a penalty of two hundred and fifty rupees each day till the information is furnished. Section 20 of the RTIoActoisoreproducedoasounder:o- "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 fumishing the information, it shall 16 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 shallonotoexceedotwenty-fiveothousandorupees:oDavinder Kumar I attest to the accuracy and Provided that the Central Public Information CWP-28057-2023 oooooooo9 2023:PHHC:160680o Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heardobeforeoanyopenaltyoisoimposedoonohim:o 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,oasotheocaseomayobe.o

(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 mayobe,ounderotheoserviceorulesoapplicableotoohim."

¶9A conjoint reading of the above reproduced provisions would show that once a second appeal has been filed by an aggrieved person, then, after considering all the aspects, the matter is required to be finally adjudicated. In case, the Information Commissioner is of the opinion that the ingredients, as specified in Section 20 of the RTI Act are met, appropriate action is also required to be taken. In the present case, after prima facie holding in favour of the petitioner with respect to points No. (a) and (b) and after directing the CPIO to file a revised reply, the appeals have been disposed of by respondent No.2 without waiting for the said reply and without finally adjudicating the matter and thus, to the said extent, the impugned order deserves toobeosetoaside" The State Information Commissioner, Punjab, while adjudicating the second statutory appeal filed by the petitioner under Section 19(3) of the Act of 2005 was acting as a quasi judicial authority and was, therefore, required to adjudicate the case after considering the facts of the case, pleas raised by both the parties and was required toDavinder Kumar I attest to the accuracy and record reasons for rejecting the pleas of one party and accepting the CWP-28057-2023 oooooooo10 2023:PHHC:160680o pleas of the other party by passing a reasoned order. The order should have been self-explanatory and reasons given in the same should not have been rubber stamp reasons. The same has not been done in the present case and the impugned order passed is cryptic and non-speaking asohasobeenodetailedoinoparao7oofotheopresentoorder.o

¶10Keeping in view the abovesaid facts and circumstances, the present Civil Writ Petition is partly allowed and the impugned order dated

06.03.2023 (Annexure P-9) is set aside and the matter is remanded to the State Information Commissioner, Punjab for deciding Appeal Case No.452 of 2023 afresh after giving an opportunity of hearing to the contesting parties. The State Information Commissioner, Punjab, is directed to pass a speaking order dealing with the contentions raised by both the parties. The parties through their counsel are directed to appear beforeotheoStateoInformationoCommissioner,oPunjab,oono24.08.2023.

¶11It is, however, made clear that this Court has not given any final opinion on the merits of the case and it would be open to the State Information Commissioner, Punjab, to consider the case independently andoinoaccordanceowitholaw.

¶12This Court has found that in a large number of cases, the authorities including the first Appellate Authority {(while adjudicating the first statutory appeal under Section 19(1)} and the second Appellate Authority {(while adjudicating the second statutory appeal under Section 19(3)} under the Act, have been passing cryptic and non-speaking orders in violation of the judgments passed by the Hon'ble Supreme Court and various High Courts and also in violation of the mandate of the Act of 2005. It is, thus, found necessary to give the following directions to the first Appellate Authority and second Appellate Authority under the Act of 2005 to clearly specify the following at the time of finally adjudicating the case:-

i) The points on which the information is sought by the applicant as per his/heroapplicationofiledounderotheoActoofo2005.

ii)oTheopoint-wiseoreplyowithorespectotootheoinformationosought.

iii) A categorical finding as to whether the information on any of the points has been supplied or not and if supplied, the date on which it has beenosupplied.

iv) In case, it is the stand of the authorities from whom the information is sought that the information sought under a particular point is not to be supplied on account of any bar contained in any provisions of the Act of 2005 or for any other reason, then, after recording the said stand and after considering the submissions made by both the parties with respect to saidopoint/issue,oreturnoaofindingowithorespectotootheosaidoissue/point.Davinder Kumar I attest to the accuracy and v) Any other observation which the authority deems fit in the facts and CWP-28057-2023 oooooooo11 2023:PHHC:160680o circumstancesoofotheocaseotoobeorecorded.

