penalty for delay is mandatory. not discretionary
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE SHEEL NAGU WP. No.472 of 2022
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(i) Petitioner has not disputed that he was a Public Information Officer and did not supply the complete information despite the order of State Information Commissioner.
(ii) R.T.I. Act is a manifestation of fundamental right under Article 19 of Constitution of India and is promulgated with the object of providing practical regime of Right to Information for citizens to secure access under the control of public authorities in order to promote transparency and accountability in working of every public authority under the Constitution to ensure strict adherence of time line provided for considering an application seeking information by the Public Information Officer and supply of the same to the seeker of information, Penal provisions have also been provided u/S.20 of Act of 2005, making it incumbent upon the Information Commissioners to mandatorily impose penalty @ Rs.250/- per day on the Public Information Officer for delayed supply of information sought, with the rider that the amount of penalty would not exceed to Rs.25,000/- in a particular case.
6.1 Bare reading of Section 20 reveals that no discretion is vested with the Information Commissioners as regards the rate at which penalty is to be charged or the quantum of penalty is. To prevent the provision from rendering arbitrary, a cap of Rs.25,000/- is stipulated as the maximum amount in a single case.
6.2 U/S.20 of Act of 2005 the Information Commissioner is further obliged under the law to recommend disciplinary action against the erring Public Information Officer, who inter alia fails to furnish information within the time prescribed u/S.7 of Act of 2005.
6.3 In view of above and the mandatory nature of Section 20 of Act of 2005, it is obvious that Information Commissioner has no discretion to reduce or relax either the rate at which penalty is to be charged or the total amount of penalty, which is worked out by applying the said rate.
Thus, reliance placed by learned counsel for petitioner on the Single Bench decision of this Court in the case of Dr. G.K. Jais (supra) is of no avail since Single Bench had reduced the penalty of Rs.25,000/- imposed therein to only Rs.3,000/- under the wrong assumption that Section 20 is discretionary and not mandatory.
The decision of Dr. G.K. Jais (supra) thus appears to be an outcome of misreading of mandatory provision u/S.20 of Act of 2005 and as such is per incuriam Section 20 of Act of 2005 and thus, is of no avail to the petitioner. Other decision relied upon by learned counsel for petitioner in the case of Dr. S.P. Gautam (supra) is also of no avail since the petitioner therein was not the Public Information Officer by the Appellate Authority and yet was penalized u/S.20 of Act of 2005.
6.4 In the instant case, it is not disputed at the bar that petitioner was designated as Public Information Officer right from the stage when application seeking information was made till appellate orders by Information Commissioner were passed directing the petitioner to supply information.
7. In view of above discussion, order of State Information Officer dated 25.11.2021 (Annexure P/1) cannot be found fault with as the pre requisites of Section 20(1) and 20(2) of Act of 2005 were duly satisfied thereby compelling Information Commissioner to invoke its penal powers u/S.20 of Act of 2005.
7.1 The ground of violation of principles of natural justice is further of no avail since impugned order is a detailed and speaking order after affording due and sufficient opportunity to the petitioner to make his submissions before State Information Commissioner