Last week, the High Court (HC) of Jharkhand in Ranchi upheld the 11-year-old state information commissioner (SIC)’s order of paying compensation to the RTI applicant to the tune of Rs60,000 to be paid by the errant public authority, which in this case, is the health and family welfare department.
This SIC order also levied a penalty on the public information officer (PIO) but directed the public authority to financially compensate the RTI applicant for providing unsatisfactory information.
Hence, a petition was filed by the principal secretary of health and family welfare in the HC of Jharkhand, contesting the SIC order of 13 April 2010. His single point contention in his petition was that, under the RTI Act, the order of penalty can only be levied on the PIO who is the only one “who can only be treated as the erring official in not supplying the information” and not on the public authority which has been erroneously asked to compensate the RTI applicant.
The counsel of the state information commission argued in the HC that the penalty has been levied on the health and family welfare department since it is a public authority under Section 19(8)(b) of the Act, 2005 and, hence, the compensation to the RTI applicant is to be imposed upon the public authority. The SIC quoted the provisions under Section 20(1) and (2) of the Act, 2005 under which it directed the public information officer to pay the penalty for not providing satisfactory information under Section 19(8)(b) of the RTI Act.
The HC observed that the following sections in the RTI Act qualified for the SIC to direct the public authority to give compensation to the applicant. They are:
Section 4 provides the obligation of public authority in maintaining all records while Section 5 casts the duty upon the public authority to designate the public information officer in the Central office or in the state office, as the case may be.
Section 19(8)(b) casts the duty upon the public authority to compensate the complainant for any loss or other detriment suffered, impose any of the penalties provided under this Act and reject the application.
Section 20(1) confers power upon the commission to impose penalties both in terms of money as well as with a recommendation to initiate departmental proceedings but prior to that a reasonable opportunity of being heard is required to be provided to the PIO.
On the other hand, the public information officer means the officer designated by the public authority to act as the public information officer. Hence, the RTI Act provides specific difference between a public authority and a public information officer because:
• The public information officer is the designated officer by the public authority;
• The public authority is the custodian of the record;
• The public information officer is required to provide information deriving from the custody of the public authority;
• Therefore, the obligation has been cast upon the public authority as per the provisions of Section 4 of the Act, 2005 to maintain all records.
The judge also stated that, if Section 2(h), 2(m), Section 4 and Section 5 would be read together; it would be evident that the public authority is ``the authority if established or constituted by the enforcement of law or under the Constitution. Meaning thereby, the public authority, if found to be within the meaning of Article 12 of the Constitution of India, the same would be said to be public authority. On the other hand, the public information officer means the officer designated by the public authority to act as the public information officer.’’
He further elaborated that:
• The Act, 2005 provides specific difference between public authority and public information officer;
• To the effect that, the public information officer is the designated officer to be designated by the public authority who is the custodian of the record; and
• The designated public information officer is required to provide information deriving from the custody of the public authority and; that is the reason the obligation has been casted upon the public authority as per the provision of Section 4 of the Act, 2005 to maintain all records.
The judge also analysed that “the object of the Act, 2005 is casting obligation upon the public authority who is the authority constituted either under the Constitution or any enforcement of law either by the Parliament or by the State legislature or anybody owned or financially aided by the state government.”
“Therefore, there is a clear distinction in between the public authority and the public information officer. Section 19(8)(b) and Section 20 provide the consequence in case of non-supply or inadequate supply of information as has been sought by the Information commission, therefore, the Act provides the provision of compensation as also penalty.”
The provision of compensation has been provided under the provision of Section 19(8)(b) by which a public authority is required to compensate the complainant for any loss or other detriment suffered.
The object of the Act to compensate the complainant by the public authority is because it is the public authority who is supposed to keep the document in safe custody and if the document is not found available, the compensation is required to be paid by the public authority.
Simultaneously, the state public information officer who is the designated officer by the public authority, has also been casted some responsibility or accountability to provide the information sought by the information seeker and if there would be any negligence in discharge of the aforesaid duty, the provision of penalty as also recommendation to initiated departmental proceedings has been provided under Section 20(2).
“This Court, on the basis of the aforesaid legal position has come to a finding that the state information commission is having the power to pass an order of compensation by resorting to the provision of Section 19(8)(b) of the Act, 2005. Accordingly, this Court declines to interfere with the order whereby and where under the state information commission has directed the concerned department of the State of Jharkhand to compensate the complainant by making a payment of Rs.60,000/- in exercise of power conferred under Section 19(8)(b) of the Act, 2005.’’
States RTI activist Vijay Kumbhar “There have been several instances where the information commissioners have given orders to the public authorities to the RTI applicant but this is a rare case wherein the public authority has sought legal intervention to contest it.’’
(Vinita Deshmukh is consulting editor of Moneylife. She is also the convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting, which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)