P.N.Praveen Kumar vs State Information Commissioner, ...
2021 Latest Caselaw 15881 Ker

WP(C) NO. 25864 OF 2011
                                     1

                                                                   CR
            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
       THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
                       WP(C) NO. 25864 OF 2011
PETITIONER/S:

            P.N.PRAVEEN KUMAR, AGED 38 YEARS, S/O.NARAYANAN
            NAIR, OREETHA NIVAS, KOTTOOR P.O.,
            (VIA)NEDUVANNUR, KOZHIKODE DISTRICT.
            BY ADV SRI.V.N.RAMESAN NAMBISAN

RESPONDENT/S:

    1          STATE INFORMATION COMMISSIONER, KERALA, PUNNEL
               ROAD, THIRUVANANTHAPURAM, PIN-695 039.


    2          SANTHOSH KUMAR, S/O.LATE DIVAKARA MENON,VIYYUR
               MANATT HOUSE, P.O.MOOLAD, KUNNARAMVALLI, (VIA)
               NEDUVANNUR, KOZHIKODE DISTRICT-673 003.


           BY ADVS.
           SRI.K.N.GOVINDANKUTTY MENON
           SRI.V.B.PREMACHANDRAN
           SRI.M.AJAY, SC, STATE INFORMATION COMMN



        THIS    WRIT   PETITION     (CIVIL)    HAVING    COME    UP    FOR
ADMISSION       ON   02.08.2021,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 25864 OF 2011
                                2

                                                                   CR
                P.V.KUNHIKRISHNAN, J
           -------------------------------
               W.P.(C)No.25864 of 2011
          --------------------------------
        Dated this the 02nd day of August 2021

                          JUDGMENT

The petitioner was working as Village

Officer, Avidanalloor Village Office. The 2nd

respondent submitted Ext.P1 to the petitioner on

03.07.2020 for getting certain information as per

Right to Information Act, 2005 ("the Act" for

short). The petitioner received Ext.P1 on

08.07.2010. Thereafter the petitioner sent a

letter on 31.07.2010 requesting the 2nd respondent

to pay the required fee and produce the challan

receipt. The challan submitted by the 2nd

respondent was received in the Village Office on

12.08.2010. Thereafter the petitioner sent the 2nd

letter on 19.08.2010, in which it is stated that

the 2nd respondent has either to collect the WP(C) NO. 25864 OF 2011

information sought personally from the Village

Office or to provide a stamped envelope for

sending the details. Aggrieved by the same, the

2nd respondent submitted Ext.P3 before the 1st

respondent. The main grievance of the 2nd

respondent in Ext.P3 are the following:

1) The stamped cover need not be submitted by the

petitioner.

2) It is a deliberate attempt to delay.

The 1st respondent after hearing the petitioner

passed Ext.P4 order. Relevant portion of the

order is extracted hereunder:

5. The Commission observed that the petitioner requested for information vide application dated 03.07.2010 and it was received by the SPIO on 08.07.2010. the petitioner was asked to remit fee for 17 pages vide letter dated 31.07.2010.

Accordingly the petitioner remitted fees of Rs.34/- in the treasury and the challan receipt was sent to the SPIO on 07.08.2010 and the same was received by the SPIO on 12.08.2010. But the WP(C) NO. 25864 OF 2011

SPIO vide letter dated 19.08.2010 asked the petitioner to appear in person in the Village Office to receive the information or send the post cover with required stamp to receive the information. This action of the SPIO is not justifiable under the provisions of the RTI Act. The information requested consisted of only 17 pages, which could have been easily sent to the petitioner by post. The Commission observe that the information has not been provided yet even after the intervention of the Commission.

6. Therefore Commission order that the information requested by the petitioner should be provided to him within seven days of receipt of this order, free of cost u/s 7(6) of the RTI Act and report compliance to the Commission. The amount of Rs.34/- levied, as fees from the petitioner should be refunded to him within seven days. Hence the Commission order to issue notice u/s 20(1) of the RTI Act to the SPIO, Sri.P.N.Praveen, Kottoor Village Officer, Kozhikode for not providing the information to the petitioner in time after remitting the fee. He should submit his explanation within seven days of receipt of the notice.

