7 Feb 2022 4:20 AM GMT
Upholding the order of the State Information Commission, the Jharkhand High Court recently held that the State Information Commission has the power to pass an order of compensation by resorting to the provision of Section 19(8)(b) of the Right to Information Act, 2005. Noting the difference between Public Authority and Public Information Officer, Justice Sujit Narayan Prasad held that the...
Upholding the order of the State Information Commission, the Jharkhand High Court recently held that the State Information Commission has the power to pass an order of compensation by resorting to the provision of Section 19(8)(b) of the Right to Information Act, 2005. Noting the difference between Public Authority and Public Information Officer, Justice Sujit Narayan Prasad held that the RTI Act specifically differentiates between Public Authority and Public Information Officer to the effect that the PIO is the designated officer designated by the Public Authority.
"Public Authority who is the custodian of the record and the designated Public Information Officer is required to provide information deriving from the custody of the Public Authority, and that is the reason the obligation has been cast upon the Public Authority as per the provision of Section 4 of the Act, 2005 to maintain all records," he added.
A writ petition was preferred by the State of Jharkhand, challenging an order by the State Information Commission imposing a penalty of Rs. 60,000 under Section 19(8) of the Right to Information Act has been imposed for not providing the information in time.
It is argued that the provision of the RTI Act for order of penalty can only be passed upon the Public Information Officer who can only be treated to be erring official in not supplying the information in a request made under Section 6 & 7 of the Right to Information Act, 2005.
Advocate Sanjoy Piprawal, appearing for the State Information Commission, submits that there is no error in awarding the penalty upon the concerned department as there has been a reference of 'Public Authority' under Section 19(8)(b) of the 2005 Act, on whom compensation can be imposed. He used the argument about the definition of Public Authority to submit that the Health Department of the State should be treated as a Public Authority, and thus penalty can be imposed.
The Court dwelled into the scope of the RTI Act 2005, which sets up a practical regime for the right to information for citizens to secure access to information under the control of public authorities, to promote transparency and accountability in the working of every public authority.
The Court read the definitions of 'Information' and 'Public Authority' given under the Act. It then noted,
"The "Public Authority" has been defined which means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes anybody owned, controlled or substantially financed, non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government."
Differentiating between 'Public Authority & 'Public Information Officer':
The Court then inquired into Section 19(8)(b), which requires the Public Authority to compensate the complainant for any loss or other detriment suffered. It observed that the phrase 'Public Authority' is to be examined by studying the difference between 'Public Authority' and 'Public Information Officer.' It observed,
"....because if the Public Authority and the Public Information Officer are treated to be the same as per the definition provided under the Act, 2005, then the issue about making the Public Information Officer liable for disbursement of compensation in favour of the information seeker will be said to be within jurisdiction but the consequence would be otherwise if the Public Authority will be different to that the Public Information Officer."
It read together with the definition of a Public Authority under Section 2(h) of the Act along with Section 4 and 5 to note that the Public Authority will be said to be the authority if established or constituted by the enforcement of the law or under the Constitution. In other words, the Public Authority, if found to be State within the meaning of Article 12 of the Constitution of India, the same would be said to be Public Authorities.
On the other hand, the Public Information Officer means the officer designated by the Public Authority to act.
The Court noted that the Act further suggests that the Public Information Officer if approached by the information seeker, must obtain the information from the custody of the Public Authority. After that, it would be supplied, if permissible, to the concerned information seeker. It noted,
"Therefore, the object of the Act, 2005 is casting obligation upon the Public Authority who is the authority constituted either under the Constitution or any enforcement of law either by the Parliament or by the State legislature or any body owned or financially aided by the State Government."
The Court found a clear distinction between the Public Authority and the Public Information Officer. Section 19(8)(b) and Section 20 provide the consequence in case of a non-supply or inadequate supply of information sought by the Information Commission; therefore, the Act provides the provision of compensation as also a penalty.
The Court noted that having answered the issue about the distinction between Public Authority and the Public Information Officer, the part of the order of liability of compensation is to be inflicted upon the Public Authority to compensate the complainant.
Power to impose Penalty under Section 20 of the Right to Information Act, 2005:
It further noted that the Act's object is to compensate the complainant by the Public Authority is because it is the Public Authority who is supposed to keep the document in safe custody. If the document is not found available, the public authority must pay the compensation. Simultaneously, the State Public Information Officer, the designated officer by the Public Authority, has also been cast some responsibility/accountability to provide the information sought by the information seeker. If there would be any negligence in the discharge of the aforesaid duty, the provision of penalty as a recommendation to the initiated departmental proceeding has been provided under Section 20(2). It observed,
"The provision of Section 20(1) provides that if the Information Commission will come to a conclusion that the information seeker has 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 the 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 Public Information Officer shall be given a reasonable opportunity of being heard before any penalty is imposed on him."
The Court observed that the provision of penalty under Section 20 had been inserted by way of deterrent provision so that in case of violation of the purpose and object of the Act, the penalty is to be imposed upon the concerned Public Information Officer either of the Central or the State Government, as the case may be. Still, prior to that, an opportunity of a hearing is required to be provided.
Case Title: The State of Jharkhand & Anr v. The Information Commissioner & Ors.
Citation: 2022 LiveLaw (Jha) 12
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