V. Mohandoss & Others vs State Information Commissioner & Others

Abdul Quddhose, J

Since the issue involved in both the writ petitions are one and the same, both the writ petitions are disposed of by this common order.

The instant writ petitions have been filed challenging the order dated 06.10.2009 passed by the first respondent in case No. 27589 of 2008.

It is the case of the petitioner in W.P.(MD) No.10939 of 2009 that while holding the office of Public Information Officer at Madurai Corporation, he was charged for violating the provisions of the RTI Act by furnishing false information to the second respondent stating that the drainage connection was given by Tamil Nadu Housing Board. But, in fact, the drainage connection was given only by the Municipal Corporation, Madurai. Based on the complaint given by the second respondent, the first respondent has passed an order on 06.10.2009 in case No.27589 of 2008 imposing penalty of Rs.25,000/- on the petitioner for furnishing false information to the second respondent. Aggrieved by the order of the first respondent, the petitioner has filed this writ petition.

Heard Mr.B.Saravanan, learned counsel for the petitioner, Mr.K.K.Senthil, learned counsel appearing for the first respondent and Mr.R.Suriyanarayanan, learned counsel appearing for the second respondent in both the writ petitions.

According to the learned counsel for the petitioner in W.P.(MD) No.10939 of 2009, the first respondent has violated the principles of natural justice by not affording sufficient opportunity to the petitioner before passing the impugned order. He drew the attention of this Court to the reply dated 31.07.2009 sent by the petitioner to the first respondent for the show cause notice dated 20.07.2009 issued by the first respondent. According to the petitioner, even though detailed objections were raised in the reply dated 31.07.2009, the first respondent even without acknowledging the receipt of the same and without considering the objections has passed the impugned order directing the petitioner to pay a penalty of Rs.25,000/- for the false information allegedly given by him to the second respondent.

Learned counsel for the petitioner also drew the attention of this Court to the acknowledgment card received by the first respondent dated 03.08.2009. But even though the first respondent has received the same, according to the learned counsel for the petitioner there is no reference to the receipt of the same in the impugned order.

Discussion:

It is evident from the records placed before this Court that a reply dated 31.07.2009 was sent by the petitioner to the show cause notice dated 20.07.2009 sent by the first respondent. But as seen from the impugned order dated 06.10.2009 directing the petitioner to pay a penalty of Rs.25,000/-, there is no reference to the reply dated 31.07.2009 sent by the petitioner. But under the impugned order dated 06.10.2009, the first respondent has observed that no reply was received for the show cause notice sent by them.

As seen from the reply, it is the case of the petitioner that the information furnished by the respondent was given only as per the available records with the Department. Further, it is the case of the petitioner that no sufficient opportunity was granted to the petitioner by the first respondent before passing of the impugned order. According to the learned counsel for the petitioner, no personal hearing was also afforded to the petitioner by the first respondent. The proviso to Section 20 of the RTI Act, 2005 makes it clear that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall give reasonable opportunity before imposing penalty. Section 20 of the Right To Information(RTI) Act, 2005 reads as follow:-

"20. (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 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."

In the instant case, the first respondent has not followed the due procedure as contemplated under Section 20 of the RTI Act, 2005 by affording reasonable opportunity to the petitioner. For the foregoing reasons, this Court is of the considered view that the impugned order has to be quashed.

In the result, the impugned case No.27589 of 2008 dated 06/10/2009 passed by the first respondent is hereby quashed and the Writ Petitions are Allowed. No costs.