P.N. Praveen Kumar v State Information Commissioner, Kerala

WP(C) NO. 25864 OF 2011 1 ## **CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 2[ND] DAY OF AUGUST 2021 / 11TH SRAVANA, 1943** ## **WP(C) NO. 25864 OF 2011** ## **PETITIONER/S:** P.N.PRAVEEN KUMAR, AGED 38 YEARS, S/O.NARAYANAN NAIR, OREETHA NIVAS, KOTTOOR P.O., (VIA)NEDUVANNUR, KOZHIKODE DISTRICT. BY ADV SRI.V.N.RAMESAN NAMBISAN ## **RESPONDENT/S:** 1 STATE INFORMATION COMMISSIONER, KERALA, PUNNEL ROAD, THIRUVANANTHAPURAM, PIN-695 039. 2 SANTHOSH KUMAR, S/O.LATE DIVAKARA MENON,VIYYUR MANATT HOUSE, P.O.MOOLAD, KUNNARAMVALLI, (VIA) NEDUVANNUR, KOZHIKODE DISTRICT-673 003. BY ADVS. SRI.K.N.GOVINDANKUTTY MENON SRI.V.B.PREMACHANDRAN SRI.M.AJAY, SC, STATE INFORMATION COMMN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 25864 OF 2011 2 **CR** ## **P.V.KUNHIKRISHNAN, J** **-------------------------------** ## **W.P.(C)No.25864 of 2011** **--------------------------------** Dated this the 02[nd ] day of August 2021 ## **JUDGMENT** The petitioner was working as Village Officer, Avidanalloor Village Office. The 2[nd] respondent submitted Ext.P1 to the petitioner on 03.07.2020 for getting certain information as per Right to Information Act, 2005 (“the Act” for short). The petitioner received Ext.P1 on 08.07.2010. Thereafter the petitioner sent a letter on 31.07.2010 requesting the 2[nd] respondent to pay the required fee and produce the challan receipt. The challan submitted by the 2[nd] respondent was received in the Village Office on 12.08.2010. Thereafter the petitioner sent the 2[nd] letter on 19.08.2010, in which it is stated that the 2[nd] respondent has either to collect the WP(C) NO. 25864 OF 2011 3 information sought personally from the Village Office or to provide a stamped envelope for sending the details. Aggrieved by the same, the 2[nd] respondent submitted Ext.P3 before the 1[st] respondent. The main grievance of the 2[nd] respondent in Ext.P3 are the following: 1) The stamped cover need not be submitted by the petitioner. 2) It is a deliberate attempt to delay. The 1[st] respondent after hearing the petitioner passed Ext.P4 order. Relevant portion of the order is extracted hereunder: _5. The Commission observed that the petitioner requested for information vide application dated 03.07.2010 and it was received by the SPIO on 08.07.2010. the petitioner was asked to remit fee for 17 pages vide letter dated 31.07.2010. Accordingly the petitioner remitted fees of Rs.34/- in the treasury and the challan receipt was sent to the SPIO on 07.08.2010 and the same was received by the SPIO on 12.08.2010. But the_ WP(C) NO. 25864 OF 2011 4 _SPIO vide letter dated 19.08.2010 asked the petitioner to appear in person in the Village Office to receive the information or send the post cover with required stamp to receive the information. This action of the SPIO is not justifiable under the provisions of the RTI Act. The information requested consisted of only 17 pages, which could have been easily sent to the petitioner by post. The Commission observe that the information has not been provided yet even after the intervention of the Commission._ _6. Therefore Commission order that the information requested by the petitioner should be provided to him within seven days of receipt of this order, free of cost u/s 7(6) of the RTI Act and report compliance to the Commission. The amount of Rs.34/- levied, as fees from the petitioner should be refunded to him within seven days. Hence the Commission order to issue notice u/s 20(1) of the RTI Act to the SPIO, Sri.P.N.Praveen, Kottoor Village Officer, Kozhikode for not providing the information to the petitioner in time after remitting the fee. He should submit his explanation within seven days of receipt of the notice_ . 2. Thereafter, the 1[st] respondent initiated proceedings under Section 20 of the Right to Information Act. The petitioner submitted Ext.P5 WP(C) NO. 25864 OF 2011 5 explanation before the 1[st] respondent. After going through Ext.P5 explanation, the 1[st] respondent passed an order imposing a penalty on the petitioner. Ext.P7 is the order. Relevant portion of Ext.P7 is extracted hereunder: _The SPIO Shri.P.N.Praveen was present for hearing on 20.08.2011 and he was heard in person. The SPIO submitted that the information was furnished to the petitioner on 24.11.2010 as per the order of the Commission. But the SPIO could not submit any reasonable cause for the delay. So the Commission observe that for the RTI application dated 8.7.2010, complete information was