IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.01.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.21177 of 2006, 29651 of 2008 and 9497 of 2009 and M.P.NOs.2 OF 2006, 2 of 2008 and 1 and 2 of 2009 Thanjavur Municipal Commissioner, Municipal Office, Thanjavur Post & District .. Petitioner in W.P.No.21177 of 2006 K.Chandran .. Petitioner in W.P.No.29651 of 2008 K.Aruchamy .. Petitioner in W.P.No.9497 of 2009 Vs. 1.T.Ramachandran 2.The Officer on Special Duty Tamilnadu Information Commission, 89, Dr.Alagappa Road, Krishna Vilas, Purasavalkam, Chennai-64. .. Respondents in W.P.No.21177 of 2006 1.The Registrar, Tamilnadu Information Commission, Kamadhenu Super Market 1st Floor, Old No.273, New No.378 Anna Salai, Teynampet, Chennai. 2.The Collector, Coimbatore District. .. Respondents in W.P.No.29651 of 2008 1.Tamil Nadu Information Commission, Kamadhenu Super Market 1st Floor, New No.378, Anna Salai, Teynampet,Chennai-600 018. https://hcservices.ecourts.gov.in/hcservices/ 2.The Director, Municipal Administration, Ezhilagam, Chepauk, Chennai-600 005. 3.T.Susindharan .. Respondents in W.P.No.9497 of 2009 W.P.No.21177 of 2006 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records culminating in the order dated 21.4.2006 of the second respondent herein in Case No.14/Enquiry/2006. W.P.No.29651 of 2008 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the proceedings of the first respondent, the decision of commission in case No.1017/E/2008, dated 22.10.2008 and consequential proceedings of the second respondent in Roc.No.4922/2008/TP2 dated 28.11.2008 and to quash the same. W.P.No.9497 of 2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to order in case No.31699/Enquiry/2007, dated 12.03.2008 on the file of the first respondent and the subsequent proceedings made in Se.Mu.Na.Ka.No.18795/08/S2 dated 14.05.2009 on the file of the second respondent and to quash the same. For Petitioners : Mr.V.Raghupathi in W.P.No.21177 of 2006 Mr.V.Vijayashankar in W.P.No.29651 of 2008 Mr.D.Veerasekaran in W.P.No.9497 of 2009 For Respondents : Mr.V.Vaithiyalingam for R1 Mr.A.Arumugam, Spl.G.P. For R2 in W.P.No.21177 of 2006 Mr.G.Rajagopal, SC for M/s.G.R.Associates for R1 in W.P.No.29651 of 2008 and W.P.No.9497 of 2009 Mr.A.Arumugam, Spl.G.P. For R2 in W.P.No.29651 of 2008 and W.P.No.9497 of 2009 - - - - https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER In W.P.No.21177 of 2006, the petitioner, who was the Municipal Commissioner of Thanjavur Municipality, has come forward to challenge the order, dated 21.4.2006, wherein by which the second respondent the Information Commission held that for the information provided by the petitioner, there was an inordinate delay of 66 days. Therefore, the petitioner will have to pay Rs.16,500/- plus an additional fine of Rs.250/- per day from the date of the order till the date on which information was supplied. The Director of Municipal Administration was also recommended to take disciplinary action against the petitioner. The Secretary to Government was also directed to keep a watch over the proceedings and inform the Commission accordingly. 2.The ground taken by the petitioner was that the petitioner was not responsible for any delayed information and no show cause notice was given to him before penalty was imposed on him. The writ petition was admitted on 6.7.2006 and an interim stay was also granted. 3.In W.P.No.29651 of 2008, the petitioner was an Executive Officer of Vadavalli Town Panchayat. He has come forward to challenge the order of the first respondent Information Commission, dated 22.10.2008 and the consequential proceedings, dated 28.11.2008. By the impugned order, dated 22.10.2008, the Commission held that the Director of Town Panchayat should charge sheet the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and also to collect a maximum penalty of Rs.25000/- and in addition to same, they were asked to supply the information asked for by the applicant. 4.The petitioner sent a letter, dated 24.10.2008, stating that he has already furnished the information sought for by the applicant and only on the ground that he did not appear on 16.10.2008, the penalty has been imposed. He stated that since information was already furnished, under mistaken impression, he did not appear before the Commission. Notwithstanding his explanation, the Commissioner of Town Panchayats had requested the District Collector, Coimbatore to comply with the order of the Information Commission. Pursuant to the same, the second respondent District Collector has framed a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The writ petition was admitted on 16.12.2008. Pending the writ petition, an interim stay was granted. 5.On behalf of the first respondent Commission, a counter affidavit, dated 11.12.2009 was also filed. In the counter affidavit, with reference to the non issuance of notice, there is no answer. A vacate stay application was filed by the District Collector in M.P.No.1 of 2009. https://hcservices.ecourts.gov.in/hcservices/ 6.In W.P.No.9497 of 2009, the petitioner is the Executive Officer of Kuniyamuthur III Grade Municipality. He has come forward to challenge the order, dated 12.3.2008 passed by the first respondent Information Commission and the consequent proceedings, dated 14.5.2009 of the second respondent. 7.In the impugned proceedings, the Commission found that the petitioner was guilty of non supply of information. Therefore, a maximum penalty of Rs.25000/- was levied against him. The Director of Town Panchayats was also directed to frame a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. This was on the ground that he had failed to appear before the Commission despite summons. 