2. Thereafter, the 1st respondent initiated

proceedings under Section 20 of the Right to

Information Act. The petitioner submitted Ext.P5 WP(C) NO. 25864 OF 2011

explanation before the 1st respondent. After going

through Ext.P5 explanation, the 1st respondent

passed an order imposing a penalty on the

petitioner. Ext.P7 is the order. Relevant portion

of Ext.P7 is extracted hereunder:

The SPIO Shri.P.N.Praveen was present for hearing on 20.08.2011 and he was heard in person. The SPIO submitted that the information was furnished to the petitioner on 24.11.2010 as per the order of the Commission. But the SPIO could not submit any reasonable cause for the delay. So the Commission observe that for the RTI application dated 8.7.2010, complete information was not provided to the petitioner in time, even though he remitted the required fee and sent the receipt to the SPIO. The SPIO did not act diligently. He could not offer any reasonable cause for not providing the information in time.

Therefore the Commission order to impose penalty of Rs.10,000/- on the SPIO Sri.P.N.Praveen, Village Officer, Kottor Village for not providing the information to the petitioner in time. He shall remit the amount to the District Treasury, Kozhikode under the Head of Account "0070-60-800-36-Receipts under Right WP(C) NO. 25864 OF 2011

to Information Act-2005" within 15 days of receipt of this order and report compliance to the Commission, failing which the amount shall be recovered from his salary of the ensuing month or shall be recovered by attachment and sale of the movable or immovable properties belonging to him. The Secretary of the Commission shall issue copy of the order to Shri P.N.Praveen."(emphasis supplied)

3. Aggrieved by Exts.P4 and P7 this Writ

Petition is filed.

4. Heard the learned counsel for the

petitioner and the learned Standing Counsel for

the 1st respondent.

5. Learned counsel for the petitioner

submitted that even if the allegation in Ext.P3

submitted by the 2nd respondent is accepted in

toto, the 1st respondent ought not to have passed

an order under Section 20(1) imposing penalty.

The learned counsel relied on the judgments in

Manohar s/o. Manikrao Anchule vs. State of

Maharashtra and another : (2012) 13 SCC 14, WP(C) NO. 25864 OF 2011

Chandramohanan Nair R. v. State Information

Commissioner and Others : 2018(5) KHC 707 and

Joseph P.J. vs. Kerala State Information

Commission and another : 2020 KHC 4128. The

learned counsel submitted that the prerequisite

for imposing penalty under Section 20(1) of the

Right to Information Act is not made out in this

case and therefore Ext.P7 order is unsustainable.

6. On the other hand, the learned Standing

Counsel supported Exts.P4 and P7 orders. The

learned Standing Counsel submitted that the

petitioner supplied information only after Ext.P4

order. The learned Standing Counsel takes me

through the relevant portion of Exts.P4 and P7.

Learned Standing Counsel submitted that it is a

clear case in which the petitioner obstructed in

not furnishing the information required and

therefore the 1st respondent is justified in

passing an order under Section 20(1) of the Right WP(C) NO. 25864 OF 2011

to Information Act. The learned counsel also

submitted that there is ample evidence to impose

a penalty under Section 20(1) of the RTI Act.

7. The short point to be decided is whether

there are grounds to impose a penalty as per

Section 20(1) of the Right to Information Act.

For better understanding, Section 20(1) of the

Right to Information Act is extracted below:

20. Penalties:-

(1) Where the Central Information Commission or 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 WP(C) NO. 25864 OF 2011

impose a penalty or 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.

8. There are certain prerequisites for

imposing penalty under Section 20(1) of the Act.

As per Section 20(1), the Central Information

Commission or 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, WP(C) NO. 25864 OF 2011

(i)without any reasonable cause, refused to

receive an application for information or

(ii)has not furnished information within the

time specified under sub-section (1) of

Section 7 or

(iii)mala fidely denied the request for

information or

(iv)knowingly given incorrect, incomplete or

misleading information or

(v)destroyed information which was the subject

of the request or

(vi)obstructed in any manner in furnishing the

information, the commission can impose a

penalty.

Only in these 6 eventualities, the Commission can

impose a penalty under Section 20(1) of the Act.