not provided to the petitioner in time, even though he remitted the required fee and sent the receipt to the SPIO. The SPIO did not act diligently. He could not offer any reasonable cause for not providing the information in time._ _Therefore the Commission order to impose_ _penalty of Rs.10,000/on the SPIO Sri.P.N.Praveen, Village Officer, Kottor Village for not providing the information to the petitioner in time. He shall remit the amount to the District Treasury, Kozhikode under the Head of Account “0070-60-800-36-Receipts under Right_ WP(C) NO. 25864 OF 2011 **==> picture [7 x 9] intentionally omitted <==** _to Information Act-2005” within 15 days of receipt of this order and report compliance to the Commission, failing which the amount shall be recovered from his salary of the ensuing month or shall be recovered by attachment and sale of the movable or immovable properties belonging to him. The Secretary of the Commission shall issue copy of the order to Shri P.N.Praveen.”(emphasis supplied)_ 3. Aggrieved by Exts.P4 and P7 this Writ Petition is filed. ## 4. Heard the learned counsel for the petitioner and the learned Standing Counsel for the 1[st] respondent. ## 5. Learned counsel for the petitioner submitted that even if the allegation in Ext.P3 submitted by the 2[nd] respondent is accepted in toto, the 1[st] respondent ought not to have passed an order under Section 20(1) imposing penalty. The learned counsel relied on the judgments in _Manohar s/o. Manikrao Anchule vs. State of_ _Maharashtra and another_ : _(2012) 13 SCC 14_ , WP(C) NO. 25864 OF 2011 7 _Chandramohanan Nair R. v. State Information Commissioner and Others : 2018(5) KHC 707_ and _Joseph P.J. vs. Kerala State Information Commission and another : 2020 KHC 4128_ . The learned counsel submitted that the prerequisite for imposing penalty under Section 20(1) of the Right to Information Act is not made out in this case and therefore Ext.P7 order is unsustainable. 6. On the other hand, the learned Standing Counsel supported Exts.P4 and P7 orders. The learned Standing Counsel submitted that the petitioner supplied information only after Ext.P4 order. The learned Standing Counsel takes me through the relevant portion of Exts.P4 and P7. Learned Standing Counsel submitted that it is a clear case in which the petitioner obstructed in not furnishing the information required and therefore the 1[st] respondent is justified in passing an order under Section 20(1) of the Right WP(C) NO. 25864 OF 2011 **==> picture [7 x 9] intentionally omitted <==** to Information Act. The learned counsel also submitted that there is ample evidence to impose a penalty under Section 20(1) of the RTI Act. 7. The short point to be decided is whether there are grounds to impose a penalty as per Section 20(1) of the Right to Information Act. For better understanding, Section 20(1) of the Right to Information Act is extracted below: _20. Penalties:-_ _(1) Where the Central Information Commission or 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 sub-section (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_ WP(C) NO. 25864 OF 2011 9 _impose a penalty or two hundred and fifty rupees each day till application is received or information is furnished, so 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._ 8. There are certain prerequisites for imposing penalty under Section 20(1) of the Act. As per Section 20(1), the Central Information Commission or 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, WP(C) NO. 25864 OF 2011 **==> picture [13 x 9] intentionally omitted <==** - (i)without any reasonable cause, refused to receive an application for information or (ii)has not furnished information within the time specified under sub-section (1) of Section 7 or - (iii)mala fidely denied the request for information or - (iv)knowingly given incorrect, incomplete or misleading information or - (v)destroyed information which was the subject of the request or (vi)obstructed in any manner in furnishing the information, the commission can impose a penalty. Only in these 6 eventualities, the Commission can impose a penalty under Section 20(1) of the Act. **==> picture [383 x 12] intentionally omitted <==** WP(C) NO. 25864 OF 2011 11 ## _Maharastra_ (supra) observed like this: _15. The State Information Commissions exercise very wide and certainly quasi-judicial powers. In fact their functioning is akin to the judicial system rather than the executive decision-making process. It is a settled principle of law and does not require us to discuss