8.It is the stand of the petitioner that summons sent by the Commission was not put up before him. However, the Director of Municipal Administration, by a further proceedings, dated 14.5.2009, directed the petitioner to pay the maximum penalty of Rs.25,000/- immediately as directed by the Commission. The writ petition was admitted on 19.5.2009 and an interim stay was granted. 9.The contention of the petitioner was that summons issued by the Commission to appear on the hearing date was not served on the petitioner and that he had not disobeyed the order of the Commission. 10.In view of the interconnectivity between the three writ petitions, they were heard together and a common order is passed. 11.As the issue raised here related to orders passed under Section 20 of the RTI Act, it is necessary to extract that provision. Section 20 of the RTI Act reads as under: "20.Penalties.- (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; https://hcservices.ecourts.gov.in/hcservices/ 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." (Emphasis added) 12.Section 20(1) while empowering the Commission to impose penalty of Rs.250/- for each day till application is received or information is furnished subject to a maximum penalty not exceeding Rs.25000/-, also provides that the concerned officer should be given reasonable opportunity of being heard before any penalty is imposed on the said authority. The burden is also shifted on the concerned officer to prove that he had acted reasonably and diligently. Section 20(2) further empowers the Information Commission to decide that in case an information officer without any reasonable cause refused to receive an application or has not furnished information within the time provided or malafidely denied the request for information or knowingly given an incorrect, incomplete or misleading information or obstructed in furnishing the information, it can recommend for disciplinary action against such officer under the service rules applicable to him. 13.Undoubtedly, Section 20 is penal in nature. The section itself mandatorily provides for a reasonable opportunity to an information officer before inflicting him with any penalty or recommending for disciplinary action. While Sections 6 and 7 enables the information officer to dispose of the request made in an application, in case of their disobedience, the said Act enables the Information Commission to deall with such cases. The power of https://hcservices.ecourts.gov.in/hcservices/ the Commission is provided under Section 18. Section 19 provides for an appeal. In case of refusal to furnish the information by the authority, the Information Commission can initiate an enquiry in respect of such refusal. Under Section 19, when an appeal is preferred, wherein an appropriate direction can be given for providing information, which is binding on the authorities concerned. It is only in cases, where the authorities have disobeyed the order of the Commission or there is specific finding that the obligation on the public authority was not performed in terms of Sections 6 and 7, the question of penalty or direction to take disciplinary action will arise. 14.In all these cases, the grievance of the petitioners was that they were not heard before the penalty was imposed and that there is no justification either to direct them to be placed under suspension or being recommended to their superiors to take disciplinary action under the relevant rules. In some of the cases, a defence was taken either about their non appearance before the Commission was due to pressing work elsewhere or that they had provided the relevant information to the applicants or that the applicants themselves have withdrawn the applications due to non availability of documents or that they had occupied their post only for a short while and that the incident had taken place before they were notified as an Information Officer. 15.In any event, a direction to recover the amount as penalty itself indicates that it is penal in nature and a further direction to take disciplinary action will result in their service career being jeopardised. Further, a day's delay involves penalty of Rs.250/- and a maximum penalty is fixed at Rs.25000/-. Therefore, the Commission has discretion to order penalties ranging from Rs.250/- to Rs.25000/-. But, in all the five cases, only maximum penalties were imposed on the petitioners. In some of the cases, direction to place them under suspension and to frame charges under the relevant service rules have also been recommended. In each of the case, the petitioners have some plausible defence to put forth. But no separate enquiries were conducted by the Commission. 16.Though Section 20 enjoins the Information Commission at the time of deciding any complaint or appeal and also to decide the question of penalty, a careful reading of the relevant provisions including first proviso to Section 20 will show that it obliges a reasonable opportunity of being heard on the question of penalty and in recommending initiation of disciplinary proceedings. It also requires the Commission to form an opinion about the conduct of an Information Officer. Therefore, it involves a separate action by the Commission against the officer concerned so that they can put forth their defence either about their bona fides or plead for minimum penalty. 17.When minimum and maximum penalties have been prescribed, the proportionality of such penalties can also be granted, which can be pleaded by any officer. Therefore, it obliges the Commission https://hcservices.ecourts.gov.in/hcservices/ to pass a separate order after issuing separate show cause notice to the information officer so as to enable them to satisfy the Commission with their defence. 