Information Commission Bound To Hear PIO Before Imposing Penalty For Alleged Violation Of RTI Act: Karnataka High Court

The Karnataka High Court has said if an order is passed by the Karnataka State Information Commission imposing penalty on a Public Information Officer, without considering the written explanation submitted by him or permitting him opportunity to give oral explanation, then the order is in violation of the principles of natural justice and is liable to be quashed.

A single judge bench of Justice Jyoti Mulimani allowed the petition filed by M Venkateshappa, and quashed the order of the Commission dated 18.01.2008 by which it imposed a penalty of Rs.10,000 on the petitioner.

The bench said “The commission has failed to take note of the fact that the petitioner was not in the office at the relevant point in time. In my considered opinion, the order passed by the commission is unsustainable in law.”

One B.H.Veeresh had submitted an RTI application seeking information in respect of Objection in Para 39 of Draft Audit Report of the Officers of the Executive Engineer conducted by the Chief Audit Officer, BBMP, Bangalore during 2011-12 and certain other information.

The office of the Chief Engineer transferred the said application to the Executive Engineer, Road and Infrastructure, Special Zone, BBMP, Bangalore. The Public Information Officer of the Executive Engineer (Roads and Infrastructure), Mahadevapura, Special Zone, BBMP issued a letter to the applicant stating that the audit report for the year 2011-12 was not received by his office.

The applicant preferred an appeal before the Superintendent Engineer, Road and Infrastructure, BBMP, Bangalore and the same was dropped since the applicant did not prosecute the same diligently. Following which the applicant filed an appeal/ complaint under Section 19(3) of the RTI Act before the Karnataka Information Commission.

On hearing the parties the Commission on 27-01-2016, directed the PIO to provide the applicant free of cost information. In compliance with the direction on 01.02.2016, the PIO & Executive Engineer (R&I) BBMP, Bangalore provided the available information (for 789 pages) to the applicant through his assignee Maheswar Singh and the same was acknowledged by the assignee of the applicant.

However, on 03.06.2016, the Commission directed to pay Rs.1,000/- (Rupees One Thousand only) as compensation to the applicant and directed to provide information free of cost on or before 16.09.2016. The applicant disputed the said information and stated that he has not received the complete information. At this juncture the petitioner was the PIO to Executive Engineer, Mahadevapura Zone, BBMP.

Thus on 28.12.2016, the Commission issued a notice to the petitioner and the petitioner submitted a report that a payment of Rs.1,000 was made to the applicant. He also submitted the explanation to drop the proceedings against him since he was transferred to another department and the information sought by the applicant was furnished and payment was made. However, the Commission went on to pass the impugned order.

The two contentions raised by Venkateshappa were of violation of principles of natural justice and arbitrary exercise of power by the commission.

The bench on considering the records and perusing the impugned order noted that “The commission neither considered the written explanation nor allowed the petitioner to submit his explanation orally.”

It thus held “I have no hesitation in saying that the commission has disregarded the principles of natural justice. On this count alone, the order is liable to be quashed.”

Explaining the importance of the dictum the bench said “The principle of Audi alterem partem is the basic concept of the principle of natural justice. The omnipotence inherent in the doctrine is that no one should be condemned unheard.”

It said “Whenever a public function is being performed there is an inference, in the absence of an express requirement to the contrary, that the function is required to be performed fairly. The inference will be more compelling in the case of any decision which may adversely affect a person’s rights or interests or when a person has a legitimate expectation of being fairly treated.”

It added “The significance of this approach is that prima facie it imposes on all administrators an obligation to act fairly. Without acknowledging this expressly, the majority of the decisions/orders of the public authorities are in practice no more than conscious or unconscious illustrations of the approach.”

Allowing the petition the bench said “I may venture to say that the Commission has failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the order passed by the commission is unsustainable in law.”

Case Title: M Venkateshappa And The Karnataka Information Commission & ANR

Case No: WRIT PETITION NO. 22745 OF 2018

Citation: 2023 LiveLaw (Kar) 99

Date of Order: 09-02-2023

Appearance: Advocate J D Kashinath for petitioner

Advocate Rajashekhar K for R1.