The Public Information Officer/ vs The Tamil Nadu Information Commission on 6 January, 2010

[Cites 20, Cited by 25]

Madras High Court

The Public Information Officer/ vs The Tamil Nadu Information Commission on 6 January, 2010

2.In W.P.No.21441 of 2009, the Public Information Officer of Villupuram District Central Co-operative Bank Ltd., is the petitioner. He has come forward to challenge the notice, dated 7.9.2009, in which the petitioner was fined by the Commission for mala fide denial of an information for a sum of Rs.25000/- and also was recommended to the Registrar of Co-operative Societies to take severe disciplinary action against the officer concerned. This was on the ground that the public authority had not only denied the information and showed scant respect to the Information Commission by absenting himself from attending the enquiry and sending a lower lever officer of the Co-operative Department to attend the enquiry. It was also stated that the information asked for should be supplied in full to the applicant and delivered at his residence.

3.Pursuant to the said order, the petitioner Bank supplied the information to the second respondent and also produced an acknowledgment, dated 16.9.2009. They had also informed the Commission about the fact of having supplied the information free of cost and also produced the acknowledgment. They have only come forward to challenge the penalty and a further direction to take disciplinary action.

4.It is the case of the petitioner that the petitioner was not provided with any opportunity. The petitioner stated that he had to attend a review meeting of the bank on the same day. Therefore, a representation was made on the first day and when they sought for an adjournment, inspite of specific application, the order came to be passed imposing penalty contrary to the provisions of the Act. It was also stated that he had a meeting to attend, in which 500 officers from the entire District were summoned for finalisation the loan disbursement. Notice of motion was ordered on the writ petition on 22.10.2009 and an interim stay was granted on the same day.

5.In W.P.No.21165 of 2007, the petitioner is the Managing Director of the Tamil Nadu State Transport Corporation, Salem Division. He has come forward to challenge the order, dated 17.5.2007 in which the Information Commission imposed a maximum penalty of Rs.25000/- for providing an incomplete and vague reply by taking more than 100 days and not providing the information thereby delayed furnishing the information.

6.The ground taken against the impugned order was that the procedure under Section 20 of the Right to Information Act was not followed and no reasonable opportunity was given to him. The writ petition was admitted on 21.6.2007 and an interim stay was granted on the same day.

7.In W.P.No.21843 of 2007, the petitioner was the Commissioner of Mettupalayam Municipality and he had challenged the order, dated 30.5.2007, wherein and by which the Commissioner had recommended a maximum penalty of Rs.25000/- and also directed the Commissioner for Municipal Administration to suspend the petitioner and frame a charge under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

8.In that case, the petitioner had come up with a plea that he had a genuine reason for not appearing on 30.5.2007. An opportunity as contemplated under Section 20 of the RTI Act was not furnished. It was also stated that the petitioner was not heard on the quantum of penalty. It was finally stated that the applicant, who sought the information, himself had stated that he was no longer requires the information and sought withdrawal of his appeal before the Commission on realising the municipality did not have in its position the relevant documents. The writ petition was admitted on 12.10.2007 and an interim stay was granted.

9.In W.P.No.14030 of 2008, the petitioner is the Member Secretary of CMDA and had filed the writ petition challenging the order, dated 16.5.2008. By the said order, the petitioner was directed to pay a maximum penalty of Rs.25000/- and also to provide personal explanation from the petitioner. The writ petition was admitted on 17.6.2008 and an interim stay was also granted. The ground taken by the petitioner was that he was only holding an additional charge as a Chief Executive Officer only from 20.3.2008. Therefore, he was not responsible to pay any penalty. It was also stated that the information sought for by the applicant was in the custody of the Sub Collector, Kancheepuram. The penalty has been imposed without any enquiry. The petitioner was present before the Commission on 16.5.2008 and explained his absence. Seeking for personal explanation from the petitioner for his alleged delinquency is not provided under the provisions of the Act.

10.In W.P.No.11230 of 2008, the petitioner was the Chief Engineer (General) in the Corporation of Chennai, who is also the designated Public Information Officer with effect form 1.6.2007. He has come forward to challenge the order, dated 12.3.2008, under which the Commission had directed the Secretary to the Government, Municipal Administration and Water Supply Department to collect a maximum penalty of Rs.25,000/- from the petitioner for his disobedience of the tenets of the Right to Information Act. The Secretary to the Government was further directed to call for an explanation from the Public Information Officer and to proceed against him by framing charge under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules for dereliction of duty. It was also stated that the Commission should be informed about the collection of penalty and also framing of charges. Notice of motion was ordered on 30.4.2008 and an interim stay was granted on the same day.

