Dr.(Mrs.) Sarla Rajput vs Central Information ...
2009 Latest Caselaw 2425 Del

10

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 5204/2008

      DR.(MRS.) SARLA RAJPUT         .... Petitioner

                          Through   Mr. Subhash Oberoi, Adv.

                   versus

      CENTRAL INFORMATION COMMISSIONER & ORS. ... Respondent

                          Through   Ms. Usha Saxena, Adv. for C.P.
                                    Saxena, Adv. for CIC.
                                    Mr. R.K. Singh, Adv. with Ms. Deepa
                                    Rai, Adv. for R-2.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
          ORDER

% 02.07.2009

As per office noting respondent No.4, Ms. Suja Rose John has been

served. The respondents have not filed counter affidavit and there is no

appearance on behalf of respondent No.4. Respondent No.4 is accordingly

proceeded ex-parte.

2. Respondent No.4 had filed an application under Right to Information

Act, 2005. Dr. (Mrs.) Sarla Rajput, the petitioner herein was the Public

Information Officer, who processed the application and furnished reply. No

satisfied, the respondent No.4 preferred first appeal and then approached

WPC NO.5204-2008 Page 1 the Central Information Commission by way of second appeal.

3. The Central Information Commission by order dated 15th December,

2007 allowed the second appeal making observations against the stand

taken by the National Council for Educational Research and Training(NCERT

for short). By the same order dated 15th December, 2007, the Central

Information Commission also imposed a penalty of Rs.25, 000/- on the

petitioner under Section 20(1) of the Right to Information Act, 2005. The

relevant portion of the order dated 15th December, 2007, reads:-

"6. In the absence of the Appellant, The Commission heard the Respondents who insisted that they could not disclose the information asked for by the Appellant only because they had not been permitted to do so by the higher authorities. They wanted to bring to the commission's notice their published brochure containing the rules of their Department laying down that such information may be treated as confidential. Listening to them, it was obvious that they were completely oblivious of the fact that there was something in place now known as the Right to Information Act-2005. The Respondents kept on insisting that since they were officials they were bout by the rules contained in their published brochure. This, in fact, is the first time that the Commission has had to listen such a stand taken by the Respondents. It is all the more surprising for, now, the RTI-Act is more than two years old. The Commission takes grave objection to this stand of the Respondent and imposes a penalty of Rs. 25, 000/- on the PIO for what it considers willful suppression of facts under Section 20 (1) of the RTI-Act, which lays down as follows:

WPC NO.5204-2008 Page 2 "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 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:"

4. Section 20(1) of the Right to Information Act, 2005 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 WPC NO.5204-2008 Page 3 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."

5. Before imposing penalty of Rs. 25,000/- vide order dated 15th

December, 2007 reasonable opportunity of hearing was not granted to the

Public Information Officer i.e. the petitioner. No notice was issued to the

petitioner to explain her stand and justify her position. Proviso to Section WPC NO.5204-2008 Page 4 20(1) requires and mandates reasonable opportunity of being heard before

a public information officer is burdened with penalty. Further penalty

under Section 20(1) of the Act can be imposed when conditions mentioned

therein are satisfied. Penalty is not automatic or mandatory when an

appeal is allowed by the Central Information Commissioner.

6. The stand of the petitioner is that she had retired from services of

NCERT on 31st January, 2007 and she did not have any information about

pendency of the appeal before the Central Information Commission. It may

be also noted that personal penalty of Rs.25, 000/- has been imposed on

the petitioner and the said penalty is to be recovered as per the order

dated 15th December, 2007 from the salary of the petitioner and as per the

second order dated 23rd June, 2008 from the pension payable to the

petitioner.

7. In these circumstances, there is clear violation of proviso to Section

20(1) of the Right to Information Act, 2005. Order dated 15th December,

2007 imposing penalty of Rs. 25, 000/- on the petitioner cannot be

sustained. It is accordingly set aside.

8. Counsel for the Central Information Commission has drawn my

attention to order dated 23rd June, 2008. This order was passed pursuant to

an application for review made by NCERT. After order dated 15th December,

WPC NO.5204-2008 Page 5 2007 imposing penalty of Rs. 25,000/- was passed, a show cause notice

under Section 20(1) of the Right to Information Act, 2005 was issued to the

petitioner on 15th January, 2008. The Right to Information Act, 2005 under

Section 20(1) does not envisage a post decisional show cause notice. Show

cause notice has be issued before a penalty order is passed and before any

final findings are recorded for imposing penalty under Section 20(1) of the

Right to Information Act, 2005. In fact, the counsel for the petitioner

disputes the receipt of notice dated 15th January, 2008. In these

circumstances, I do not think that order dated 23rd June, 2007 can be

sustained. The said order is also set aside.

9. The matter is remanded back to the Central Information Commission

to decided the question whether any penalty should be imposed on the

petitioner under Section 20(1) of the Right to Information Act, 2005. The

petitioner will appear before the Central Information Commissioner on 10th

August, 2009 either in person or through a representative. The Central

Information Commissioner will re-examine the question whether any

penalty should be imposed upon the petitioner under Section 20(1) of the

Right to Information Act, 2005 without being influenced by the earlier

orders. It is clarified that this Court has not expressed any opinion on

merits.

WPC NO.5204-2008 Page 6 The petition is accordingly disposed of.

SANJIV KHANNA, J.

JULY 02, 2009 NA

WPC NO.5204-2008 Page 7