IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6th DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.32842 of 2012 (GM-RES) C/W WRIT PETITION Nos.32840 & 32841 OF 2012 IN W.P.NO:32842/2012 BETWEEN:
Vasanth Rao S/o Late U.L.Ananda Rao, Aged about 59 years, PIO & General manager (Finance), Bangalore Metro Rail Development Corporation Limited, BMTC Complex, Shanthi Nagar, Bangalore. ... Petitioner (By Smt. Sumana Baliga M, Advocate) AND:
1. Karnataka Information Commission, Rep. by its Secretary, 2nd Floor, M.S. Building, Bangalore-560001.
2. P.R.Ramesh, Former Mayor, Bangalore Mahanagara Palike, No.144, Lalbag Fort Road, Parvathipura, Bangalore-560004.
3. State of Karnataka, Represented by its Secretary, DPAR, Vidhana Soudha, Dr.Ambedkar Veedi, Bangalore-560001. ... Respondents (By Sri.G.B.Sharath Kumar, Adv., for R1; Sri.Puttige R Ramesh Adv., for R2; Sri.Vasanth V Fernandes, HCGP for R3) IN W.P.NO:32840/2012 BETWEEN:
Vasanth Rao S/o Late U.L.Ananda Rao, Aged about 59 years, PIO & General manager (Finance), Bangalore Metro Rail Development Corporation Limited, BMTC Complex, Shanthi Nagar, Bangalore. ... Petitioner (By. Smt. Sumana Baliga M, Advocate) AND:
1. Karnataka Information Commission, 2nd Floor, M.S. Building, Bangalore-560001. Rep.by its Secretary, 2. P.R.Ramesh, Former Mayor, Bangalore Mahanagara Palike, No.144, Lalbag Fort Road, Parvathipura, Bangalore-560004. ... Respondents (By Sri.G.B.Sharath Kumar, Adv., for R1; Sri.Puttige R ramesh Adv., for R2) IN W.P.NO:32841/2012 BETWEEN:
Vasanth Rao S/o Late U.L.Ananda Rao, Aged about 59 years, PIO & General manager (Finance), Bangalore Metro Rail Development Corporation Limited, BMTC Complex, Shanthi Nagar, Bangalore. ... Petitioner (By. Smt. Sumana Baliga M, Advocate) AND:
1. Karnataka Information Commission, 2nd Floor, M.S. Building, Bangalore-560001. Rep.by its Secretary, 2. P.R.Ramesh, Former Mayor, Bangalore Mahanagara Palike, No.144, Lalbag Fort Road, Parvathipura, Bangalore-560004. ... Respondents (By Sri.G.B.Sharath Kumar, Adv., for R1; Sri.Puttige R ramesh Adv., for R2) These writ petitions are filed under Articles 226 and 227 of Constitution of India, praying to quash the show cause notice/order dated 21.04.2011 passed by the respondent in KIC/8659/PTN/2010, KIC/8658/PTN/2010 and KIC/8642/PTN/2010 respectively vide Annexure-E and etc.
These petitions are coming on for ‘preliminary hearing in ‘B’ group’ this day, the Court made the following:
ORDER Smt. Sumana Baliga M, learned counsel for petitioner in W.P.No.32842/2012 filed a memo duly signed by the petitioner, who is also present before the Court. In the memo, she prays that petitioner is not pressing the prayer No.4(a) to declare Rule 3(2), of Karnataka Right to Information (Constitution of Benches) Rules 2006 ultra-vires the Right to Information Act, 2005 may be dismissed as not pressed.
Memo is placed on record.
In view of the memo, prayer No.4(a) is dismissed as not pressed.
2. W.P.Nos.32842/2012, 32840/2012 and 32841/2012 are filed by the petitioner for writ of certiorari to quash the shows cause notice/order dated 21.04.2011 and 24,08,2011 respectively and to quash the orders dated 22.02.2012 and 06.06.2012 respectively passed by the 1st respondent-Commission in KIC/8659/PTN/2010, KIC/8658/PTN/2010 and KIC/8642/PTN/2010 respectively vide Annexures-E, F, G and J respectively.
3. It is the case of the petitioner that the Bangalore Metro Rail Corporation Limited (for short, ‘BMRCL’) is a Company registered under the Companies Act. The petitioner is working as a General Manager (Finance) in BMRCL. As per the provisions of Section 5 of Right to Information Act, 2005(for short, RTI Act), he was appointed as a Public Information Officer at BMRCL and he is performing his duties strictly in accordance with the provisions of the RTI Act made therein from the date of his appointment. It is not the intention of the petitioner to avoid any of the provisions of the RTI Act or to create any hindrance to the applicants who are seeking for the information under RTI Act but only to safeguard himself from paying illegal and outrageous cost which is imposed on him as a penalty.