9. The apex court in Manohar vs. State of WP(C) NO. 25864 OF 2011

Maharastra (supra) observed like this:

15. The State Information Commissions exercise very wide and certainly quasi-judicial powers. In fact their functioning is akin to the judicial system rather than the executive decision-making process. It is a settled principle of law and does not require us to discuss this principle with any elaboration that adherence to the principles of natural justice is mandatory for such Tribunal or bodies discharging such functions.

16. The State Information Commission has been vested with wide powers including imposition of penalty or taking of disciplinary action against the employees. Exercise of such power is bound to adversely affect or bring civil consequences to the delinquent. Thus, the provisions relating to penalty or to penal consequences have to be construed strictly. It will not be open to the Court to give them such liberal construction that it would be beyond the specific language of the statute or would be in violation of the principles of natural justice.

17. The State Information Commission is performing adjudicatory functions where two parties raise their respective issues to which the State Information Commission is expected to WP(C) NO. 25864 OF 2011

apply its mind and pass an order directing disclosure of the information asked for or declining the same. Either way, it affects the rights of the parties who have raised rival contentions before the Commission. If there were no rival contentions, the matter would rest at the level of the designate Public Information Officer or immediately thereafter. It comes to the State Information Commission only at the appellate stage when rights and contentions require adjudication. The adjudicatory process essentially has to be in consonance with the principles of natural justice, including the doctrine of audi alteram partem. Hearing the parties, application of mind and recording of reasoned decision are the basic elements of natural justice. It is not expected of the Commission to breach any of these principles, particularly when its orders are open to judicial review. Much less to Tribunal or such Commissions, the courts have even made compliance with the principle of rule of natural justice obligatory in the class of administrative matters as well.

From the above dictum and also on going through

Section 20(1) of the Act, it is clear that the

responsibility of the State Information

Commission is an adjudicatory function. It is also WP(C) NO. 25864 OF 2011

to be noted that, the apex court in Union of India

vs. Namit Sharma [(2013 10 SCC 359] observed that the

Information Commission discharges an administrative

function, and not a judicial function. Therefore, the

commission can impose a penalty only if the 6

conditions mentioned in Section 20(1) of the Act are

available. The Commission cannot add or subtract

anything to the above condition precedents mentioned

in Section 20(1) of the Act for imposing penalty.

When there is reasonable cause for the refusal to

receive an application for information, the

Commission cannot take action. Unless there is a

blatant violation of Section 7(1) of the Act, there

cannot be an imposition of penalty under Section

20(1) of the Act. Similarly, denial of a request for

information alone is not sufficient to impose a

penalty under Section 20(1) but denial of the request

for information with mala fide intention is

necessary. Similarly, furnishing incorrect,

incomplete, or misleading information alone is not

sufficient, but if there is incorrect, incomplete WP(C) NO. 25864 OF 2011

or misleading information supplied knowing the same

to be incorrect, incomplete or misleading is

necessary for taking action under Section 20(1) of

the Act. Yet another ground to take action under

Section 20(1) is when the information is destroyed,

which was the subject matter of the request. The

penalty can also be imposed, if there is an

obstruction in any manner in furnishing

information. Therefore, mere misconduct or

negligence on the part of the State Public

Information Officer or Central Public Information

Officer is not sufficient to impose a penalty under

Section 20(1) of the Act. Only in the eventualities

stated in Section 20(1) of the Act, the penalty can

be imposed.

10. The point to be decided is whether the

conduct of the petitioner will attract a ground to

impose a penalty under Section 20(1) of the Act.

The admitted facts in the case are that the

2nd respondent submitted an application on WP(C) NO. 25864 OF 2011

03.07.2010 as evidenced by Ext.P1 which was

received by the petitioner on 08.07.2010. It is

also an admitted fact that the petitioner sent a

letter on 31.07.2010 for paying the required

challan fee. It is also an admitted fact that the

2nd respondent paid the amount and the challan was

submitted before the petitioner on 12.08.2010.

