Delhi HC asks PA (instead of PIO) to pay penalty to the applicant

[karira]

In a judgment related to the seeking of information by a whistleblower from the CVC, the Delhi HC has ordered that the PA itself will pay the penalty to the applicant. It said that the responsibility on the delay in providing information had not been fixed by the CIC in its second appeal, since the appeal had not come up for hearing and therefore the PA itself should pay the penalty of Rs 22,500 for 90 days delay in providing information.
Although it awarded legal costs of Rs. 30,000 to the applicant, it refused to provide compensation since the amount was not easily quantifiable.

Points to be noted:

1. It is the PA which is being asked to pay penalty
2. It is the HC, and not the CIC, which has imposed penalty
3. A show cause notice was not issued
4. Was a reasonable opportunity given to the PIO
5. PA has been asked to pay penalty to the applicant
6. Compensation has not been awarded since the court felt that it is not easily quantifiable. Even though petitioner had argued that if he had got the information in time, he would have got his promotions before his retirement...thus leading to financial detriment due to delay in providing the information.

26. As far as the letter dated 31st March 2005 is concerned, which
from the Petitioner’s point of view was most critical for him, there is
no satisfactory explanation by the CVC for the delay in supplying a
copy of the said letter to him beyond thirty days after 27th October
2005, on which date the CVC received the Petitioner’s application
under the RTI Act, together with the requisite fee, for supply of the
copy of the message sent by the CVC asking that his past denied
promotions be released. The said letter did not constitute ‘third party’
information as it did not emanate from anyone other than the CVC
itself. It directly concerned the withheld promotions of the Petitioner.
Even if the other documents pertaining to the disciplinary inquiry
against the Petitioner’s superior were perhaps available with the
IOCL, a copy of the letter written by the CVC to the IOCL obviously
was available on the file of the CVC itself. That is how the CVC
ultimately furnished a copy of the said letter to the Petitioner on 27th
February 2006.
27. It is submitted by Mr. Siddiqui that the CVC had nothing against
the Petitioner. He submitted that the Petitioner was not an employee
of the CVC and so there was no reason why the CVC would
deliberately not furnish such information to the Petitioner.
28. The Petitioner not being an employee of the CVC hardly provides
justification for the delay in the CVC supplying him a copy of its
letter dated 31st March 2005 to the IOCL. The question here is not
about the motive behind the non-supply of information within time,
but the plain and simple fact that there was a delay “without any
reasonable cause” thus attracting the penalty leviable under Section
20(1) of the RTI Act. The proviso to Section 20(1) states that the
burden of showing that he acted reasonably and diligently shall be on
the CPIO or the State PIO as the case may be.
29. The explanation offered by the CVC is not sufficient to excuse the
delay in furnishing the information. The CVC has not been able to
show that it acted ‘reasonably or diligently’ in the circumstances
outlined hereinbefore. However, this Court would lay the
responsibility for this delay in providing information collectively on
the CVC and not on its CPIO alone. The exercise that the Court is
now undertaking should in the usual course have been performed by
the CIC in the appeal filed before it by the Petitioner. But for some
reason, the CIC did not take up the appeal for a long time and this
compelled the Petitioner to approach this Court. The Petitioner is right
in contending that if the matter again goes back to the CIC only for
the purpose of determining what should be the penalty and the
compensation payable by the CVC, it would needlessly delay the
matter further.
30. The information sought for by the Petitioner from the CVC first
on 18th October 2005, and then on 27th October 2005 i.e. the CVC’s
advice to the IOCL on his promotions, was ultimately dispatched to
him only on 27th February 2006. It should have been given to him in
terms of Section 7(1) of the RTI Act by 26th November 2005 at the
latest. There is therefore a delay of over 90 days in the CVC providing
information to the Petitioner. The period of delay is nevertheless
limited to 90 days on the assumption that the information was finally
dispatched by the CVC to the Petitioner on 27th February 2006,
although the Petitioner claims not to have been delivered the said
letter and therefore not to have seen it till the counter affidavit was
filed by the CVC on 26th February 2008. There can also be no doubt
that the delay in furnishing the information to the Petitioner has
caused him severe prejudice inasmuch as he was unable to seek the
restoration of his denied promotions prior to his retirement in
December 2005. Accordingly a penalty at the rate of Rs. 250/- for
every day’s delay, as mandated under Section 20(1) of the RTI,
totalling Rs. 22,500/- (90 x 250) is directed to be paid by the CVC to
the Petitioner within a period of 4 weeks from today.
31. As regards the question of compensation payable in terms of
Section 19(8)(b) of the RTI Act, this Court is of the view that the said
amount is not capable of easy quantification. The interests of justice
would be served if the CVC is instead asked to pay the Petitioner the
costs of this petition which are quantified as Rs. 30,000/-. The said
amount should also be paid by the CVC to the Petitioner within a
period of 4 weeks from today. This order will also dispose of the
Petitioner’s appeal pending before the CIC.
32. With the above directions, the writ petition and the pending
application are disposed of. Copies of this order be delivered
forthwith to both the CVC and the CIC.

The full Delhi HC judgment is available on our sister website: home - RTI India: The Complete Information and Resourse Regarding Right to Information of India

(Requires separate registration since it is hosted on a separate server)

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[rajub]

Sponsorer

It is really surprising even High Court pronounces judgments which are clearly contradictory to the provisions of the RTI Act.

1] The RTI Act clearly says that penalty will be paid by the PIO. If the PA files review petition to HC or wp to SC and if this judgment is overruled what justice is done to either petitioner or to RTI cause?

2] There is no specific mention of penalty to be paid to the govt. but it has so far been routinely paid to the govt. (not to the appellant/complainant). I think anybody can file a PIL against this point as it will open a pandora's box and there will be a flood of petitions to earn the penalty.

[taurus]

It is unimaginable! But the position will remain unchanged as the PA will not go on appeal and waste their time for a 'public cause' of establishing the legal position. That is the pitiable part of the whole affair.

[smbhappy]

I have not read the full judgment. But why the petitioner went to high Court while his appeal was still pending before the CIC? Petitioner over jumped the procedure set out in the RTI Act. What was the need? High Court, too, bye-passed the procedure and instead of asking CIC to expedite the appeal. The order of the High Court is erroneous in holding CVC culpable of delay, without any cogent reason.

I hold the petitione resoponsible for all this mess.

[Sajib Nandi]

2] There is no specific mention of penalty to be paid to the govt. but it has so far been routinely paid to the govt. (not to the appellant/complainant). I think anybody can file a PIL against this point as it will open a pandora's box and there will be a flood of petitions to earn the penalty.

Can we refer to this judgment of the Hon'ble HC during hearing at the CIC, and demand that the penalty be paid to the appellant?