Punjab High Court RTI Judgement- Penalty Provisions

C.W.P. NO. 1924 OF 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P. NO. 1924 OF 2008
Date of Decision: 8.2.2008
Ramesh Sharma and another
...Petitioners
versus
The State Information Commission, Haryana and others.
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M.KUMAR
HON'BLE MR. JUSTICE T.P.S.MANN
Present: Dr. Balram Gupta, Senior Advocate with
Mr. Pankaj Sharma, Advocate
for the petitioners.
M.M.KUMAR, J.
The short question raised in the instant petition is whether a State
Information Commission could impose penalty under Section 20(1) of the Right
to Information Act, 2005 (for brevity, 'the Act'). The instant petition is directed
against order dated 16.10.2007 (P-1) passed by the State Information
Commission, Haryana (for brevity, `the Commission'), imposing a penalty of Rs.
19,250/- by invoking the provisions of Section 20(1) of the Act for 77 delay in
furnishing the information in accordance with mandatory provisions of subsection
(1) of Section 7 of the Act.
Brief facts of the case are that applicant-respondent No.3 made an
application dated 16.10.2006 for seeking specified information from the
petitioner. However, information was not furnished to the respondent No.3. On
1.2.2007 only a part of information was given and the supplementary information
was made available to him on 14.2.2007. After waiting for some time, applicantrespondent
No.3 had filed an appeal before the Commission on 1.12.2006, who
relegated him to file an appeal before the First Appellate Authority prior to
approaching the Commission. Accordingly, he filed the first appeal on 2.1.2007
before the Vice-Chancellor of the University with the grievance that he was not
supplied the required information. The University had constituted the First
C.W.P. NO. 1924 OF 2008 2
Appellate Authority on 2.3.2007 under the Act. Consequently, the applicantrespondent
No.3 approached the Second Appellate Authority again on
20.2.2007. The petitioner filed the reply before the Second Appellate Authority
on 23.7.2007 (P-2) raising preliminary objection that applicant-respondent No.3
should have approached the First Appellate Authority in the first instance,
eventually the Commission allowed the appeal filed by applicant-respondent
No.3 vide order dated 1.8.2007 and issued direction to the petitioners to allow
applicant-respondent No.3 to inspect the record. The needful was done by the
petitioners as per the direction issued. It was thereafter the Commission issued
a show-cause notice (P-3) to the petitioner, asking the petitioner as to why a
penalty @ Rs. 250/- for each day of delay subject to maximum of Rs. 25,000/- in
supplying the information be not imposed. The Commission initiated
proceedings under Section 20(1) of the Act. The petitioner filed his reply dated
1.10.2007 (P-4) to the show-cause notice. The Commission after detailed
examination recorded the finding imposing penalty on the petitioner, the
operative part of the order dated 16.10.2007 reads thus:-
“After hearing the respondent and perusal of the record, it is
held that respondent has not been able to show that he had acted
diligently or delay occurred due to reasonable cause. In fact, SPIO
has acted in most casual manner in processing the application with
the result that there has been a delay of 77 days in furnishing the
information. A perusal of the record show that the application was
sent by SPIO in original to the concerned branch without any
instructions for obtaining the information from them. SPIO took no
notice of the fact no information had been sent by the concerned
branch till 4.12.2006. Even after the receipt of information on
4.12.2006, it was only on 1.02.2007 that partial information was
furnished to the appellant where the information was due to be
furnished latest by 16.11.2006 under sub section (1) of Section 7 of
the Act. Thus, there has been delay of 77 days in furnishing the
information. Respondent has not been able to show any
reasonable cause for this delay. Therefore, in exercise of powers
conferred under section 20(1) of the RTI Act, a penalty of Rs.
19,250/- for 77 days delay in furnishing the information in terms of
C.W.P. NO. 1924 OF 2008 3
sub-section (1) of Section 7 days is imposed on the respondent.
He shall deposit the penalty amount in the Commission's head of
Account 0070-Administrative Services-60-Other receipts, DDO
Code-0049 within 20 days of the receipt of this order under
information to the Commission.
Announced. To be communicated.”
