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Whether compensation under RTI can be granted even if no loss is suffered by applicant?

In the High Court of Kerala at Ernakulam
(Before Devan Ramachandran, J.)

The State Public Information Officer
Sri. Rajendran Pillai

W.P. (C) No. 31672 of 2011 H
Decided on August 4, 2017
Citation:2017 SCC OnLine Ker 15958 : (2017) 4 KLJ 468

The Judgment of the Court was delivered by Devan Ramachandran, J.:—

A rather curtate contention but with some import under the regime of the right to information for citizens is proferred by the petitioners for consideration by this Court in this writ petition. The casus belli, so to say, for this case is an order of the State Information Commission, constituted under the Right to Information Act, 2005, ordering compensation to the information seeker on the ground that information sought for by him has been unfairly and unreasonably withheld by the petitioners herein. The contention of the petitioners is that the order impugned is incompetent because compensation can be ordered only if the complainant has demonstrably suffered loss or detriment. They rely on the provisions of Section 19(1)(b) of the aforementioned Act in puissance of their assertion and urges in this writ petition that the impugned order be set aside since the complainant has concededly not suffered any pecuniary loss or other detriment which warrants reparation.

2. I will first place a compendious narration of the most essential facts, the assessment of which alone can test the strength of the above contentions.

3. This writ petition has been filed by the State Public Information officer attached to the Office of the Director of Public Instruction and by the Director of Public Instruction, Thiruvananthapuram impugning Exhibit P2 order of the State Information Commission, the second respondent herein, ordering an amount of Rs. 25,000/- to be paid by them as compensation to the first respondent, on the allegation that in spite of several orders of the authorities under the Right to Information Act in its hierarchy, including the Commission, the petitioners had withheld some information from the first respondent. The petitioners impugn Exhibit P2 on the ground that it has been issued without assessment of the true facts involved and in a mechanical fashion accepting the version of the first respondent, which is not supported by factual materials.

4. I have heard the learned Government Pleader for the petitioners, Sri. M. Ajay, learned Standing Counsel for the second respondent and Sri. Augustine Joseph, learned counsel for the first respondent.

5. The facts involved in this writ petition, as is discernible from the pleadings, would indicate that the first respondent, who is an applicant for information, approach the first petitioner herein seeking to obtain certain information relating to his service in the General Education Department as also to inspect two files numbered as C5 107910/85 and C5 84370/89. This application of the first respondent was replied to by the first petitioner on 12.04.2007, but being not satisfied with the same, the first respondent preferred a first appeal before the second petitioner, being the Head of the Department on 25.04.2007. An order was passed by the second petitioner on 15.06.2007, which was further appealed against by the first respondent before the State Information Commission by way of a statutory second appeal. This second appeal was disposed of by an order dated 06.02.2008, a copy of which has been produced and marked as Exhibit P1, wherein directions were given to the petitioners to provide all the files for inspection by the first respondent on a designated day. The first respondent alleges that on the day so fixed by the commission when he went to the Office of the first petitioner only one of the files, namely File No. C5 84370/89 was shown to him wherein eight relevant pages was seen to be missing. On such allegations the first respondent appears to have moved the State Information Commission again by an application which was disposed of as per Exhibit P2 order, which is impugned in this writ petition.

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6. A reading of Exhibit P2 order would show that the State Information Commission found that the first respondent was given only one of the files ordered to be shown to him, namely File No. C5 84370/89 and that even in the said file, eight relevant pages relating to the first respondent’s service were not seen. On such basis, the Commission concluded that the first respondent is entitled to an amount of Rs. 25,000/- as compensation which was directed to be paid by the State and to be recovered from the concerned authorities. It is this order that is impugned in this writ petition.

