2013 (12) TMI 1463 - HC - Indian Laws

Penalty u/s 2(h)(i) of the Right to Information Act, 2005 - Held that - The words/phraseology used in the first proviso to Section 20(1), especially shall be given a reasonable opportunity of being heard before any penalty is imposed on him lead to a pre-supposition that the authority first has to come to a conclusion on the appeal and in the event the appeal is allowed, then thereafter the question of penalty would arise. In my view, the proviso gives the losing parties a right to a notice and hearing as regards imposition of penalty after the verdict of the appeal is handed down. It is only thereafter that a party similar to the petitioners would then become aware that the verdict has gone against it and would then be posed with the possibility of a penalty being imposed. It is in this situation that the hearing on the penalty is necessary. Analogy from the M/s. Guduthur Bros. (1960 (7) TMI 5 - SUPREME Court) ruling establishes that though issuance of notice before imposing penalty had not been expressly provided for under the Income-tax Act, 1922, opportunity of hearing before imposing penalty pre-supposes a proper hearing. Such a hearing can be made possible by issuing notice of hearing on penalty. Thus the concerned party is called upon to show cause as to why penalty should not be imposed. To achieve this object, which appears to be the intention of the Legislature in providing a proviso to Section 20(1) of the Right to Information Act, it is incumbent upon the authority to issue a show cause notice under the proviso to Section 20(1). - Decided partly in favour of assessee.

Summary

Issues:
1. Whether the petitioners are covered under Section 2(h)(i) of the Right to Information Act, 2005?
2. Whether the first proviso to Section 20(1) of the said Act has been duly followed before penalty was imposed on the petitioners?

Analysis:

Issue 1:
The petitioners challenged an order by the State Information Commission, arguing they are not covered under Section 2(h)(i) of the Right to Information Act. The petitioners contended that despite appointing an Information Officer and creating an appellate authority, they are not covered as there is no State funding. The respondent argued that the trust received funding from the Central Government's Ministry of Agriculture, making it eligible under Section 2(h)(i). The court left this issue open for the lower authority to decide.

Issue 2:
Regarding the first proviso to Section 20(1), the petitioners claimed they were not given a reasonable opportunity to be heard before the penalty was imposed. The respondent argued that the petitioners were aware of the potential penalty when facing the appeal and should have addressed it. The court disagreed, stating that the proviso requires a conclusion on the appeal before penalty consideration. The court cited a Supreme Court case to emphasize the importance of a proper hearing before imposing a penalty. The court ruled in favor of the petitioners, quashing the previous order and directing a fresh hearing with due process, including issuing a show cause notice on penalty and allowing both parties to present their arguments.

In conclusion, the court partially allowed the petition, setting aside the previous order and instructing a fresh hearing with proper adherence to the legal provisions. Both parties were directed to cooperate, and the State Information Commission was expected to decide the appeal promptly.