Whether imposing a penalty is a prerogative

[vashisthvivek]

I would like to start a discussion as to whether imposing a penalty to the PIO by the Commissions is a prerogative or a legal obligation?
In this regard, it is submitted that when an opinion has been formed by the Commission that an offence has been committed by the PIO, it is under legal obligation to impose the penalty. The onus of proving that the offence has been committed is not on the appellant. The commission may form an opinion on its own (even without the pleadings of the appellant) during an inquiry or complaint that the offence has been committed, it may initiate proceedings for imposing the penalty. The only thing thereafter, the Commission has to do is to afford an opportunity to the concerned PIO of being heard. Now burden of proving that PIO acted reasonably and diligently is on the PIO himself. It means that the concerned PIO has to change the opinion of the Commission that the offence has not been committed. However, if there is no change in the opinion of the Commission after hearing the concerned PIO, it is under obligation to impose both penalties. This is clear from the words "it shall impose the penalty" in both the subsections of S.20. It would have been the prerogative of the Commission to impose the penalty, if the words "it may impose the penalty" were there. Therefore, I am of the view that when the commission has the opinion that the offence has been committed (whether formed with the pleadings of the appellant or in absence of the pleadings), the only action remains with the Commission is to impose both the penalties i.e. monetary as well as recommendation of disciplinary action.

I am expressing above views on the basis of laws of interpretation of statues only. In these circumstances, whether the Commissions are discharging their legal obligations?

[colnrkurup]

It is defenitely a legal obligation. Section 20 of the Act is very specific that " it shall impose " and not " it may impose ". " Shall " means do something inevitable, something that will take place, denoting an obligation or direction to do some act. Please note that " should " is the past tense of " shall ". As per the recent Supreme Court decision (not in RTI case), " Failure to give reasons is denial of justice". Therefore it implies that it is obligatory on the part of the CIC/SICs to give reasons for not impossing penalty when the PIO is proved guilty. The main problem is the non-accountability of CIC/SICs. Who will bell the cat ?

[vashisthvivek]

Originally Posted by colnrkurup

It is defenitely a legal obligation. Section 20 of the Act is very specific that " it shall impose " and not " it may impose ". " Shall " means do something inevitable, something that will take place, denoting an obligation or direction to do some act. Please note that " should " is the past tense of " shall ". As per the recent Supreme Court decision (not in RTI case), " Failure to give reasons is denial of justice". Therefore it implies that it is obligatory on the part of the CIC/SICs to give reasons for not impossing penalty when the PIO is proved guilty. The main problem is the non-accountability of CIC/SICs. Who will bell the cat ?

Thanks. Can you please provide the citation of the Supreme Court judgement you referred? As regards to the non-accountability of the CIC /SICs, we can always approach the High Courts. Secondly, the envirounment has to be created for the removal of the Chief IC and Information Commissioners. Although this is not a simple task, but intiatives are required to be taken.

[jps50]

I fully agree with Shri Vashisthvivek for his well studied observation. The appellant can file a RTI application against the SIC/CIC seeking reasons for not imposing mandated penalty. Thanks for starting this discussion.

[colnrkurup]

The case has not yet come in the journel. This case was reported in The Hindu of 20-6-2007. A Bench of Justice Arijit Pasayat and Justice SH Kapadia said "the giving of reasons is one of the fundamentals of good administration etc., etc.," where one Dayaram challenged the order passed by Allahabad High Court in a writ petetion filed by one Reghunath etc etc.,

[sidmis]

The article which Col. kurup has refered appeared here :-

The Hindu : National : “Failure to give reasons is denial of justice”

Sidmis

[karira]

Originally Posted by jps50

I fully agree with Shri Vashisthvivek for his well studied observation. The appellant can file a RTI application against the SIC/CIC seeking reasons for not imposing mandated penalty. Thanks for starting this discussion.

jps50,

Do not ask for "reasons" anytime in your RTI Application or appeal. The PIO might tell you that you are asking for his opinion, which is not allowed under the RTI act.
Better phrase it as:
"procedure followed in deciding appeal Nr....dated.....and if as per the RTI Act the correct penalty has been imposed"
Pre phrase this with the relevant quote from the RTI Act about "shall"

[vashisthvivek]

The Information Commissions are always required to be give reasoned decisions. If the Commission gives a decision without reasons, it is non-sustainable in the eyes of law. Now the question arises as to in which part of the decision, the Commission is required to give reasons. The reasons are always required, where there is descrition. If there is no descrition, then the need of reasons does not arise. The descrition in the decision is the opinion of the Commission as to whether the concerned PIO has committed an offence. Therefore, most important point in the decision is the opinion of the Commission with regard to the delay etc. on the part of the PIO. If Commission has a opinion that there was no reasonable cause for the delay etc., then it is bound to impose penalties. The commission can not give reasons for non-imposition of penalties as it is not descritionary on the part of the Commission to impose the penalty. The commission are only free to make its opinion. Therefore, I think there is no need to ask for the reasons for non-imposition of penalties. If the Commission is not imposition penalty even after forming an adverse opinion against the PIO, then the Commission is failing in its duties and therefore, this is a fit case for approaching the High Court.

[Satish Gupta]

This is a good cause for a filing a case in High Courts. The CIC and SICs have been ignoring the plain language of the RTI. There are numerous cases where CIC, and SIC found that the information was not released in the stipulated time, yet they did not impose the mandatory penalty.

I do not see how filing a RTI application with CIC, asking for reason why penalty was not imposed, is going to help. RTI allows you to get documents already in existence. There are no documents that will tell us why they did not impose the penalty.

If the idea of filing RTI with CIC is to make them aware of the problem, then it may be a worthwhile task. In any case, filing RTI application is such a simple process, it is good to do it, before undertaking a complex task of filing a writ in the High Court.