Instead of supplying the information thereafter

the petitioner sent a letter on 19.08.2010 asking

the 2nd respondent to appear in person to collect

the information or to send a stamped envelope for

sending information. In Ext.P4 the 1st respondent

stated that "...But the SPIO vide letter

19.08.2010 asking the petitioner to appear in

person in the Village Office to receive the

information or send the post cover with required

stamp to receive the information. This action of

the SPIO is not justifiable under the provisions

of the RTI Act." It is not clear from Ext.P4, how

the action of the SPIO is not justifiable under WP(C) NO. 25864 OF 2011

the provisions of the RTI Act. Of course the

petitioner ought not to have sent the 2nd letter

on 19.08.2010 with a request to forward the

stamped envelop. But in that letter itself, it is

stated that the 2nd respondent can collect the

information directly. Whether sending a letter

on 19.08.2010 to collect the information

personally or to send a stamped envelope for

forwarding the information will give a cause of

action to initiate proceedings under Section

20(1) of the RTI Act is the question. As I stated

earlier, to initiate an action under section

20(1) of the RTI Act certain conditions are to

comply. According to my opinion, simply because

the petitioner sent a letter dated 19.08.2010,

requesting to collect it personally or to send a

stamped envelop to forward the information is not

grave misconduct on the part of the petitioner to

initiate an action under Section 20(1) of the RTI

Act. It is to be noted that the second letter was WP(C) NO. 25864 OF 2011

on 19.08.2010 and the application for the

information itself was received only on

08.07.2010. If the period as per Section 7(3)(a)

of the Act is excluded, it cannot be said that

the second letter is not within the time

specified under Section 7(1) of the Act. In the

letter dated 19.08.2010 it is clearly stated that

the 2nd respondent can collect the information

directly from the office.

11. According to the learned Standing Counsel

for the 1st respondent, the petitioner is not

acted in accordance with Section 7(3) of the RTI

Act. Section 7(3) only says that where a decision

is taken to provide information on payment of any

further fee representing the cost of providing

the information, the Central Public Information

Officer or the State Public Information Officer,

as the case may be, shall send an intimation to

the person making the request, giving the details WP(C) NO. 25864 OF 2011

of further fees representing the cost of

providing the information as determined by him,

together with the calculations made to arrive at

the amount in accordance with the fee prescribed

under sub-section (1), requesting him to deposit

that fees, and the period intervening between the

despatch of the said intimation and payment of

fees shall be excluded for the purpose of

calculating the period of thirty days referred to

in that sub-section. Section 7(3)(b) says about

the details to be mentioned in the intimation,

including the details of appellate authority,

time limit etc.

12. The 2nd respondent has no case that he was

not aware of the appellate jurisdiction. He has

no such grievance in Ext.P3. He submitted the

appeal in time as evidenced by Ext.P3 appeal.

After going through Section 7(3)(a) and (b) also,

according to me, there is no grave misconduct on WP(C) NO. 25864 OF 2011

the part of the petitioner. Therefore, according

to me an action under Section 20(1) of the RTI

Act is not necessary in the facts and

circumstances of the case. Therefore, Exts.P4 and

P7 can be set aside.

Therefore the Writ Petition is allowed.

Exts.P4 and P7 are set aside. No cost.

Sd/-

P.V.KUNHIKRISHNAN JUDGE rkc WP(C) NO. 25864 OF 2011

APPENDIX OF WP(C) 25864/2011

PETITIONER's EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 3.7.2010.

EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGMENT CARD FOR SENDING THE ABOVE LETTER RETAINED BY THE OFFICE.

EXHIBIT P3 TRUE COPY OF COMPLAINT DATED 30.8.2010 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.

EXHIBIT P4         TRUE   COPY    OF   THE   NOTICE    DATED
                   22.11.2010    ISSUED    BY    THE     1ST
                   RESPONDENT.
EXHIBIT P5         TRUE COPY OF EXPLANATION ON 15.12.2010

SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE RELEVANT EXTRACT OF THE ANNUAL REPORT PUBLISHED BY THE 1ST RESPONDENT FOR THE YEAR 2007-08.

EXHIBIT P7 TRUE COPY OF THE ORDER OF 1ST RESPONDENT DATED 20.8.2011 IN COMPLAINT NO.784(2)/2010/SIC.