P.J. Joseph S/o John v. Kerala State Information Commission and P.P. Chandrasekharan B.J.P. District Secretary, K.Chaappathu (P.O.), Idukki District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942** ## **WP(C).No.3125 OF 2010(M)** ## **PETITIONER/S:** **P.J.JOSEPH S/O JOHN, PULIMOOTTIL HOUSE, ANAKKARA,, IDUKKI DISTRICT.** **BY ADV. SRI.S.SHANAVAS KHAN** ## **RESPONDENT/S:** **1 THE KERALA STATE INFORMATION COMMISSION PUNNEN ROAD, THIRUVANANTHAPURAM.** **2 P.P.CHANDRASEKHARAN B.J.P.DISTRICT SECRRETARY,, K.CHAAPPATHU (P.O.), IDUKKI DISTRICT.** **R1 BY ADV. SRI.M.R.DHANIL R1 BY SRI.M.AJAY, SC, STATE INFORMATION COMMN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD** **ON 01-06-2020, THE COURT ON 04-06-2020 DELIVERED THE** **FOLLOWING:** W.P.(C) 3125 of 2010 2 ## **JUDGMENT** Dated this the 4[th] day of June , 2020. **The challenge in this writ petition is against Ext.P6 order by which the State Information Commission imposed a penalty of Rs.22,500/- on the petitioner. The essential facts, necessary for adjudication of the issues, are as follows:-** **While the petitioner was working as Secretary of the Kumily Grama Panchayat, the third respondent had submitted an application under the Right to Information Act requesting for details of the PFA licences granted to various establishments in Kumily for the period 2007-08. According to the petitioner, on receipt of the application, he gave Ext.P1 reply, requiring the third respondent to remit an amount of Rs.4/- by way of demand draft towards the requisite fees. After issuance of Ext.P1, nothing further was** W.P.(C) 3125 of 2010 3 **heard from the third respondent. While so, the petitioner was served with Ext.P2 notice of the State Information Commission stating that the third respondent had approached the Commission with a complaint under Section 18(1), alleging that the petitioner had refused to furnish certain information sought by him. Under Ext.P2, the petitioner was directed to take a decision on the application submitted by the third respondent within ten days and to file a report regarding the action taken. On receipt of the notice, the petitioner furnished the information sought by the third respondent and submitted a report of compliance before the Commission. Later, he was served with Ext.P4 notice, requiring him to show cause as to why penalty proceedings under Section 20(1) should not be taken for violation of Section 7 (1) of the Right to Information Act, by unduly delaying consideration of the application** W.P.(C) 3125 of 2010 4 **submitted by the third respondent. Even though petitioner submitted Ext.P5 explanation stating that there was no delay on his part and nonconsideration of the application submitted by the third respondent was only for the reason that he had failed to remit the requisite fees, in spite of a communication in that regard having been issued, by Ext.P6, the Commission rejected the petitioner's explanation and imposed penalty under Section 20(1) finding that there was delay of 90 days in providing the third respondent with the information he had requested for. The Commission found fault with the petitioner for having failed to produce evidence regarding issuance of notice to the third respondent and presumed that no such notice was issued.** **2. Heard Sri.S.Shanavas Khan, learned Counsel for the petitioner, Sri.M.Ajay, learned Standing Counsel for the Information Commission and Smt.** W.P.(C) 3125 of 2010 5 **M.Jaylatha, learned Counsel for the third respondent.** **3. The learned Counsel for the petitioner submits that, explanation having been offered for non-consideration of the application submitted by the third respondent, the Commission committed an illegality in mulcting the petitioner with penalty under Section 20(1). The learned Counsel contends that being a penal provision, Section 20 has to be strictly construed and that penalty can be imposed on a Public Information Officer only if he has, without any reasonable cause, refused to receive an application for information or has not furnished the information within the time specified under sub-section (1) of Section 7 or 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** W.P.(C) 3125 of 2010 6 **furnishing of the information in any manner. It is contended that the petitioner cannot be attributed with any such conduct and hence, the imposition of penalty is unjust and illegal.** **4. The learned Standing Counsel as well as the learned Counsel for the third respondent disputes the contention, of the petitioner having issued a notice to the third respondent requiring remittance of fees for processing the application and furnishing the information. The learned Standing Counsel points out that in spite of repeated notices and reminders, the petitioner had failed to furnish evidence regarding issuance of the said alleged notice. It is pointed out that going by the second proviso to Section 20 (1), the burden of proving that he had acted reasonably and diligently was on the petitioner. The petitioner having failed to discharge that burden and having failed to even respond to the repeated notices** W.P.