Anand Bhushan vs R.A. Haritash

Rajiv Sahai Endlaw, J.—This Intra Court appeal impugns the order dated 26th May, 2010 of the learned Single Judge allowing W.P. (C)

No. 3670/2010 preferred by the respondent. The respondent, at the relevant time was the Dy. Director of Education and Public Information

Officer of the Directorate of Education, Govt. of NCT of Delhi. The respondent had filed the writ petition impugning the order dated 14th April,

2010 of the Central Information Commission (CIC) imposing maximum penalty of Rs. 25,000/ - on the respondent, u/s 20(1) of the Right to

Information Act, 2005 for the delay of over 100 days in furnishing the information to the appellant. The Chief Secretary, Govt. of Delhi was

directed to recover the said amount from the salary of the respondent @ Rs. 5,000/- per month. The learned Single Judge, vide order impugned in

this appeal, reduced the penalty amount to Rs. 2,500/- recoverable from the salary of the respondent in ten equal monthly installments of Rs. 250/-

per month. The learned Single Judge held that the question of penalty is essentially between the Court and the respondent and did not really

concern the appellant who has been provided with the information. Yet another reason given for so reducing the penalty was that the respondent

had taken charge of the said post 14 days after the subject RTI application of the appellant had been filed.

Notice of this appeal was issued primarily on the ground, that the learned Single Judge, being of the view aforesaid, had decided the writ petition

even without issuing notice to the appellant, though the appellant had been impleaded as respondent in the writ petition. Hearing in this appeal was

commenced on 11th March, 2011 when the following order was passed:-

Heard Ms. Girija Krishan Varma, learned counsel for the appellant and the respondent in person. In course of hearing of this appeal, Ms. Verma

has raised the following contentions:-

(a) The learned single Judge has disposed of the writ petition without notice to the appellant, who had sought the information under the Right to

Information Act, 2005 on the ground that the question of penalty is essentially between the Court and the petitioner and does not really concern the

respondents which makes the order vulnerable as the exposition of law in the said manner is contrary to the spirit of the 2005 Act.

(b) If, the language employed u/s 20 of the 2005 Act, which deals with penalties, is appropriately read it would clearly convey that every day''s

delay shall invite penalty of Rs. 250/- with the rider that the said penalty shall not exceed Rs. 25,000/- and the first proviso deals with grant of

reasonable opportunity to bring the concept of natural justice and the second proviso requires reasonable diligence but if reasonable diligence is not

shown, discharging regard being had to the onus of proof as engrafted in the said proviso, it is obligatory on the part of the Commission to impose

penalty of Rs. 250/- per day. Elaborating the said submission, it is contended by her that certain days, delay may be explained and some days,

delay, if not explained, would invite the penalty which is mandatory because of the words used in Section 20 of the Act viz., ""shall impose penalty

(c) If there is penalty provision in the Act, the High Court in exercise of power of judicial review cannot reduce the said penalty unless a categorical

finding is recorded that reasonable explanation has been proffered/offered for certain days. Pyramiding the said contention, it is put forth by Ms.

Verma that the discretion by the Court is not attracted in exercise of power under Articles 226 or 227 of the Constitution of India unless the finding

with regard to reasonable explanation as recorded by the Commission is reversed.

(d) If the Court in exercise of power of judicial review is allowed to reduce the penalty that would frustrate the purpose of the Act which is a

progressive legislation to introduce transparency in democracy for the purpose of good governance. In view of the issues raised, we would like to

have the assistance of the learned Solicitor General in the matter. Let the matter be listed on 3rd May, 2011 at 2.15 pm. Ms. Zubeda Begum,

learned counsel for the State undertakes to apprise the learned Solicitor General about the order passed today. A copy of the order be given dasti

under signature of the Court Master to Ms. Zubeda Begum.

The matter was thereafter adjourned from time to time.