4. He would further contend that the 2nd respondent filed an application dated 21.04.2010, seeking for certified copy of the agreement and other relevant documents pertaining to PPP (Public Private Partnership) initiatives for construction of Swastik Station by M/s. Abhishek Developers (P) Limited, BMRCL. On 19.06.2011, the petitioner sent the information by post along with covering letter No.BMRCL/PIO/RTI/2010-11-1581 to the address mentioned in the RTI application and he had given the reply for the RTI application vide Annexure-A and there was no intention to harass or to cause unnecessary loss to the 2nd respondent. On 16.03.2012, the 2nd respondent files a first appeal seeking for very same information provided to him vide annexure-B along with the copy the order dated 22.02.2012. The petitioner was shocked to know that the 2nd respondent had preferred a complaint before the 1st respondent and initiated proceedings in KIC/8659/COM/2010, KIC/8658/COM/2010 and KIC/8642/COM/2010 respectively against him and levied penalty of Rs.10,000/- has been imposed. On enquiry, it was found that 2nd respondent, on 16.07.2011 had preferred an application under Section 18(1) of the RTI Act before the respondent alleging that the petitioner has not provided the information sought by him and prays for imposing penalty. The respondent-State in turn takes the application dated 02.07.2010 and issued summons on 06.04.2011 to the petitioner to appear before the Commission on 21.04.2011. There is a delay of nine months in issuing the summons to the petitioner. It is further specifically contended that the petitioner has not received any show cause notice. Hence, he was neither present nor sent his representative on or before 21.04.2011 before the 1st respondent to the proceedings of KIC/8659/COM/2010, KIC/8658/COM/2010 and KIC/8642/COM/2010 respectively.
5. It is further case of the petitioner that on perusal of documents pertaining to KIV/8659/PTN/2010, KIV/8658/PTN/2010 and KIV/8642/PTN/2010 was come to the knowledge of the petitioner that, on 21.04.2011 the 1st respondent has taken the complaint filed under Section 18(1) of the RTI by the 2nd respondent and directed the petitioner to provide the information free of cost and issued show cause notice as to why penalty should not be imposed upon him and adjourns the case to 24.08.2011. The respondent just passed the impugned order as per annexure-E but does not communicate the same to the petitioner even though the 1st respondent usually send all his orders by post to the concerned parties and if the 1st respondent before its proceedings is from Bangalore call him over the telephone why he has not present before the Commission and directs him to be present before it.
6. It is further case of the petitioner that from the documents that on 24.08.2011, the 1st respondent considers the absence of the petitioner to the proceedings seriously and gave one more chance to comply with the order and adjourned the case to 22.02.2012. The respondent passed the order as per Annexure-F assuming that the petitioner has received the order as per Annexure-E. It is further contended that on 22.02.2012, the 1st respondent holds that the petitioner has not complied with its orders as per Annexures- E and F and has not provided the information to the 2nd respondent even after the delay of twenty months and imposes the penalty of Rs.10,000/- and directed the Company Secretary to ensure that the petitioner remit the same to the Head of Account 00070-60-118-00-03 penalties under the Act to the Government exchequer in five installment from his salary and gives liberty to the 2nd respondent to prefer the first appeal under Section 19(1) of RTI Act in compliance of the order passed by the Hon’ble Supreme Court in Civil Appeal No.10787- 10789/2011.
7. It is further case of the petitioner that in compliance of the order passed, the 2nd respondent preferred the 1st appeal before the First Appellate Authority and the petitioner came to know about the case. There are other two cases in which the similar orders have been passed by the 1st respondent as per Annexures-E, F and G and the petitioner filed an application to recall the orders imposing the penalty. On 06.06.2012, the 1st respondent dismissed the recall application holding that notice was served upon the petitioner as one Mr.B. Narayana Swamy has given the endorsement to the petitioner on 09.04.2012 that he had sent the notice by speed post and hence, the order imposing the penalty cannot be recalled. In the meanwhile, the First Appellate Authority, takes the First Appeal filed by the 2nd respondent as appeal No.5/2012 and issued notice to the 2nd respondent to attend before him on 17.04.2012. The appellant/2nd respondent admits that he had shifted his residence from the address given in the application. The First Appellate Authority passed an order dismissing the appeal and upholding the arguments forwarded by the PIO. In compliance of the order dated 17.04.2012, by the First Appellate Authority, the petitioner provides the information to the 2nd respondent on 05.05.2012 which was acknowledged by the 1st respondent as per annexure-J. 2nd respondent has not disputed the order of First Appellate Authority and it has reached the finality, hence he was not made party. Therefore, the petitioner is before this Court for the relief sought for in all the writ petitions.
8. The 1st respondent filed a statement of objection in W.P.No.32842/2012 and did not file objections in other two writ petitions and sought to justify the order passed by the 1st respondent- Commission. In the entire statement of objections, nowhere stated how petitioner was served the notice issued by the Commission.
