Mohammed Nias C.P.J
1. This writ petition is preferred by the State Information Officer (SIO) of the Home Department, Government of Kerala, aggrieved by Ext.P1 order passed by the State Information Commissioner under Section 19(3) and Section 20 of the Right to Information Act, 2005 (hereinafter referred to as 'the Act'), holding that the writ petitioner was responsible for a delay of 43 days in providing the information as sought for by the second respondent, and imposing a penalty of Rs.10,750/- within 30 days from the receipt of the order, failing which the said amount was ordered to be recovered from the salary of the petitioner.
2. The second respondent herein made an application dated 19.09.2006, Ext.P2, before the State Assistant Public Information Officer, Home Department, requesting a copy of the report furnished by the Director General of Prosecution regarding the implementation of the Criminal Procedure Code (Amendment) Act, 2005 with regard to Section 25A. Ext.P2 application was received as aforesaid on the same day. Since the information sought related to the Home (C) Department, Ext.P2 application was forwarded to that section on 22.9.2006 as per Ext.P3 communication. The second respondent filed an appeal on 20.10.2006 before the Assistant Public Information Officer, Ext.P4, which was addressed to the Chief Public Information Officer, Home Department. It is the contention of the writ petitioner that she is not the appellate authority under the Right to Information Act and that the receipt of Ext.P2 application was, in fact, brought to the notice of the writ petitioner only on 20.10.2006 and the writ petitioner being the original authority under the Act, transferred Ext.P2 application on 20.10.2006 itself to the Director General of Prosecution for further action in the matter in tune with Section 6(3) of the Act, as per Ext.P5 communication. Unfortunately, while sending Ext.P5, an inadvertent mistake crept in as it was addressed to Y.Anilkumar, I.G. (Administration), Office of the Director General of Prosecution, Ernakulam.
3. The Director General of Prosecution, by his letter dated 30.10.2006, informed the writ petitioner that Ext.P2 application was seen received in his office and that Ext.P5 letter is seen addressed to Y.Anilkumar, I.G. (Administration), who had nothing to do with the matter in issue. This was intimated by Ext.P6 letter dated 30.10.2006. Copy of Ext.P2 application was again transferred to the Director General of Prosecution on 6.11.2006 by the Under Secretary, Home (C) Department by Ext.P7, and ultimately, the Director General of Prosecution vide its letter dated 15.11.2006 forwarded a copy of the information sought by the second respondent and the same was received in the Government on 20.11.2006.
4. The petitioner contends that while transferring Ext.P2 application to the Director General of Prosecution on 20.10.2006, she was under the bonafide belief that the issue was settled and the Director General of Prosecution would furnish the requested information. However, the file thereafter came to the writ petitioner's office only on 5.12.2006, and on 6.12.2006, the writ petitioner furnished a copy of the information sought by the second respondent. Thus, the petitioner contended that the requested information was available in the Home (C) Department itself and that the Home (C) Department is not under the supervisory control of the writ petitioner. Ext.P2 was forwarded to the Director General of Prosecution, Ernakulam, as the subject matter of the information sought was connected with the functions of that office.
5. The second respondent submitted an appeal before the first respondent under Section 19(3) of the Act through Ext.P8. Notice on Ext.P8 appeal was issued to the Appellate Authority, Home Department through Ext.P9. The Principal Secretary, Home Department, is the appellate authority under the Act, and on behalf of the Principal Secretary, a statement was filed before the first respondent on 8.12.2006, Ext.P10. Later, on 03.02.2007, the writ petitioner received a notice from the 1st respondent requesting her to appear in person and show cause why penalty shall not be imposed through Ext.P11 notice. It is submitted that on 15.02.2007, the writ petitioner appeared in person before the 1st respondent and sought an extension of time, and thus the case was adjourned to 1.3.2007 on which day, the writ petitioner filed a detailed affidavit before the 1st respondent explaining the reasons for the alleged delay in furnishing the information, through Ext.P12. The case was posted to 8.3.2007 as the first respondent had granted five days to the petitioner to file an additional affidavit. In the meanwhile, on 01.03.2007, the second respondent applicant, who was present before the first respondent, submitted that she had received the information sought and has, therefore, had no further grievance. The copy of the proceedings dated 1.3.2007 is marked as Ext.P13. An additional affidavit was filed by the writ petitioner before the first respondent through Ext.P14. By Ext.P1 order, the request of the second respondent applicant was rejected, and the writ petitioner was directed to pay a penalty of Rs.10,750/-. It is challenging Ext.P1; this writ petition is filed.
6. I have heard Smt.Vinitha.B. Senior Government and Sri. M. Ajay, the learned standing counsel for the first respondent.