Dr. Balram Gupta, learned Senior Advocate has made three
submissions before us. Firstly, he has submitted that sub-section (2) of Section
20 of the Act would not apply unless findings are recorded that the petitioner has
been persistently delaying the supply of information and that too without any
reasonable cause. According to learned counsel, it is not that in every case of
delay, penalty could be imposed by placing reliance on sub-section 2 of Section
20 of the Act. Secondly, he has submitted that the Commission could not have
proceeded against the petitioners without firstly training the public authority like
the petitioners as envisaged by Section 26 of the Act. According to learned
counsel it was incumbent upon the State Government to train the petitioner by
encouraging their participation in the development and organisation of
programmes as envisaged by Section 26(1) (a) of the Act. Learned counsel has
insisted that in the absence of any such programmes, having been organised to
train the Public Information Officer like the petitioner, the Commission should
have taken a lenient view by sparing the petitioner from imposition of such a
penalty. Learned counsel has lastly submitted that no second appeal was
maintainable without first filing. The first appeal before the authority constituted
by the Kurukshetra University.
We have thoughtfully considered the respective submissions made
by the learned counsel and are unable to accept the same. It would be
appropriate to refer to the provisions of sub-section (1) of Section 20 of the Act
which reads thus:-
“20(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
C.W.P. NO. 1924 OF 2008 4
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.”
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.
A plain reading of sub-section (1) of Section 20 of the Act makes it
obvious that the Commission could impose the penalty for the simple reasons of
delay in furnishing the information within the period specified by sub-section (1)
of Section 7 of the Act. According to sub-section (1) of Section 7 of the Act, a
period of 30 days has been provided for furnishing of information. If the
information is not furnished within the time specified by sub-section (1) of
Section 7 of the Act then under sub-section (1) of Section 20 of the Act, public
authorities failing in furnishing the requisite information could be penalised. It is
true that in cases of intentional delay, the same provision could be invoked but in
cases where there is simple delay the Commission has been clothed with
adequate power. Therefore, the first argument that the penalty under subsection
(1) of Section 20 of the Act could be imposed, only in cases where there
is repeated failure to furnish the information and that too without any reasonable
cause, is liable to be rejected. The Commission is empowered under subsection
(2) of Section 20 of the Act to recommend disciplinary action against
such State/Central Public Information Officer under the service rules applicable
C.W.P. NO. 1924 OF 2008 5
to such officers. However, the present is not the case of that nature because the
Commission has not been invoked under sub-section (2) of Section 20 of the
Act. Hence, the argument raised is wholly misconceived and is hereby rejected.
The second submission that lenient view should have been taken
on account of failure of the Government to organise any programme to train
public authorities as envisaged by Section 26 of the Act is equally without merit.
The Act has come in force in the year 2005 and the petitioners were required to
constitute the Public Information Officer or the appropriate authorities. The
petitioners could constitute the First Appellate Authority only on 2.3.2007, which
resulted in filing of second appeal before the Commission. The petitioner has
completely ignored the provisions of the Act and appears to have awaken only
after the applicant-respondent No.3 has asked for information and filed the first
appeal. The petitioners cannot avoid the mandatory provisions of sub-section 1
of Section 20 of the Act on the excuse that any training programme as envisaged
by sub-section (1) (a) of Section 26 of the Act has not been organised by the
Government encouraging participation of the petitioners in the development and
organisation of programmes. Therefore, we do not find any merit in the second
contention raised by the learned counsel.
The last contention that second appeal cannot be filed, does not
require any detailed consideration because a perusal of Section 19 (3) of the Act
shows that after waiting for a period of 90 days, the applicant seeking
information is entitled to invoke the power of Second Appellate Authority.
It has come on record that applicant-respondent No.3 had
originally filed application for obtaining information on 16.10.2006 before the
petitioner. The information was required to be furnished to him within a period of
30 days as per the provisions of Section 7(1) of the Act. The information was not
furnished to him and accordingly he filed an appeal before the Commission
which was Second Appellate Authority on 1.2.2006 apparently for the reason
that the First Appellate Authority was not constituted. However, the Commission
relegated the applicant-respondent No.3 to the First Appellate Authority and the
C.W.P. NO. 1924 OF 2008 6
First Appellate Authority could not furnish information within 30 days and
consequently he preferred further appeal. The First Appellate Authority itself
was constituted on 2.3.2007 and no first appeal was competent. Moreover, the
appeal was filed before the Commission on 20.2.2007 after awaiting period of 30
days from the date of filing the application on 16.10.2006. Even if the period of
90 days is applied which is prescribed for second appeal, the appeal was within
limitation. Therefore, the argument raised by the learned counsel cannot, thus,
be sustained and the same is also rejected.
In view of the above, there is no merit in the instant petition and the
same is hereby dismissed.
(M.M.KUMAR)
JUDGE
8.2.2008 (T.P.S.MANN)
mk JUDGE