9. I have heard learned counsel for parties to the lis.
10. Smt. Sumana Baliga M, learned counsel for the petitioner would contend that the impugned orders passed by the 1st respondent as per annexure-E, F, G and J in the writ petitions are utter violation of principle of natural justice and cannot be sustained. She would further contend that the petitioner has complied with the provisions of RTI Act and send the information by post to the address available in the application. Admittedly, the 2nd respondent has not communicated about the change of address to the petitioner, hence, it cannot be held as the petitioner has not provided the information. Hence, imposing penalty against the petitioner without opportunity being heard cannot be sustained and impugned order passed by the 1st respondent-Commission is utter violation of Section 20 of RTI Act. She would further contend that no notice was served to the petitioner as contemplated under the provisions of Rule 10 of Karnataka Right to Information Act, 2005. Therefore, she sought to allow the writ petitions.
11. Per contra, learned counsel for respondent No.1 and learned counsel appearing for respondent No.2 sought to justify the impugned order passed by the 1st respondent.
12. Having heard learned counsel for the parties, it is undisputed fact that the petitioner was appointed as a General Manager (Finance) in BMRCL and he was also appointed as a Public Information Officer at BMRCL performing his duties strictly in accordance with the provisions of the RTI made therein from the date of his appointment. When the 2nd respondent made an application seeking certified copies of the agreement and other related documents pertaining to PPP (Public Private Partnership) initiative for construction of Swastik Station by M/s Abhishek Developers (P) Limited, BMRCL. The information was sent to the address mentioned in the application filed by the 2nd respondent, but the 2nd respondent changed his address to different place without intimating the same to the petitioner and filed a complaint against the petitioner before the 1st respondent under Section 18(1) of the RTI Act alleging that the petitioner has not provided the information sought by him and prays for imposing penalty. The respondent-State issued notice to the petitioner on 06.04.2011 to appear before the Commission on 21.04.2011 by speed post. Since, the petitioner was absent when the case was called on 21.04.2011, the 1st respondent directed the petitioner to provide the information within 15 days, free of cost, through RPAD, under intimation to the Commission and Commission also directs the respondent therein (petitioner herein) to show cause within 30 days why action should not be taken against him under Section 20(1) of the RTI Act to levy penalty of Rs.250/- per day to a maximum of Rs. 25,000/- for the delay in providing the required information to the petitioner therein.
13. Again the matter was posted on 24.08.2011. According to the Commission, notice was served, the respondent has not appeared. The 1st respondent considered the absence of the petitioner to the proceedings seriously and has given one more chance to comply with the order and adjourned the case to 22.02.2012. When the matter was posted on 22.02.2012, the 1st respondent- Commission proceeded to impose penalty of Rs.10,000/- for non furnishing information and non appearance of petitioner.
14. On careful perusal of the Annexures-A, E, F, G, J, in the writ petitions, the 1st respondent does not depict that notice issued by the Commission through speed post served on the petitioner. It is specific case of the petitioner that before passing adverse orders against him, no notice was served on the petitioner. Though the 1st respondent- Commission filed an objection contending that notice was issued to the petitioner through speed post, but no material is produced before the Court for having received the same by the petitioner. In the absence of any records produced by the 1st respondent i.e., notice served on the petitioner and an opportunity was provided to the petitioner, imposing penalty without serving notice to the petitioner and directing the petitioner to furnish information is utter violation of principal of natural justice.
15. As per Rule.10 of Karnataka Right to Information Act specifies:
Service of notice by Commission: Notice to be issued by the State Information Commission may be served in any of the following modes, namely:
i) Service to the party itself;
ii) By hand delivery (dusty) through process server;
iii) By registered post with acknowledgment due; or iv) Through Head of Office or department v) By Fax;
vi) By e-mail 16. In spite of prescribing six modes for service of notice to the party, the 1st respondent failed to do the same. Though Sri. Sharath Gowda, learned counsel for 1st respondent sought to justify the order stating that the Commission issued summons to the petitioner through speed post but no material is produced before the Court to show that the petitioner has been served. In the absence of any material document produced, the whole approach adopted by the 1st respondent by passing orders as per Annexures-E, F, G and J in the writ petitions cannot be sustained.
17. For the reasons stated above, I proceed to pass the following:
ORDER Writ petitions are allowed.
18. Impugned Orders passed by the 1st respondent-Commission on 21,04,2011, 24.08.2011, 22.02.2012 and 06.06.2012 as per Annexures-E, F, G and J in the writ petitions are hereby quashed. The matter is remitted to the 1st respondent for reconsideration afresh after giving liberty to both the petitioner as well as the 2nd respondent to file the response if any and 1st respondent is directed to pass appropriate order strictly in accordance with law.
19. The Petitioner and the 2nd respondent are hereby directed to appear before the 1st respondent on 26.08.2019 with a liberty to both the petitioner as well as the 2nd respondent to file the response if any.
Sd/-
JUDGE JS/-