this principle with any elaboration that adherence to the principles of natural justice is mandatory for such Tribunal or bodies discharging such functions._ _16. The State Information Commission has been vested with wide powers including imposition of penalty or taking of disciplinary action against the employees. Exercise of such power is bound to adversely affect or bring civil consequences to the delinquent. Thus, the provisions relating to penalty or to penal consequences have to be construed strictly. It will not be open to the Court to give them such liberal construction that it would be beyond the specific language of the statute or would be in violation of the principles of natural justice._ _17. The State Information Commission is performing adjudicatory functions where two parties raise their respective issues to which the State Information Commission is expected to_ WP(C) NO. 25864 OF 2011 12 _apply its mind and pass an order directing disclosure of the information asked for or declining the same. Either way, it affects the rights of the parties who have raised rival contentions before the Commission. If there were no rival contentions, the matter would rest at the level of the designate Public Information Officer or immediately thereafter. It comes to the State Information Commission only at the appellate stage when rights and contentions require adjudication. The adjudicatory process essentially has to be in consonance with the principles of natural justice, including the doctrine of audi alteram partem. Hearing the parties, application of mind and recording of reasoned decision are the basic elements of natural justice. It is not expected of the Commission to breach any of these principles, particularly when its orders are open to judicial review. Much less to Tribunal or such Commissions, the courts have even made compliance with the principle of rule of natural justice obligatory in the class of administrative matters as well._ From the above dictum and also on going through Section 20(1) of the Act, it is clear that the responsibility of the State Information Commission is an adjudicatory function. It is also WP(C) NO. 25864 OF 2011 13 to be noted that, the apex court in _Union of India vs. Namit Sharma [(2013 10 SCC 359]_ observed that the Information Commission discharges an administrative function, and not a judicial function. Therefore, the commission can impose a penalty only if the 6 conditions mentioned in Section 20(1) of the Act are available. The Commission cannot add or subtract anything to the above condition precedents mentioned in Section 20(1) of the Act for imposing penalty. When there is reasonable cause for the refusal to receive an application for information, the Commission cannot take action. Unless there is a blatant violation of Section 7(1) of the Act, there cannot be an imposition of penalty under Section 20(1) of the Act. Similarly, denial of a request for information alone is not sufficient to impose a penalty under Section 20(1) but denial of the request for information with mala fide intention is necessary. Similarly, furnishing incorrect, incomplete, or misleading information alone is not sufficient, but if there is incorrect, incomplete WP(C) NO. 25864 OF 2011 14 or misleading information supplied knowing the same to be incorrect, incomplete or misleading is necessary for taking action under Section 20(1) of the Act. Yet another ground to take action under Section 20(1) is when the information is destroyed, which was the subject matter of the request. The penalty can also be imposed, if there is an obstruction in any manner in furnishing information. Therefore, mere misconduct or negligence on the part of the State Public Information Officer or Central Public Information Officer is not sufficient to impose a penalty under Section 20(1) of the Act. Only in the eventualities stated in Section 20(1) of the Act, the penalty can be imposed. 