7. Learned Government Pleader Smt.Vinitha argued that under Section 20 of the Act, the State Information Commissioner could impose the penalty only on failure to furnish information within the time specified under the Act, without any reasonable cause and in the instance case Ext.P10 and P12 affidavits clearly explain the reasons for the delay in furnishing the information, which the first respondent did not properly consider before passing Ext.P1 order. It is also her submission that going by Section 5 (2) of the Act, every public authority shall designate an officer as State Assistant Public Information Officer to receive the application for information for appeals under the Act for forwarding the same forthwith to the State Public Information Officer or senior officers specified under sub section (1) of Section 19 of the Act. According to the learned Government Pleader, the Assistant Public Information Officers are appointed only for the limited purposes of receiving and forwarding the application under the Act, and it is for that reason that the Assistant Public Information Officer is given five days grace period in computing the period for response specified sub section (1) of Section 7. It is also her argument that since the writ petitioner was not the appellate authority under the Act, it has to be treated that the second respondent has not filed a valid first appeal, and consequently, the second appeal filed before the first respondent was not maintainable. It is also her argument that the reasons furnished in the affidavit would clearly show that she had acted promptly, and this was known to the applicant, who intimated to the first respondent that she had received the information sought and that she did not have any further grievance in the matter further and as such the imposition of penalty was unwarranted.
8. The learned Government Pleader also cited the judgments of the Supreme Court in Union of India v. Namit Sharma [(2013) 10 SCC 359], State of Manipur and another v. Chief Information Commissioner and another (2010 KHC 6538), also the judgment of the Delhi High Court in CPIO Delhi Cantonment Board v. Central Information Commission (WP(C)No.2847 of 2014), Chief Information Commissioner and another v. State of Manipur and another (2011 KHC 5099) and also the judgment of this Court in Chacko P.C. v. State of Kerala and others [(1998) IILLJ 587 Kerala [1998 (1) KLT 907]. The judgment of the Allahabad High Court reported in Gyan Prakash Chathurvedi v. State of U.P. (2016 KHC 3575) was also relied on.
9. Per contra, the learned standing counsel. Sri.M. Ajay, the learned counsel for the first respondent, submitted that there had been a gross delay in furnishing the information in the instant case, and the callous attitude is writ large. He points out that the request was re-directed to the wrong person and that the information sought was very much available in the Home (C) Department itself, of which the petitioner is the Secretary. He further argues that the very purpose of the Act itself is to give information as stipulated in the Act within the time granted, and the authorities working under the Act should also bear that in mind when a request is made for supplying information.
10. Learned counsel also raised a preliminary objection that the Government Pleaders cannot appear for a person against whom the State Information Commission passes an order of penalty as it is their individual responsibility, more so when the Government has the responsibility to collect the fine from the person against whom a fine is imposed and to remit it and under such circumstances, the appearance of the Government Pleader in the case was questioned.
11. The undisputed facts of the case, as narrated above, clearly show that the authorities have delayed in furnishing the information sought by the second respondent. The reasons put forth for the delay in furnishing the information also cannot be accepted in full, taking into account the purpose of the Act. The stand of the appellant, if countenanced, would result in the implementation of the Act being stultified, besides rendering the salutary purpose behind the Act nugatory. Much before the enactment of the RTI Act in the year 2005, the Supreme Court repeatedly emphasised the people's right to information to be a facet of Article 19(1)(a) of the Constitution. It has been held that the right to information is a fundamental right and flows from Article 19(1)(a), which guarantees the right to speech. This right has also been traced to Article 21, which concerns the right to life and liberty. There are umpteen number of judgments declaring that transparency is the key to the functioning of a healthy democracy. The petitioner, though, submitted that she was not responsible for the delay and had promptly forwarded the application to the person concerned; no details of that or whose part the delay occurred was furnished to the State Information Commission despite availing of the opportunity to file an additional affidavit.
12. Sri. M. Ajay is right in his submission that when a penalty is imposed on an officer finding him guilty of not furnishing the information on time, ideally, the said person should challenge the order. However, the argument that the learned Government Pleader cannot appear for the Government officials against whom a penalty is imposed is doubtful in view of the provisions of Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases (Amendment) Rules, 2019 in particular, sub-rule 8 of Rule 86. Though the amendments were made only in 2019 and the writ petition was filed in 2007, I am of the view that since the Government Pleader can appear now on the basis of the Rules, the question or rather the proprietary of the Government Pleader appearing for the petitioner loses significance. As rightly argued by the learned Government Pleader, those matters entrusted by the Advocate General to a Government Pleader have to be carried out by the Government Pleaders. The observations made in the latter part of Ext.P1 order against the applicant for stating that she does not have any further grievance were totally unwarranted. True, the Commission will have powers to pass appropriate orders under the provisions of the Act, even if the complainant states that she does not intend to proceed. The administrative authorities are expected to act in fairness, and those observations made in the second part of the order clearly were not warranted in the facts of the case.
13. Even though I am satisfied that there has been a delay in furnishing the information and that the petitioner cannot be fully absolved, taking into account the fact that the information was furnished, albeit belatedly, that the applicant was satisfied with the same and also the fact that the petitioner has since retired from service, I take a lenient view in the matter by reducing the fine to Rs.3000/- so as to put a quietus to the above issue. This amount is imposed as the first appeal preferred by the applicant was not even considered, which again violates the provisions of the Act.
Accordingly, this writ petition is allowed in part by limiting the fine of penalty to Rs.3000/- instead of Rs.10,750/-, which the petitioner shall pay within one month from receipt of a copy of this judgment.
