Court can in exercise of its powers vary the penalty

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 03rd NOVEMBER, 2023
IN THE MATTER OF:+ W.P.(C) 2398/2021
POOJA V . SHAH ..... Petitioner
versus
BANK OF INDIA

SUBRAMONIUM PRASAD, J
NOVEMBER 03, 2023
held as
7. Petitioner has filed the present Writ Petitions contending that since the
delay in providing information is of more than 100 days, the CIC ought to
have imposed the maximum penalty of Rs.25,000/- , as mandated under
Section 20 of the RTI Act, on each of the CPIO and that the CIC has no
power to reduce the amount of penalty.
8. Section 20 of the RTI Act reads as under:
Section 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
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 impose a penalty of two hundred
W.P.(C) 2398/2021 & W.P.(C) 12912/2021 Page 6 of 9
and fifty rupees each day till 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 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.
(2) 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 and persistently,
failed 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 recommend for disciplinary action
against the Central Public Information Officer or the
State Public Information Officer, as the case may be,
under the service rules applicable to him.
(emphasis supplied)
9. A perusal of Section 20 of the RTI Act shows that penalties can be
imposed on the Public Information Officer if it is found that he/she has
refused to receive an application for information or has not furnished
information within the specified time or has malafidely denied the request
W.P.(C) 2398/2021 & W.P.(C) 12912/2021 Page 7 of 9
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. Section 20 of the
RTI Act stipulates a maximum penalty of Rs.250 per day on the Public
Information Officer. However, it does not mean that the maximum penalty
has to be imposed on the Public Information Officer. The amount can vary
depending upon the malice and the degree of inaction on the part of the
Public Information Officer in not providing the information. What is
mandatory is the imposition of penalty and not the quantum of penalty. The
RTI Act only specifies the maximum limit of the penalty and not the
minimum limit. It is nowhere mentioned that delay of each day will incur a
penalty of Rs.250/-. The Petitioner is trying to construe that it is mandatory
on the part of the Public Information Officers to pay Rs.250/- each day
regardless of the degree of malice or inaction. Such an interpretation cannot
be sustained. Since the degree of the penalty will depend and differ upon the
knowledge of the Public Information Officer and the reasons as to why the
Public Information Officer could not furnish the relevant information the
submission of the Petitioner that it is mandatory to impose a penalty of
Rs.250/- per day on the Public Information Officers for not furnishing the
relevant information cannot be accepted.
10. The issue raised by the Petitioner herein is no longer res integra. The
Division Bench of this Court in Anand Bhushan v. R.A. Haritash, 2012 SCC
OnLine Del 1900, has held as under:
15. We may at the outset notice that a Division Bench
of this Court in judgment dated 6th January. 2011 in
LPA 782/2010 titled Central Information Commission
v. Department of Posts, inspite of the argument raised
W.P.(C) 2398/2021 & W.P.(C) 12912/2021 Page 8 of 9
that that Single Judge ought not to have reduced the
penalty imposed by the CIC but finding sufficient
explanation for the delay in supplying information,
upheld the order of the Single Judge, reducing the
penalty. Though 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. The Supreme
Court in Carpenter Classic Exim P. Ltd. v. Commnr. of
Customs (Imports), (2009) 11 SCC 293 was concerned
with Section 114 A, Customs Act, 1962 which also used
the word shall in conjunction with expression willful
misstatement or suppression of facts; it was held that
provision of penalty was not mandatory since
discretion had been vested in the penalty imposing
authority. Similarly in Superintendent and
Remembrancer of Legal Affairs to Government of West
Bengal v. Abani Maity, (1979) 4 SCC 85, the words
shall be liable for confiscation in section 63(1) of
Bengal Excise Act, 1909, were held to be not conveying
an absolute imperative but merely a possibility of
attracting such penalty inspite of use of the word
shall.. It was held that discretion is vested in the court
in that case, to impose or not to impose the penalty.
W.P.(C) 2398/2021 & W.P.(C) 12912/2021 Page 9 of 9
16. Once it is held that the quantum of fine is
discretionary, there can be no challenge to the judicial
review under Article 226 of the Constitution, of
exercise of such discretion, of course within the well
recognized limits. If this Court finds discretion to have
been not appropriately exercised by the CIC, this
Court can in exercise of its powers vary the penalty. In
the facts of the present case, we find the learned Single
Judge to have for valid reasons with which we have no
reason to differ, reduced the penalty. We, therefore do
not find any merits in this appeal and dismiss the same.
No order as to costs.
(emphasis supplied)
11. Since the issue is fully covered, this Court is not inclined to decide on
the quantum of the penalty imposed on the Public Information Officers. This
Court is also of the opinion that adequate punishment has been given to the
CPIOs who have now been made to pay the amount of penalty from their
salary