Matter of penalty is between the Commission and Erring Information Officer in which the petitioner/information seeker has no right, the Court said.
Holding that the penalty provisions under the Right to Information Act is discretionary, the Chhattisgarh High Court has observed that the matter of penalty to be awarded under the Act is between the Information Commission and erring Information Officer, and the information seeker cannot, as a matter of right, cannot claim audience in the penalty proceedings.
In this case, the Information Commission imposed a penalty of Rs.10,000 on an erring officer for causing a delay in providing the information sought by the information seeker. This order was challenged before the high court by the information seeker contending that maximum penalty of ₹25,000 ought to have been imposed as there was a delay of 15 months in supplying the information.
Penal provisions discretionary
Justice Sanjay K Agrawal dismissed the plea mainly relying on a decision of division bench of the Delhi High Court in the matter of Anand Bhushan v RA Haritash that had held that penalty prescribed under Section 20 of the Right to Information Act is discretionary in nature and not mandatory.
“The penalty proceedings are akin to contempt proceedings, the settled position with respect thereto 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 contempt petitioner has no role further in the contempt proceedings,” the court said.
Information seeker cannot resort to penalty proceedings
The court further observed that information seeker is only entitled for damages and cost, if any, as there is no provision in the Act of 2005 for payment of penalty or part thereof recovered from Erring Information Officer to the information seeker and therefore information seeker cannot as a matter of right claim audience in the penalty proceedings which are between the Commission and Erring Information Officer.
“Matter of penalty is between the Commission and Erring Information Officer in which the petitioner/information seeker has no right and legislature has made a special provision in the shape of Section 18 of the Act of 2005 for addressing complaint of aggrieved information seeker which is suggestive of the fact that the aggrieved information seeker cannot resort to the provisions contained in Section 20 of the Act of 2005,” the court said.
Delhi High Court view: Penalty is directory
In Anand Bhushan v RA Haritash, the division bench interpreted Section 20(1) as follows: "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.”
Himachal Pradesh HC view: Penalty either has to be imposed at the rate fixed or no penalty has to be imposed
The petitioner in the present case has relied on a Himachal Pradesh High Court judgment to contend that the penal provision is mandatory. In Sanjay Hindwan v State Information Commission, the division bench observed: “We find no provision in the Act which empowers the Commission to either reduce or enhance this penalty. If the Commission comes to the conclusion that there are reasonable grounds for delay or that the Public Information Officer (P.I.O.) concerned has satisfactorily explained the delay then no penalty can be imposed. However, once the Commission comes to the conclusion that the penalty has to be imposed then the same must be @ Rs.250/- per day and not at any other rate at the whims and fancy of the Commission. To this extent the petitioner is absolutely right. The penalty either has to be imposed at the rate fixed or no penalty has to be imposed.”
The Punjab and Haryana High Court has also followed the Himachal High Court view in this issue.