2013 (11) TMI 1533 - HC - Indian Laws

Court affirms penalty for Naib Tahsildar in RTI Act case, upholding second appellate authority decision

The court upheld the decision of the second appellate authority in a writ petition challenging an order passed by the State Information Officer under the ... Request for obtaining information - Transfer of application to another public authority - Time limit for transfer under the proviso to Section 6 - Assistance by officers under Section 5(4) and (5) - Penalty for refusal, denial or delay under Section 25 - Maintainability of second appeal and scope of writ reviewTransfer of application to another public authority - Time limit for transfer under the proviso to Section 6 - Request for obtaining information - Validity of the second appellate authority's finding that the petitioner failed to transfer/provide information within the prescribed time and therefore could be held liable - HELD THAT: - The Court examined the statutory obligation in Section 6 that where an application relates to information held by another public authority, the application or appropriate part must be transferred and the applicant informed, and noted the proviso requiring transfer as soon as practicable but in no case later than five days. The register entry showed receipt of the application on 30-11-2010 and forwarding to the Talathi and B.D.O. on 13-12-2010, breaching the five-day proviso. The second appellate authority, on the material before it, recorded that the petitioner could have furnished the information and yet avoided doing so. The High Court found that this factual conclusion was based on the documentary material and was plausible and reasonable, and therefore no interference was warranted with the finding that the petitioner failed in his statutory duty to transfer/provide the information timely. [Paras 10, 14]Finding that the petitioner failed to transfer/provide the information within the statutory time and therefore could be held liable is upheld.Penalty for refusal, denial or delay under Section 25 - Assistance by officers under Section 5(4) and (5) - Whether imposition of penalty on the petitioner under Section 25 was invalid for lack of hearing or because Talathi/BDO should have been primarily held liable - HELD THAT: - The Court considered the contention that Talathi and B.D.O. (who may have been the source of information) were responsible and that the petitioner, as Naib Tahsildar, could not be penalised. The second appellate authority considered the written material, recorded that the petitioner could have furnished the information, and found that the petitioner was given an opportunity to put forward his contentions before imposing penalty. The High Court held that penalty under Section 25 was imposed after recording the factual finding that the petitioner avoided furnishing information and that there was no absence of hearing; therefore the challenge to the imposition of penalty failed. [Paras 15]Imposition of penalty on the petitioner is sustainable and not vitiated for want of hearing or merely because Talathi/BDO were also involved.Maintainability of second appeal - Maintainability of writ challenge to disputed factual findings - Whether the writ petition can revisit the second appellate authority's finding as to whether a first appeal was filed - HELD THAT: - The second appellate authority observed that a first appeal had been filed by the applicant; the petitioner disputed that finding. The High Court held that such a disputed question of fact recorded by the second appellate authority could not be gone into in the writ petition, and even assuming no first appeal had been filed the applicant would have lost the opportunity of first appeal. Consequently, the contention regarding non-filing of first appeal did not entitle the petitioner to relief in writ jurisdiction. [Paras 11, 12]The High Court will not re-open the second appellate authority's factual finding about filing of the first appeal in the present writ challenge.Final Conclusion: The High Court found the second appellate authority's conclusions-regarding delay in transfer/provision of information, the petitioner's capacity to furnish the information, and the consequent imposition of penalty-to be supported by the material on record and reasonable; the writ petition is dismissed and the impugned order is upheld. Issues:Challenge to order passed by State Information Officer under Right to Information Act, 2005; Allegation of wrong remedy chosen by respondent; Imposition of penalty on petitioner; Non-consideration of first appeal by respondent; Review of order by petitioner pending before respondent; Responsibility of Naib Tahsildar in providing information; Allegation of penalty being exorbitant; Non-consideration of provisions of the Act by respondent; Lack of reasonable opportunity of hearing before imposing penalty; Transfer of application under Section 6 of the Act; Failure to forward application promptly to concerned authorities.Analysis:The judgment concerns a writ petition challenging an order passed by the State Information Officer under the Right to Information Act, 2005. The petitioner, a Naib Tahsildar, received an application for information from respondent No. 2, which was forwarded to the concerned Talathi and Block Development Officer for necessary action. However, respondent No. 2 chose the wrong remedy by filing a second appeal instead of a first appeal. The petitioner argued that he cannot be held responsible for providing the information directly as it pertains to other officials. The petitioner also contended that the penalty imposed was excessive and contrary to the Act's provisions.The petitioner's counsel highlighted the provisions of Section 5 of the Act, emphasizing the roles of Talathi and B.D.O. in providing information. The petitioner's representation for a review of the order had not been decided by the respondent. The counsel argued that the petitioner, as a Naib Tahsildar, is not obligated to provide information directly without receiving it from the relevant authorities. The petitioner's submission was supported by entries in the Register maintained under the RTI Act, showing the timely forwarding of the application to the appropriate officers.The respondent argued that the penalty imposed was justified, and the court should not interfere with the order. The court carefully considered the submissions and relevant provisions of the Act. Section 6 of the Act was analyzed, emphasizing the requirement to promptly transfer applications to the relevant authorities. The court noted discrepancies in the forwarding of the application, as it was not done promptly as required by the Act.The court addressed the petitioner's contention regarding the first appeal and the responsibility of B.D.O. and Talathi in providing information. The court observed that the petitioner could have supplied the information sought by respondent No. 2 based on the material on record. The court found that the penalty was imposed after considering the petitioner's actions and providing an opportunity for the petitioner to present his case. Ultimately, the court upheld the decision of the second appellate authority, finding it reasonable and based on the material placed on record, and dismissed the writ petition.