¶13The Chief Secretary to the States of Punjab & Haryana and the Advisor to the Administrator, Chandigarh are directed to circulate the judgment passed in the present case i.e. CWP-17672-2023 titled as "Rajwinder Singh Vs. State of Punjab and others" and the judgment dated 13.07.2023 passed in CWP-1877-2022 titled as "Gagnish Singh Khurana Vs. State of Punjab and others" as well as the judgment dated

21.07.2023 passed in CWP-15500-2023 titled as "Gopal Krishan Gupta Vs. Central Information Commission and others", to all the authorities constitutedounderotheoActoforocomplyingowithotheosame." A perusal of the above said judgment moreso paragraph 12 of the said judgment would show that specific directions have been given to the First Appellate Authority and the Second Appellate Authority for passing speaking orders in which it should be clearly reflected that as to on what point the information is sought in the application under the Act of 2005 and pointwise reply which has been given by the PIO and categorical finding to the effect that as to whether information sought under a particular point is supplied or not and in case any information is not to be supplied on account of any bar contained in any provision, then record the said stand and give a finding after hearing both the parties. The question as to whether any action under Section 20 of the Act of 2005 or any fine is to be imposed isoalsootoobeoconsideredowhileodecidingotheosaidoappeal. In the present case, it is not in dispute that as per application dated 24.02.2022 (Annexure P-1), information on 7 points were sought. The State Information Commission in violation of the law laid down in the above said judgment and also other judgments which have been referred to in the abovesaid judgment, had disposed of the appeal vide order dated

10.07.2023 (Annexure P-6). The relevant portion of the said order is reproducedohereinbelow: Davinder Kumar 2023.12.17 11:19 "4.o The case has been considered carefully and record of the case file CWP-28057-2023 oooooooo12 2023:PHHC:160680o perused. Information sought by appellant and furnished by the respondent SPIO discussed in detail during the course of hearing. The Commission after the perusal of reply given by the respondent SPIO vide letter dated

07.07.2023 notes that information sought by appellant qua RTI Application dated 24.02.2022 has been furnished to the appellant by the respondent SPIO vide above referred letters but the appellant is not satisfied with the Information furnished to him. The Commission notes that appellant is alleging that the information furnished to him by the respondentoSPIOoisonotorelatedotoohisoRTIoApplication.o

¶5In view of above, the Commission gives following directions for decidingotheocase:-

(1) The respondent SPIO shall send an original duly sworn affidavit to the appellant with a copy to the Commission, stating therein that the complete information as per available record has been furnished to the appellant and no other Information relating to the RTI application dated 24.02.2022 is available in the records of the Public Authority. This may be done within fifteen days of receiptoofoorder.

(ii) Non-compliance of this order would attract penal proceeding under section 20 (1) of the RTI Act, 2005 against the respondent SPIO.

(iii)oTheoappealocaseoisoherebyodisposedooff. Announced.oToobeocommunicated." A perusal of the said order would show that neither the point on which the information was sought has been mentioned nor the pointwise reply of the authorities has been detailed nor any finding has been given with respect to the points which were contested. In the abovesaid order after observing that the petitioner is alleging that the information furnished to him is not related to his RTI application, the Commission has instead of adjudicating the matter, giving a finding as to whether the stand of the respondent or of the petitioner is correct or not, has given omnibus directions, which are also vague. Thus, the impugned order is in violation of settledolawoandodeservesotoobeosetoaside.

¶5Keeping in view the above said facts and circumstances, the CWP-28057-2023 oooooooo13 2023:PHHC:160680o present petition is partly allowed and the order dated 10.07.2023 (Annexure P-6) is set aside and the State Information Commission is directed to decide the appeal bearing the case no.4269 of 2022 in accordance with law and after taking into consideration the judgment passed by this Court in Rajwinder Singh's case (supra) and after hearing all the parties concerned, asoexpeditiouslyoasopossible,obyopassingoaospeakingoorder.o (VIKASoBAHL) oooooooooooooooooooJUDGE Decembero14,o2023. DavinderoKumar Whetherospeakingo/oreasoned Yes/No Whetheroreportable Yes/No