(C) 3125 of 2010 7 **issued by the Commission, cannot fault the Commission for having issued Ext.P6 order presuming the petitioner to have delayed consideration of the request for information in a malafide manner.** **5. The learned Counsel for the petitioner submits that by the time when he was required by the Commission to produce evidence regarding issuance of notice to the third respondent, he had already been transferred from Kumily to Mundakayam Grama Panchayat. It is submitted that the petitioner was unable to produce evidence before the Commission since he had ceased to be the custodian of the records. It is submitted that, the petitioner having furnished the information immediately on receipt of Ext.P2 notice and also considering the fact that the petitioner had since retired from service, he may be absolved from the penalty.** W.P.(C) 3125 of 2010 8 **6. Opposing the submission, the learned Standing Counsel would submit that being the designated public Information Officer, it was the duty of the petitioner to have furnished the information sought or to have otherwise offered an explanation, with supporting evidence, as to why the information was not furnished. That, the petitioner having failed to substantiate his explanation with supporting evidence, the order imposing penalty warrants no interference.** **7. I find substantial force in the contention of the learned Standing Counsel that being a Public Information Officer, it was the bounden duty of the petitioner to have furnished the information sought or to have satisfied the Commission about the reason for not furnishing the information. Of course, the petitioner has come forward with a case that he had in fact informed the third respondent regarding the requirement of** W.P.(C) 3125 of 2010 9 **remitting the fees and the application submitted by the third respondent was not processed due to non-remittance of the fees. With regard to his failure to substantiate this contention with documentary evidence, the submission of the petitioner is that by the time he was called upon to produce the documents, he had already been transferred from Kumily Grama Panchayat. These are explanations which the petitioner ought to have made before the Commission at the relevant point of time. Even then the question remains as to whether, failure to substantiate the explanation with supporting evidence would by itself, warrant an order imposing penalty. The Apex Court has repeatedly held that being a penal provision, Section 20 has to be construed strictly and penalty should be imposed only on finding the Public Information Officer guilty of the conduct mentioned in the Section. The question as to when** W.P.(C) 3125 of 2010 10 **penalty can be imposed and the scope of Section 20 was considered by this Court in** _**Chandramohanan Nair R. v. State Information Commissioner and others [2018 (5) KHC 707]**_ **, paragraph 12 of which is extracted hereunder:-** _**“12. A reading of S.20 of the Act will make it clear that the 1[st] respondent can impose a penalty only when-**_ _**(i) the CPIO/SPIO has, without any reasonable cause, refused to receive an application for information, or**_ _**(ii)has not furnished information within the time specified under sub-S.1 fo S.7, or**_ _**(iii) malafidely denied a request for information, or**_ _**(iv) Knowingly given incorrect, incomplete, or misleading information, or (v) destroyed information which was the subject of the request or obstructed in any manner in furnishing the information. The 1[st] respondent can impose a penalty only on the happening of one of the aforesaid conditions. The penalty contemplated by S.20 of the Act is Rs.250/- each day till information is furnished. S.20 of the Act mandates that the maximum penalty that can be imposed under the Section is Rs.25,000/only.”**_ **8. In my considered opinion, Ext.P6 does not** **reflect a detailed consideration as to whether the** **action of the petitioner warrants imposition of penalty under Section 20 (1). The Commission** W.P.(C) 3125 of 2010 11 **seems to have been more irked by the petitioner's failure to respond to its notices requiring production of evidence. In that view of the matter, I am constrained to set aside Ext.P6.** **In the result, the writ petition is allowed. Ext.P6 is set aside and the first respondent is directed to consider the matter afresh with notice to the petitioner and the third respondent.** **sd/V.G.ARUN JUDGE** Scl/4.06 W.P.(C) 3125 of 2010 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER NO. A1-P113/07-08 DATED 8/8/07 SENT BY THE PETITIONER TO THE 2ND RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE LETTER NO. 6971/SIC/01/07 STED 12-11-2007 ISSUED BYT HE 1ST RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE LETTER NO. P1 13/200708 DATED 28-11-2007 SENT BY THE PETITIONER TO THE 2ND RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE LETTER NO. 6971/SI -GEN1/2007 DATED 16-01-2008 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE REPLY NO. A1-PG 13/0708 DATED 04-02-2008 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 10/11/2009 OF THE 1ST RESPONDENT.**