Appelants views regarding penalty cannot be considered

[karira]

CIC, in a recent decision has stated that the appellant's views cannot be considered by the commission in arriving at levy of penalty.
Wonder why the appellant wanted leniency shown to the PIO even after waiting for over 6 months !

5. It is pertinent to mention that though the views of the Appellant may be taken into consideration but that is not germane to any opinion arrived at by the Commission as far as levy of penalty is concerned. At the time of deciding any complaint or appeal, it is the prerogative of the Commission to form an opinion whether the PIO has without any reasonable cause, failed to furnish the information within the time limit mentioned in this Act. For that the Commission gives the PIO a reasonable opportunity of being heard. In this particular case, the Commission at the time of deciding the appeal in its earlier hearing dated 23 February 2007 had already observed that the PIO has, without any reasonable cause, failed to furnish information to the Applicant within the mandated time limit of 30 days.

Even at the cost of repetition, the Commission would like to point out that the views of the Appellant cannot be a reasonable cause for dropping penalty proceedings against the PIO...

Full decision can be viewed at:

http://cic.gov.in/CIC-Orders/Decision_18052007_18.pdf

[kushal]

Decision attached. Thanks for sharing.

[ganpat1956]

Karira, Para 4 of the decision suggests some similarities with the Gloria Kumar bribery case. What do you say?

[colnrkurup]

Section 20 of the RTI Act is very clear. The appellant has only to prove that the offences referred to in section 20 has been committed and has absolutely no say in deciding the penalty. It is purely the prerogative of the CIC. In this case the appellant should be ashamed of showing cowardice.

[mpai]

Originally Posted by colnrkurup

It is purely the prerogative of the CIC. In this case the appellant should be ashamed of showing cowardice.

Exactly. Its a pity most appellants do not know the law well. They seem to mix up the RTI Act with some of the many laws like IPC etc. where the think the respondents of the PA as criminals while the CIC as the judge. In this case its the media to blame. The press seem to highlight the cases penalty more prominently than the decision where the CIC has allowed disclosure of information and as a result given the poor citizen the wrong impression of the RTI Act.

Manoj

[smnislam]

It appears to be a good decision. The appelant should be ashamed

[vashisthvivek]

Originally Posted by colnrkurup

Section 20 of the RTI Act is very clear. The appellant has only to prove that the offences referred to in section 20 has been committed and has absolutely no say in deciding the penalty. It is purely the prerogative of the CIC. In this case the appellant should be ashamed of showing cowardice.

In this regard, it is submitted that 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 Commssion that the offence has not been committed.
Second most important part is that it is not the prerogative of the Commission to impose the penalties. It is obligatory on the part of the Commission to impose both penalties, when the Commission is of the opinion that the offence has been committed. 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. monetory as well as recommendation of disciplinary action.
I am expressing above views on the basis of laws of interpretation of statues only. However, it is bad that the law is not being implemented by the Commissions and the appropriate penalties are not be imposed. The aforesaid decision is a right step in the implementation of the law.

[smnislam]

I fully agree to the views expressed by vashistvivek

[sandeepbaheti]

Originally Posted by colnrkurup

Section 20 of the RTI Act is very clear. The appellant has only to prove that the offences referred to in section 20 has been committed and has absolutely no say in deciding the penalty. It is purely the prerogative of the CIC. In this case the appellant should be ashamed of showing cowardice.

It is the prerogative of the commission to decide whether PIO has unreasonably or malafidely delayed information. Penalty is a compulsion where PIO is found guilty in the opinion of the commission.
In this case the PIO by himself said that appellant is satisfied with the information so no penalty may be levied on him. This is a lame excuse by the PIO and there is no cowardice on part of the appellant.

[colnrkurup]

A strict interpretation of Section 20 of the Act expose that a mere "denial" of information is not liable for award of penalties. The PIO has to deny "WITHOUT ANY REASONABLE CAUSE " or "MALAFIDELY DENY " or " KNOWINGLY GIVE INCORRECT INFORMATION etc" or "DESTROYED THE INFORMATION" etc. to be liable for award of penalty. Further, it is the Information Commission who should be convinced that the denial is due to the above acts of the PIO. The act of conviction is descretionary. The commission "SHALL IMPOSE APENALTY" only, if he is convinced that the ibid act has been commited. It is not at all binding on the Commission to award the penalty if he find that though the information was denied, such denial was not due to the above acts

[rajub]

I think col. has correctly inerpreted sec 20 in post #10.

If an appellant wants the PIO to be punished he should present his case in such a manner that commission comes to the conclusion that PIO has acted malafide.

And if commission holds PIO guilty of malafide but does not award punishment then appellant has every right to go in for review or for writ demanding punishment.

[smnislam]

COlkurup and rajub have very correctly interpreted the provisions of the RTI act. however it should be our endeavour such situations do not arise. this issue can be made a part of the awareess campaigns.

[vijendra singh]

Read the cic decisins delivered by Gandhiji. Some good decisions showed that even if the appellant did not pray/ did not prove the PIO erring ; the IC issued show cause notice as per RTI spirit. Such must the actions of each & every IC of our country.