We have however recently vide our judgment dated 9th January. 2012 in LPA 764/2011 titled Ankur Mutreja v. Delhi University held that:

a) the Act does not provide for the CIC to, in the penalty proceedings, hear the information seeker, though there is no bar also thereagainst if the

CIC so desires;

b) that the information seeker cannot as a matter of right claim audience in the penalty proceedings which are between the CIC and the erring

information officer;

c) there is no provision in the Act for payment of penalty or any part thereof imposed/recovered from the erring information officer to the

information seeker;

d) the penalty proceedings are akin to contempt proceedings, the settled position wherein is that after bringing the facts to the notice of the Court, it

becomes a matter between the Court and the contemnor and the informant or the relator does not become a complainant or petitioner in contempt

proceedings.

The aforesaid judgment was brought to the attention of the counsel for the appellant. The counsel for the appellant has however besides orally

arguing the matter also submitted written submissions. Her arguments may be summarized as under:-

i) that the use of the word ""shall"" in Section 20(1) is indicative of, the imposition of penalty being mandatory, where the information officer has

refused to or delays in receiving the RTI application or when does not give or delays in giving the information sought; ii). that the presence of the

information seeker is essential not only for computing the penalty but also for establishing the default of the information officer;

iii) that the penalty proceedings u/s 20(1) are adversarial in nature;

iv) that the position of the information seeker, in penalty proceedings, is akin to that of public prosecutor;

v) that since Section 20(1) provides for a hearing to be given to the information officer, there can be no hearing without the information seeker; vi),

the second proviso to Section 20(1), putting the burden of proving that he acted reasonably and diligently, on the information officer is also

indicative of the penalty proceedings being adversarial in nature; if the information seeker was not to be a party to the said proceedings, the

question of onus/burden would not have arisen; the question of shifting the burden arises only in an adversarial situation; vii). that the role of CIC is

only that of an Adjudicator; viii). that exclusion of the information seeker from penalty proceedings would dilute the spirit of the Act; ix). that the

Act is not only about sharing of information and promoting transparency but is also intended to bring about accountability and taking away the right

of the information seeker to participate in the penalty proceedings is against the principle of accountability;

x) Section 23 of the Act bars the jurisdiction of Courts; the information seeker thus has no other remedy against the erring information officer.

The counsel for the appellant has also handed over a compilation of the following judgments:-

(i) Surya Dev Rai Vs. Ram Chander Rai and Others,

(ii) Nathi Devi Vs. Radha Devi Gupta,

(iii) The State of U.P. Vs. Raj Narain and Others,

(iv) Bhagat Singh Vs. Chief Information Commissioner and Others, &

(v) Sree Narayana College Vs. State of Kerala,

and of certain Articles, Parliamentary debates etc. on the Act.

We have in Ankur Mutreja (supra) given detailed reasons for the conclusions aforesaid reached therein and which cover contentions 6(ii) to

(viii) & (x) aforesaid of the counsel for the appellant herein and we do not feel the need to reiterate the same. We may only add that the role of the

CIC, under the Act, is not confined to that of an Adjudicator, The CIC under the RTI Act enjoys a dual position. The CIC, established u/s 12 of

the Act, has been, a) u/s 18 vested with the duty to receive and enquire into complaints of non-performance and non-compliance of provisions of

the Act and relating to access to records under the Act; b) empowered u/s 19(3) to hear second appeals against decision of Information Officer

and the First Appellate Authority; c) empowered, u/s 19(8) to, while deciding such appeals, to require any public authority to take such steps as

may be necessary for compliance of provisions of the Act; and, d) and is to, u/s 25 of the Act prepare annual report on the implementation of the

provisions of the Act, The CC thus, besides the adjudicatory role also has a supervisory role in the implementation of the Act.

The power of the CIC, u/s 20, of imposing penalty is to be seen in this light and context. A reading of Section 20 shows (as also held by us in

Ankur Mutreja) that while the opinion, as to a default having been committed by the Information Officer, is to be formed ''at the time of deciding

any complaint or appeal'', the hearing to be given to such Information Officer, is to be held after the decision on the complaint or the appeal. The

proceedings before the CIC, of hearing the Information Officer qua whom opinion of having committed a default has been formed and of

imposition of penalty, are in our opinion, in the exercise of supervisory powers of CIC and not in the exercise of adjudicatory powers. As already

held by us in Ankur Mutreja, there is no provision, for payment of penalty or any part thereof, to the information seeker. The information seeker

has no locus in the penalty proceedings, beyond the decision of the complaint/appeal and while taking which decision opinion of default having

been committed is to be formed, and at which stage the complainant/information seeker is heard.