7. I have considered the submissions made by the petitioners and the respondents quite in detail. The series of orders passed in this case would show that what the first respondent wanted was information relating to his service, which according to him was available in files bearing Nos. C5 107910/85 and C5 84370/89. It appears that even when the matter was pending in second appeal before the State Information Commission, the first respondent took the stand that these files were missing. However, The Commissioner appears to have not accepted this stand and to have issued stringent directions in Exhibit P1 order, to make these files available for inspection by the first respondent. It was on such basis that the first respondent approached the first petitioner again and he was shown File No. C5 84370/89 and the first respondent then found that eight relevant pages were missing. These facts arealso recorded in Exhibit P2 order and interestingly the Commission concludes that the stand of the first respondent that eight pages in the said file are missing cannot be found to be untrue. In fact, what is stated in Exhibit P2 is that it approves the submission made on behalf of the petitioners that these pages are missing and that it was not deliberately withheld from the first respondent. After proceeding to such a conclusion and after finding that the petitioners were not really guilty of withholding information from the first respondent because the pages containing such information were actually missing at all times from the said file, the Commission entered an opinion that the first respondent is entitled to a compensation of Rs. 25,000/-. The petitioners herein contest this conclusion of the State Information Commission and they assert that the action of the Commission in awarding compensation even after finding that the relevant pages are missing and not deliberately withheld from the first respondent, is illegal and unlawful.

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8. I find sufficient force in the submissions made by the learned Government Pleader on the side of the petitioners. Exhibit P2 order has recorded clearly that eight relevant pages in the file were not presently available. However, there is nothing to show that these eight pages were available earlier and that it was withheld to the information of the first respondent. The Commission has not considered this aspect in that angle at all. The commission only says that the pages are presently unavailable but does not investigate or conclude whether these pages were available earlier or whether they have been kept deliberately out of the information of the first respondent.

9. In such view of the matter, I am not sure if the order, namely Exhibit P2, mulcting the State of Kerala with liability to pay compensation, to be recovered from its officers, would stand the test of law. I say this because under the provisions of Section 19(8)(b) of the Right to Information Act, 2005, the Commission would obtain jurisdiction to make such orders to compensate the complainant or to impose penalties only if loss or detriment has been suffered by the applicant. The operational survey of Section 19(8)(b) is unambiguous and concedes to no doubt. A reading of this Section would make the position limpid and for this purpose, I deem it apposite to extract it as below:

“19. Appeal.-(1) Any person who does not receive a decision within the time specified in sub-section(1) or clause (a) of sub-section(3) of section 7, or is aggrieved by a decision of the Central Public Information officer or the State Public Information Officer, as the case may be, may within thirty days from the expirty of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or the State Public Information Officer, as the case may be, in each public authority:
(8) In its decision, the Central Information commission or State Information Commission, as the case may be, has the power to,—
(b) require the public authority to compensate the complainant for any loss or other detriment suffered.”

10. In the case at hand, even though the first respondent says that he has suffered a loss of Rs. 3,50,000/-, the Commission has granted an amount of Rs. 25,000/- without any adjudication as to the actual loss suffered by him and also without assessing whether the information said to be not given to him was deliberately withheld by the authorities. In the absence of such an enquiry the order of the Commission certainly would not hold legal sustenance and I am, therefore, left without any option but to set aside the same. I do so.

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11. The order of the Commission thus having been set aside I need to now consider the nature of relief that can be granted in this case so as to obtain substantial justice and equity to the parties concerned. The first respondent is a hapless applicant for information who has been denied information either deliberately or on account of the design to which he was not a party to at all. The Commission will have to consider whether the eight pages in file No. C5 84370/89 had been removed only for the purpose of denying information to the first respondent taking into account the various factors, including the fact that the reply dated 12.04.2007, given by the first petitioner to the first respondent in response to his application, contained information which appear to be from the pages that are now said to be missing. If after such an evaluation, the Commission is of the view that these eight pages are not merely lost accidentally but that they were removed for declining information to the first respondent, then it would be certainly justified to invoke its powers under Section 19 of the right Information Act and to impose penalty or to order compensation to the first respondent. For such purpose I direct the Commission to complete the processes on the application, given by the first respondent, which led to Exhibit P2 order, after following due procedure and after affording an opportunity of being heard to the petitioners and to the first respondent as expeditiously as possible but not later than four months from the date of receipt of a copy of this judgment.

12. This writ petition is thus ordered. In the peculiar facts and circumstances of the case, I make no order as to costs and direct the parties to suffer their respective costs.

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