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Orissa High Court

Minati Mishra vs The State Information Commissioner on 14 March, 2024

Author: Murahari Sri Raman

Bench: Murahari Sri Raman

             IN THE HIGH COURT OF ORISSA AT CUTTACK
                         W.A. No. 1873 of 2023

   Minati Mishra                               ....           Appellant

                             -versus-
   The State Information Commissioner,         ....        Respondents
   Odisha and Others

  Advocates appeared in this case:

   For Appellant             :        Mr. Pravash Chandra Mohapatra
                                                           Advocate

   For Respondent(s)         :          Mr.B.K. Dash, Advocate (R/1)
                                         Mr. Akhand, Advocate (R/2)


   CORAM:
   THE CHIEF JUSTICE
   MR. JUSTICE MURAHARI SRI RAMAN

                             JUDGMENT

14.03.2024 Chakradhari Sharan Singh, CJ.

1. A short question which the present intra-Court appeal involves is as to whether penalty can be imposed or not in exercise of power under Section 20 of the Right to Information Act, 2005 (in short, „RTI Act‟) on an appellate authority under the RTI Act by the Central Information Commission or the State Information Commission, and whether such penalty can be imposed only on the Central Public Information Officer W.A. No. 1873 of 2023 Page 1 of 8 (CPIO) or the State Public Information Officer (SPIO). Section 20 of the RTI Act reads thus:

"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 W.A. No. 1873 of 2023 Page 2 of 8 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."

(Underscored the emphasis)

2. It is not in dispute that the appellant herein was not the Public Information Officer (PIO). The State Information Commissioner, Odisha, by an order dated 24.04.2023 imposed upon the appellant penalty of Rs.15,000/-, treating her as to be Ex-Public Information Officer. Putting to challenge the said order of the State Information Commissioner, the appellant preferred a writ petition before this Court giving rise to W.P.(C) No.20436 of 2023 on various grounds including the ground that she was not given adequate opportunity to present her case before the State Information Commissioner.

3. A learned Single Judge of this Court dismissed the writ application with a finding that notices were served upon the appellant but she did not appear before the State Information Commissioner and, therefore, the order of the State Information Commissioner imposing penalty invoking Section 20 of the RTI Act could not be said to be in violation of the principles of natural justice.

4. The order dated 06.07.2023 passed by the learned Single Judge in W.P.(C) No. 20436 of 2023 is under challenge in the present intra-

Court appeal. Learned Counsel appearing on behalf of the appellant has heavily relied on the language used in Section 20 of the RTI Act to contend that the said provision does not stipulate imposition of penalty on the appellate authority and such power to impose penalty can be exercised only against the Central Public Information Officer (CPIO) or the State Public Information Officer (SPIO).

5. Mr. Akhand, learned counsel appearing on behalf of respondent No.2 defending the order passed by the learned Single Judge has submitted that it is an admitted position that the appellant had failed to discharge her duty of appointing a designate Public Information Officer (PIO). He has taken us to the definition of „public authority‟ falling under Section 2(h) of the RTI Act and has submitted that since the appellant was holding the post of Headmistress of the Government Girls‟ High School, Unit-4, Bhubaneswar, penalty could be imposed upon her in exercise of the power under Section 20 of the RTI Act. He has also drawn the Court‟s attention to sub-section 5 of Section 5 of the RTI Act and has submitted that since, because of the appellant the information could not be supplied to respondent No.2, imposition of penalty by the State Information Commissioner is justified.

6. Mr. B.K. Dash, learned counsel representing the respondent No.1-State Information Commissioner, Odisha does not dispute the legal position, as is evident from the language of Section 20 of the RTI Act itself, that penalty cannot be imposed on the appellate authority in exercise of the said power. He, however, submits that no such plea was taken before the State Information Commissioner or in W.A. No. 1873 of 2023 Page 4 of 8 the writ petition before the learned Single Judge that the appellant was the appellate authority under the RTI Act.

7. It is noteworthy at this juncture that our attention has been drawn to a communication dated 16.07.2011(Annexure-3) issued by the Inspector of Schools, Khurda Circle, Khurda, and which is addressed to the Headmaster/ Headmistress of all Govt./Aided/Block Grant High Schools, which reads as under:

"Sub- Appointment of P.I.O. and First Appellate Authority. Ref- S & M E Deptt. Letter No. 13235 dt. 6.7.11.