The Supreme Court in Competition Commission of India Vs. Steel Authority of India Ltd. and Another, held that the Competition Commission

constituted under the Competition Act, 2002 discharges different functions under different provisions of the Act and the procedure to be followed

in its inquisitorial and regulatory powers/ functions is not to be influenced by the procedure prescribed to be followed in exercise of its adjudicatory

powers. In the context of the RTI Act also, merely because the CIC, while deciding the complaints/appeals is required to hear the

complainant/information seeker, would not require the CIC to hear them while punishing the erring Information Officer, in exercise of its

supervisory powers.

We may reiterate that the complainant/information seeker has the remedy of seeking costs and compensation and thus the argument of ''being

left remediless'' is misconceived. However ''penalty'' is not to be mixed with costs and compensation.

We are also of the view that the participation of the information seeker in the penalty proceeding has nothing to do with the principle of

accountability.

Needless to say that if the information seeker has no right of participation in penalty proceedings, as held by us, the question of right of being

heard in opposition to writ petition challenging imposition of penalty does not arise. We therefore hold that no error was committed by the learned

Single Judge in reducing the penalty without hearing the appellant.

That brings us to the question, whether the penalty prescribed in Section 20 of the Act is mandatory and the scope of interference with such

penalty in exercise of powers of judicial review under Article 226 of Constitution of India,

We may at the outset notice that a Division Bench of this Court in judgment dated 6th January. 2011 in LPA 782/2010 titled Central

Information Commission v. Department of Posts, inspite of the argument raised that that Single Judge ought not to have reduced the penalty

imposed by the CIC but finding sufficient explanation for the delay in supplying information, upheld the order of the Single Judge, reducing the

penalty. Though Section 20(1) uses the word ''shall'', before the words ''impose a penalty of Rs. two hundred and fifty rupees'' but in juxtaposition

with the words ''without reasonable cause, malafidely or knowingly or obstructed''. The second proviso thereto further uses the words, ''reasonably

and diligently''. The question which arises is when the imposition of penalty is dependent on such variables, can it be said to be mandatory or

possible of calculation with mathematical precision. All the expressions used are relative in nature and there may be degrees of, without reasonable

cause, malafide, knowing or reasonableness, diligence etc. We are unable to bring ourselves to hold that the aforesaid provision intends punishment

on the same scale for all degrees of neglect in action, diligence etc. The very fact that imposition of penalty is made dependent on such variables is

indicative of the discretion vested in the authority imposing the punishment. The Supreme Court in Carpenter Classic Exim P. Ltd. Vs. Commnr. of

Customs (Imports) and Another, was concerned with Section 114A, Customs Act, 1962 which also used the word ''shall'' in conjunction with

expression ''willful misstatement or suppression of facts''; it was held that provision of penalty was not mandatory since discretion had been vested

in the penalty imposing authority. Similarly in Superintendent and Remembrancer of Legal Affairs to Government of West Bengal Vs. Abani Maity,

the words ''shall be liable for confiscation'' in section 63(1) of Bengal Excise Act, 1909, were held to be not conveying an absolute imperative but

merely a possibility of attracting such penalty inspite of use of the word ''shall., It was held that discretion is vested in the court in that case, to

impose or not to impose the penalty. Once it is held that the quantum of fine is discretionary, there can be no challenge to the judicial review under

Article 226 of the Constitution, of exercise of such discretion, of course within the well recognized limits. If this Court finds discretion to have been

not appropriately exercised by the CIC, this Court can in exercise of its powers vary the penalty. In the facts of the present case, we find the

learned Single Judge to have for valid reasons with which we have no reason to differ, reduced the penalty. We, therefore do not find any merits in

this appeal and dismiss the same. No order as to costs.