11.The ground raised by the petitioner was that no reasonable opportunity was furnished in terms of the Act. The information sought for was also not available with him as it was taken away by the Vigilance Department. It was also orally submitted that there is no power on the Information Commission for giving any direction to take disciplinary action and to keep the officer to place under suspension.

12.All the five cases have raised a common issue and it involves the scope of imposition of penalty and power of the Commission either to direct action to be initiated under relevant disciplinary rules or to direct the concerned officers to be placed under suspension. Hence they were grouped together and a common order is passed.

13.As the issue raised here related to orders passed under Section 20 of the RTI Act, it is necessary to extract that provision. Section 20 of the RTI Act reads as under:

"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;

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." (Emphasis added)

14.Section 20(1) while empowering the Commission to impose penalty of Rs.250/- for each day till application is received or information is furnished subject to a maximum penalty not exceeding Rs.25000/-, also provides that the concerned officer should be given reasonable opportunity of being heard before any penalty is imposed on the said authority. The burden is also shifted on the concerned officer to prove that he had acted reasonably and diligently. Section 20(2) further empowers the Information Commission to decide that in case an information officer without any reasonable cause refused to receive an application or has not furnished information within the time provided or malafidely denied the request for information or knowingly given an incorrect, incomplete or misleading information or obstructed in furnishing the information, it can recommend for disciplinary action against such officer under the service rules applicable to him.

15.Undoubtedly, Section 20 is penal in nature. The section itself mandatorily provides for a reasonable opportunity to an information officer before inflicting him with any penalty or recommending for disciplinary action. While Sections 6 and 7 enables the information officer to dispose of the request made in an application, in case of their disobedience, the said Act enables the Information Commission to deal with such cases. The power of the Commission is provided under Section 18. Section 19 provides for an appeal. In case of refusal to furnish the information by the authority, the Information Commission can initiate an enquiry in respect of such refusal. Under Section 19, when an appeal is preferred, wherein an appropriate direction can be given for providing information, which is binding on the authorities concerned. It is only in cases, where the authorities have disobeyed the order of the Commission or there is specific finding that the obligation on the public authority was not performed in terms of Sections 6 and 7, the question of penalty or direction to take disciplinary action will arise.

16.In all these cases, the grievance of the petitioners was that they were not heard before the penalty was imposed and that there is no justification either to direct them to be placed under suspension or being recommended to their superiors to take disciplinary action under the relevant rules. In some of the cases, a defence was taken either about their non appearance before the Commission was due to pressing work elsewhere or that they had provided the relevant information to the applicants or that the applicants themselves have withdrawn the applications due to non availability of documents or that they had occupied their post only for a short while and that the incident had taken place before they were notified as an Information Officer.

17.In any event, a direction to recover the amount as penalty itself indicates that it is penal in nature and a further direction to take disciplinary action will result in their service career being jeopardised. Further, a day's delay involves penalty of Rs.250/- and a maximum penalty is fixed at Rs.25000/-. Therefore, the Commission has discretion to order penalties ranging from Rs.250/- to Rs.25000/-. But, in all the five cases, only maximum penalties were imposed on the petitioners. In some of the cases, direction to place them under suspension and to frame charges under the relevant service rules have also been recommended. In each of the case, the petitioners have some plausible defence to put forth. But no separate enquiries were conducted by the Commission.

18.Though Section 20 enjoins the Information Commission at the time of deciding any complaint or appeal and also to decide the question of penalty, a careful reading of the relevant provisions including first proviso to Section 20 will show that it obliges a reasonable opportunity of being heard on the question of penalty and in recommending initiation of disciplinary proceedings. It also requires the Commission to form an opinion about the conduct of an Information Officer. Therefore, it involves a separate action by the Commission against the officer concerned so that they can put forth their defence either about their bona fides or plead for minimum penalty.