Sir/Madam As per order No-04 dated-31.05.2011 of Hon'ble information commission and letter No- 13235 dated-06.07.2011 of Govt. of Orissa School and Mass Education Deptt, Bhubaneswar, the Headmaster/ Headmistress of all High schools and senior most teacher are here by appointed as First Appellate Authority and P.I.O of the respective Schools.

You are therefore requested to act as First Appellate Authority and senior most teacher of your School to act as P.I.O as per R.T.I Rule. Name of the First Appellate Authority and P.I.O may please be intimated within 7 days.

This may be treated as most urgent."

8. Learned counsel appearing on behalf of respondent No.2 also does not dispute the fact that being the Headmistress of the school, she could not has been treated to be the Public Information Officer (PIO). It is apparent from the said communication dated 16.07.2011 that it was a decision of the Government of Odisha, School and Mass Education Department that the Headmaster/Headmistress of W.A. No. 1873 of 2023 Page 5 of 8 such High Schools shall be the First Appellate Authority and the senior most teacher, the Public Information Officer of the respective schools. It is trite that the penal a statute has to be read strictly. On close reading of Section 20 of the RTI Act, it can be easily discerned that the Central Information Commission or the State Information Commission has power to impose penalty on Central Public Information Officer or State Public Information Officer and no other authority under the RTI Act. The reliance placed by the learned counsel for respondent No.2 on sub-sections 4 and 5 of Section 5 of the RTI Act is misconceived. Sub-sections 4 and 5 of Section 5 of the RTI Act read thus:

"(4) The Central Public Information Officer or State Public Information Officer, as the case may be, may seek the assistance of any other officer as he or she considers it necessary for the proper discharge of his or her duties.

(5) Any officer, whose assistance has been sought under sub-section (4), shall render all assistance to the Central Public Information Officer or State Public Information Officer, as the case may be, seeking his or her assistance and for the purposes of any contravention of the provisions of this Act, such other officer shall be treated as a Central Public Information Officer or State Public Information Officer, as the case may be."

9. It is evident on reading of the above provisions, the Central Public Information Officer or the State Public Information Officer may seek assistance of any other Officer, in exercise of his function under sub-section 4 of Section 5, as he or she considers necessary for proper discharge of his or her duties. In the context of sub-

section 4, sub-section 5 provides that if any Officer, whose assistance has been sought under sub-section 4, shall be under obligation to render all assistance to the Central Public Information Officer or the State Public Information Officer, as the case may be, and for contravention of any of the provisions of the Act, such officer, whose assistance has been sought, shall also be treated as the Central Public Information officer or the State Public Information Officer, as the case may be.

10. A plain reading of sub-sections 4 and 5 of Section 5 of the RTI Act leads us to the only irresistible conclusion that a person who is required by the Central Public Information Officer (CPIO) or State Public Information Officer (SPIO) to render assistance for furnishing information under the RTI Act, such person shall be treated as the Central Public Information Officer (CPIO) or the State Public Information Officer (SPIO), and if he or she does not render assistance on demand by the Public Information Officer under sub-section 4, since he or she is to be treated to be a Public Information Officer, the penal provision under Section 20 of the RTI Act may apply to him/her. It is not the case here that any assistance was sought by the Public Information Officer from the appellant and, therefore, she was to be treated as Public Information Officer within the meaning of sub-section 5 of Section 5 of the RTI Act.

11. We are of the definite opinion, based on reading of Section 20 and Section 5(5) of the RTI Act that the State Information W.A. No. 1873 of 2023 Page 7 of 8 Commissioner could not have exercised power under Section 20 of the Act, by imposing penalty upon the appellant who was the appellate authority under the RTI Act as the Central Information Commission or the State Information Commission is not vested with such power.

12. Accordingly, the order dated 24.04.2023 passed by the State Information Commissioner, Odisha in Complaint Case No.96 of 2022 is hereby set aside. Consequently, the order dated 06.07.2023 passed by the learned Single Judge in W.P.(C). No. 20436 of 2023 is also set aside.

13. The appeal is, accordingly, allowed. There shall be no order as to costs.

(Chakradhari Sharan Singh) Chief Justice (M.S. Raman) Judge SK Jena/Secy Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack.