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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
The Public Information Officer/General Manger-in-charge, Villupuram District & Others
Versus
The Tamil Nadu Information Commission & Others
W.P.No.21441 of 2009, 21165 & 21843 of 2007, 14030 & 11230 of 2008 & M.P.Nos.1 & 2 of 2009, 1 & 2 of 2007, 1 & 1 of 2008
Decided on : 06-01-2010
(B)Right to Information Act, 2005 (22 of 2005)-Sec.20-Information-Right-Failure-Penalty-Discretion-Imposing penalty under the Right to Information Act, 2005 is penal in nature-The Information Commission is having discretion to impose appropriate punishment for default under the Act within the range provided under the Act.
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/-. Para 17
(C)Right to Information Act, 2005 (22 of 2005)-Sec.20-Information-Right-Failure-Penalty-Natural justice-Procedure-Sentence-Punishment-Defence-Proceeding to impose penalty under Sec.20 of the Right to Information Act, 2005 should be conducted separately-Before imposing penalty under Sec.20 of the Right to Information Act, 2005 against any officer, reasonable opportunity has to be afforded to him to state his defence-In the proceeding under Sec.20 of the Right to Information Act, 2005, the concerned officer is having the right to put forth his defence either about his bona fides or plead for minimum penalty.
……. Section 20 …… ….. 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. Para 18
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. Para 19
(D)Right to Information Act, 2005 (22 of 2005)-Sec.20-Information-Right-Failure-Penalty-Natural justice-Procedure-Intimation-Before imposing any penalty under Sec.20 of the Right to Information Act, 2005 and recommending departmental action against any officer, such officer should be personally notified about the proposed action by the Information Commission.
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. Para 20
(E)Right to Information Act, 2005 (22 of 2005)-Sec.20-Information-Right-Failure-Penalty-Natural justice-Procedure-Sentence-Punishment-Proportionality- The High Court, in its writ jurisdiction can go into the question of proportionality of the punishment imposed and pass suitable orders.
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. Para 22
Heard.
2. In W.P.No.21441 of 2009, the Public Information Officer of Villupuram District Central Cooperative Bank Ltd., is the petitioner. He has come forward to challenge the notice, dated 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 19. 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 210. 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 15. 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 26. 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 110. 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 15. 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 admitte
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