10. The point to be decided is whether the conduct of the petitioner will attract a ground to impose a penalty under Section 20(1) of the Act. The admitted facts in the case are that the 2[nd] respondent submitted an application on WP(C) NO. 25864 OF 2011 15 03.07.2010 as evidenced by Ext.P1 which was received by the petitioner on 08.07.2010. It is also an admitted fact that the petitioner sent a letter on 31.07.2010 for paying the required challan fee. It is also an admitted fact that the 2[nd] respondent paid the amount and the challan was submitted before the petitioner on 12.08.2010. Instead of supplying the information thereafter the petitioner sent a letter on 19.08.2010 asking the 2[nd] respondent to appear in person to collect the information or to send a stamped envelope for sending information. In Ext.P4 the 1[st] respondent stated that “ _...But the SPIO vide letter_ _19.08.2010 asking the petitioner to appear in person in the Village Office to receive the information or send the post cover with required stamp to receive the information. This action of_ _the SPIO is not justifiable under the provisions of the RTI Act._ " It is not clear from Ext.P4, how the action of the SPIO is not justifiable under WP(C) NO. 25864 OF 2011 16 the provisions of the RTI Act. Of course the petitioner ought not to have sent the 2[nd] letter on 19.08.2010 with a request to forward the stamped envelop. But in that letter itself, it is stated that the 2[nd] respondent can collect the information directly. Whether sending a letter on 19.08.2010 to collect the information personally or to send a stamped envelope for forwarding the information will give a cause of action to initiate proceedings under Section 20(1) of the RTI Act is the question. As I stated earlier, to initiate an action under section 20(1) of the RTI Act certain conditions are to comply. According to my opinion, simply because the petitioner sent a letter dated 19.08.2010, requesting to collect it personally or to send a stamped envelop to forward the information is not grave misconduct on the part of the petitioner to initiate an action under Section 20(1) of the RTI Act. It is to be noted that the second letter was WP(C) NO. 25864 OF 2011 17 on 19.08.2010 and the application for the information itself was received only on 08.07.2010. If the period as per Section 7(3)(a) of the Act is excluded, it cannot be said that the second letter is not within the time specified under Section 7(1) of the Act. In the letter dated 19.08.2010 it is clearly stated that the 2[nd] respondent can collect the information directly from the office. 11. According to the learned Standing Counsel for the 1[st] respondent, the petitioner is not acted in accordance with Section 7(3) of the RTI Act. Section 7(3) only says that where a decision is taken to provide information on payment of any further fee representing the cost of providing the information, the Central Public Information Officer or the State Public Information Officer, as the case may be, shall send an intimation to the person making the request, giving the details WP(C) NO. 25864 OF 2011 ## 18 of further fees representing the cost of providing the information as determined by him, together with the calculations made to arrive at the amount in accordance with the fee prescribed under sub-section (1), requesting him to deposit that fees, and the period intervening between the despatch of the said intimation and payment of fees shall be excluded for the purpose of calculating the period of thirty days referred to in that sub-section. Section 7(3)(b) says about the details to be mentioned in the intimation, including the details of appellate authority, time limit etc. 12. The 2[nd] respondent has no case that he was not aware of the appellate jurisdiction. He has no such grievance in Ext.P3. He submitted the appeal in time as evidenced by Ext.P3 appeal. After going through Section 7(3)(a) and (b) also, according to me, there is no grave misconduct on WP(C) NO. 25864 OF 2011 **==> picture [13 x 9] intentionally omitted <==** the part of the petitioner. Therefore, according to me an action under Section 20(1) of the RTI Act is not necessary in the facts and circumstances of the case. Therefore, Exts.P4 and P7 can be set aside. Therefore the Writ Petition is allowed. Exts.P4 and P7 are set aside. No cost. ## **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** rkc WP(C) NO. 25864 OF 2011 20 ## **APPENDIX OF WP(C) 25864/2011** PETITIONER's EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 3.7.2010. EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGMENT CARD FOR SENDING THE ABOVE LETTER RETAINED BY THE OFFICE. EXHIBIT P3 TRUE COPY OF COMPLAINT DATED 30.8.2010 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 22.11.2010 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF EXPLANATION ON 15.12.2010 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P6 TRUE COPY OF THE RELEVANT EXTRACT OF THE ANNUAL REPORT PUBLISHED BY THE 1ST RESPONDENT FOR THE YEAR 2007-08. EXHIBIT P7 TRUE COPY OF THE ORDER OF 1ST RESPONDENT DATED 20.8.2011 IN COMPLAINT NO.784(2)/2010/SIC.