19.When minimum and maximum penalties have been prescribed, the proportionality of such penalties can also be granted, which can be pleaded by any officer. Therefore, it obliges the Commission to pass a separate order after issuing separate show cause notice to the information officer so as to enable them to satisfy the Commission with their defence.

20.In one case, the writ petitioner was not the notified officer at the relevant time. But it is necessary that penalty should be imposed on a named officer, who was acting as the Information Officer at the relevant time. The imposition of penalty and recommendation for disciplinary action can be taken on several grounds including the grounds of delay, malafide denial, incorrect or incomplete or misleading information, etc. Therefore, in each of the cases, penalty has to be in proportion to the charge levelled against an information officer. Unless the officer concerned is personally notified with the proposal of the Commission to impose a maximum penalty together with a direction to recommend disciplinary action, imposition of penalty may not be legally valid. The impugned orders are thus liable to be set aside both on the grounds of procedural violation and also on the question of proportionality of the penalty.

21.The Supreme Court in Om Kumar v. Union of India reported in (2001) 2 SCC 386 dealt with the scope of judicial review over administrative action affecting fundamental freedoms. The following passages found in paragraphs 54, 59 and 68 may be usefully extracted below:

"54. Administrative action in India affecting fundamental freedoms has always been tested on the anvil of proportionality in the last fifty years even though it has not been expressly stated that the principle that is applied is the proportionality principle. For example, a condition in a licence issued to a cinema house to exhibit, at every show, a certain minimum length of approved films was questioned. The restriction was held reasonable (see R.M. Seshadri v. Distt. Magistrate Tanjore27). Union of India v. Motion Picture Assn.28 also related, inter alia, to the validity of licensing conditions. In another case, an order refusing permission to exhibit a film relating to the alleged obnoxious or unjust aspects of reservation policy was held violative of freedom of expression under Article 19(1)(a) (S. Rangarajan v. P. Jagjivan Ram29). Cases of surveillance by police came up for consideration in Malak Singh v. State of P&H30. Cases of orders relating to movement of goods came up in Bishambhar Dayal Chandra Mohan v. State of U.P.31 There are hundreds of such cases dealt with by our courts. In all these matters, the proportionality of administrative action affecting the freedoms under Article 19(1) or Article 21 has been tested by the courts as a primary reviewing authority and not on the basis of Wednesbury principles. It may be that the courts did not call this proportionality but it really was.

.....

59. But, in E.P. Royappa v. State of T. N.32 Bhagwati, J laid down another test for purposes of Article 14. It was stated that if the administrative action was arbitrary, it could be struck down under Article 14. This principle is now uniformly followed in all courts more rigorously than the one based on classification. Arbitrary action by the administrator is described as one that is irrational and not based on sound reason. It is also described as one that is unreasonable.

.....

68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as arbitrary under Article 14, the principle of secondary review based on Wednesbury principles applies.

22.Though in a given case, this Court can go into the proportionality of a punishment, under normal circumstance, if the court is of the opinion that if a punishment requires reconsideration, it should be remanded to the very same authority for reconsideration. This was made clear in Om Kumar's case (cited supra). The following passages found in paragraphs 70 and 71 may be usefully quoted below:

"70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India43 this Court referred to proportionality in the quantum of punishment but the Court observed that the punishment was shockingly disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India44 this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Ganayutham2.

71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as arbitrary under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment." (Emphasis added)

23.In the light of the above, the impugned orders in all the writ petitions will stand set aside. The Commission is hereby directed to give appropriate show cause notices to the petitioners. After hearing them on the question of penalty as well as on its recommendation to take disciplinary action against them, can pass an appropriate order. All the writ petitions will stand partly allowed and to the extent indicated above. However, the parties are allowed to bear their own costs. Consequently, connected MPs are closed.

vvk To

1.The Tamil Nadu Information Commission, 378, Anna Salai, Teynampet, Chennai-18.

2.The Secretary, The State of Tamianadu, Housing and Urban Development Department, Secretariat, Chennai-600 009.

3.The Member Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Road, Egmore, Chennai-600 008.

4.The Registrar, Tamil Nadu Information Commission, Old No.278, New No.379, Anna Salai, I Floor, Teynampet, Chennai-18.

5.The Secretary, The State of Tamilnadu, Municipal Administration & Water Supply Department, Secretariat, Chennai-1.

6.The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai 600 003

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