18.In one case, the writ petitioner was not the notified officer at the relevant time. But it is necessary that penalty should be imposed on a named officer, who was acting as the Information Officer at the relevant time. The imposition of penalty and recommendation for disciplinary action can be taken on several grounds including the grounds of delay, malafide denial, incorrect or incomplete or misleading information, etc. Therefore, in each of the cases, penalty has to be in proportion to the charge levelled against an information officer. Unless the officer concerned is personally notified with the proposal of the Commission to impose a maximum penalty together with a direction to recommend disciplinary action, imposition of penalty may not be legally valid. The impugned orders are thus liable to be set aside both on the grounds of procedural violation and also on the question of proportionality of the penalty. 19.The Supreme Court in Om Kumar v. Union of India reported in (2001) 2 SCC 386 dealt with the scope of judicial review over administrative action affecting fundamental freedoms. The following passages found in paragraphs 54, 59 and 68 may be usefully extracted below: "54. Administrative action in India affecting fundamental freedoms has always been tested on the anvil of “proportionality” in the last fifty years even though it has not been expressly stated that the principle that is applied is the “proportionality” principle. For example, a condition in a licence issued to a cinema house to exhibit, at every show, a certain minimum length of “approved films” was questioned. The restriction was held reasonable (see R.M. Seshadri v. Distt. Magistrate Tanjore27). Union of India v. Motion Picture Assn.28 also related, inter alia, to the validity of licensing conditions. In another case, an order refusing permission to exhibit a film relating to the alleged obnoxious or unjust aspects of reservation policy was held violative of freedom of expression under Article 19(1)(a) (S. Rangarajan v. P. Jagjivan Ram29). Cases of surveillance by police came up for consideration in Malak Singh v. State of P&H30. Cases of orders relating to movement of goods came up in Bishambhar Dayal Chandra Mohan v. State of U.P.31 There are hundreds of such cases dealt with by our courts. In all these matters, the proportionality of administrative action affecting the freedoms under Article 19(1) or Article 21 has been tested by the courts as a primary reviewing authority and not on the basis https://hcservices.ecourts.gov.in/hcservices/ of Wednesbury principles. It may be that the courts did not call this proportionality but it really was. ..... 59. But, in E.P. Royappa v. State of T. N.32 Bhagwati, J laid down another test for purposes of Article 14. It was stated that if the administrative action was “arbitrary”, it could be struck down under Article 14. This principle is now uniformly followed in all courts more rigorously than the one based on classification. Arbitrary action by the administrator is described as one that is irrational and not based on sound reason. It is also described as one that is unreasonable. ..... 68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as “arbitrary” under Article 14, the principle of secondary review based on Wednesbury principles applies. 20.Though in a given case, this Court can go into the proportionality of a punishment, under normal circumstance, if the court is of the opinion that if a punishment requires reconsideration, it should be remanded to the very same authority for reconsideration. This was made clear in Om Kumar's case (cited supra). The following passages found in paragraphs 70 and 71 may be usefully quoted below: "70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India43 this Court referred to “proportionality” in the quantum of punishment but the Court observed that the punishment was “shockingly” disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India44 this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Ganayutham2. 71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as “arbitrary” under Article 14, the court is confined to https://hcservices.ecourts.gov.in/hcservices/ Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment." (Emphasis added) 21.In the light of the above, the impugned orders in all the writ petitions will stand set aside. The Commission is hereby directed to give appropriate show cause notices to the petitioners. After hearing them on the question of penalty as well as on its recommendation to take disciplinary action against them, can pass an appropriate order. All the writ petitions will stand partly allowed and to the extent indicated above. However, the parties are allowed to bear their own costs. Consequently, connected MPs are closed. vvk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Officer on Special Duty Tamilnadu Information Commission, 89, Dr.Alagappa Road, Krishna Vilas, Purasavalkam, Chennai-64. 2.The Registrar, Tamilnadu Information Commission, Kamadhenu Super Market 1st Floor, Old No.273, New No.378 Anna Salai, Teynampet, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 3.The Collector, Coimbatore District. 4.The Director, Municipal Administration, Ezhilagam, Chepauk, Chennai-600 005. + 3 ccs to M/s. G.R. Associates SR No.1624 to 1626 + 1 cc to Mr.V. Raghupathi, Advocate SR No.1782 BK(CO) SR/19.1.2010 W.P.NOs.21177 of 2006, 29651 of 2008 and 9497 of 2009 https://hcservices.ecourts.gov.in/hcservices/