Friday, May 19, 2017

Delhi HC to CIC: Impose Fine as Per Law, Token Penalty for Delay Not Valid

Moneylife: New Delhi: Friday, May 19, 2017.
Can a Central Information Commissioner impose a penalty as per his whims and fancies? Early this week, the Delhi High Court slapped a show cause notice on the Central Information Commission (CIC), seeking an explanation for arbitrarily imposing a Rs5,000 penalty on a Public Information Officer (PIO) instead of going by Section 20 of the Right to Information (RTI) Act.  
The court stated, “Section 20 (of the RTI Act) mandates a penalty of Rs250 for each day’s delay subject to a maximum of Rs25,000…there is no concept of token penalty…once the explanation rendered by respondent is rejected, the CIC was obliged to impose the penalty in terms of Section 20.”
The court has issued a notice to the CIC and the CPIO to respond by 22nd September.  
The petitioner, Dinesh Pandey, referred to the Supreme Court decision in the case of Union of India Vs. Dharmendra Textile Processors, where the apex court, while dealing with the concept of levy of mandatory penalty provided under Central Excise Act, 1944, has held that “when the statutory provision provides for mandatory penalty, the authorities cannot impose lesser penalty when no discretion is available on quantum of penalty under the said statutory provisions”.
The petitioner also referred to two other decisions, of the High Court of Punjab and Haryana and High Court of Himachal Pradesh, which 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 and that the Public Information Officer (PIO) concerned has satisfactorily explained the delay then no penalty can be imposed. However once the Commission come to the conclusion that the penalty has to be imposed then the same must be @ Rs250 per day and not at any other rate at the whims and fancy of the Commission...”
There have been similar cases wherein the CIC has imposed a fine which does not adhere to Section 20 rule in the RTI Act. One of them pertains to Delhi-based RTI applicant, RK Jain, who filed an application at the Central Public Information Officer, Customs Excise & Service Tax Appellate Tribunal (CESTAT)’ in Delhi. He had sought information on cases that were reserved by the CESTAT along with names of parties and appeal numbers. Dissatisfied with the information, he filed a second appeal with the CIC, Delhi. The CIC, after hearing, imposed a token penalty of Rs2,500 on the CPIO. 
Section 20 in the Right to Information Act, 2005
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 subsection (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. However, the total amount of such penalty shall not exceed twentyfive 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.