In the scenario posed by the querist, as rightly suggested in Post 3 & 4, the remedy lies in setting in motion the Appellate Process/Supervisory Jurisdiction of the Information Commission as prescribed under the Act. In order to corroborate the authenticity of documents supplied, if there is a reason to doubt, the applicant may file another query with the PIO requesting inspection of the relevant documents so as to gauge the efficacy of his apprehension regarding the supplied documents being false or misleading. This will help the querist in deciding further appropriate course of action. However, for penalizing a PIO the sine qua non to impose the penalty need to be satisfied and the power cannot be exercised in a routine or perfunctory manner.
One such case, where incorrect/false/misleading information was supplied and the PIO got scot free from the Commission and on further petition the High Court imposed penalty on PIO & Deemed PIO/granted compensation/recommended disciplinary action, is Ved Prakash Versus State Information Commissioner, Himachal Pradesh (CWP No. 8794 of 2011-J decided on 06.03.2013) relevant excerpts thereof are extracted as under:-
“19. Respondents No. 3 and 4 have not supplied the information within the period prescribed under Section 7 of the Act and have knowingly given incorrect and misleading information. The respondent No. 4, in addition to this, has also destroyed the information and has also obstructed the supply of information to the petitioner. It was the duty of respondent No. 4 to supply the information as per Sub-section (5) of Section 5 of the Act, but he has failed to do so. The respondent No. 1 besides imposing penalty upon Respondents No. 3 and 4, ought to have awarded compensation to the petitioner. Definitely, the petitioner has suffered due to non-supply of the information by the Respondents No. 3 and 4. He is liable to be compensated.
20. Accordingly, in view of the discussions and analysis made hereinabove, the writ petition is allowed. Annexures P/7, dated 17.07.2010 and P/10, dated 10.12.2010, are quashed and set aside. A penalty of `10,000/- each is imposed upon respondent No. 3 for supplying knowingly incorrect information and respondent No. 4 for knowingly giving incorrect and misleading information, destruction of information and obstructing the information. The petitioner is also held entitled to compensation of `50,000/- for the loss and detriment suffered by him to be paid proportionately by Respondents No. 3 and 4. The Court also recommends the Administrative Department to take action against respondent No. 3 as per Sub-section (2) of Section 20 of the Act, within a period of three months from today.”
There is one problem with the judgment i.e. the Court directed the compensation to be paid proportionally by PIO and Deemed PIO whereas u/s 19(8)(b) compensation has to be paid by Public Authority which after satisfying the order may consider recovering the same from delinquent officials.
In another case (ASHOK NAIK Versus CHIEF INFORMATION COMMISSIONER, SPECIAL CIVIL APPLICATION NO. 7434 of 2012 decided on 17/06/2013), the Gujrat High Court did not impose any penalty. The reasoning is follows:-
“3. In view of the aforementioned facts, a contention was raised before the Information Commissioner of the State that the Respondent No.4, while acting as Public Information Officer, knowingly supplied incorrect information and accordingly, a case was made out to proceed against the Respondent No.4, the then Public Information Officer, under Section 20 of the Right to Information Act, 2005. According to the Commission, when the information was supplied, a draft affidavit was available as a part of the relevant record and failure on the part of the Respondent No.4 to furnish and supply the information to the petitioner, for which, show cause notice was issued.---------- Keeping in mind the above provision of relevant Section, the Commission considered the relevant explanation and oral submissions made by the Respondent No.4, who had stated that he failed to give a copy of the aforesaid draft affidavit under the impression that a copy of the same need not be given since it had not been filed in the High Court in the concerned SCA No.5392 of 2003. At the same time, the Commission thought it fit that displeasure of the Commission about performance of duty cast upon the Respondent No.4 and under the Act, be conveyed and to be kept in the relevant personnel records. No order, however, was passed under Section 20 of the Right to Information Act, 2005.
4. Ms.Thakore, learned advocate for the petitioner would contend that the order impugned dated 9.3.2012, if perused as a whole, would reveal that the Respondent No.4, knowingly failed to furnish a copy of the affidavit in reply, though available on record and preceding paragraph of the impugned order further makes it clear that the Respondent No.4 had failed to perform his duties and therefore, such failure would bring Respondent No.4 within the meaning of Subsection 1 of Section 7 of the Right to Information Act, 2005. Having considered, prima facie, case to proceed against the Respondent No.4 for not furnishing the information, as envisaged, failure to pass an order of punishment under Section 20 of the Right to Information Act, 2005, by the Commission, amounts exercise of power contrary to the provisions of law, warranting interference by this Court under Section 226 of the Constitution of India. Inter alia, it is stated that the petitioner's right to seek information thus being rendered meaningless by inaction on the part of the Commission and therefore, prayer in para 24A be allowed. Learned advocate for the petitioner has placed reliance on the decision of the Delhi High Court in the case of Prem Lata vs. Central Information Commission in support of her arguments as above.
5. I have heard learned advocate appearing for the respondents and affidavit filed by the Deputy Municipal Commissioner and Respondent No.4 opposing admission and relevant prayers in this petition. It is submitted and so stated in the affidavit filed by the Deputy Municipal Commissioner, a specific contention is raised to penalize the Respondent No.4 in spite of pardon given by the Commission and explanation rendered by the Respondent No.4, accepted in the facts and circumstances of the case, this Court in exercise of powers under Article 226 of the Constitution of India would be loath in issue of any writ or direction in the backdrop of the facts about unsworn affidavit in reply available with the authorities. Since there was no malafide, deliberate or willful act on the part of the Respondent No.4 in supplying incorrect or incomplete information, the order passed by the Commission need not be interfered.
6. Upon rival submissions and perusal of record, it transpires that Subsection 1 of Section 7 of the Right to Information Act, 2005, envisages certain eventualities on which the Commission has to consider and therefore, pass the order under Section 20 of the Right to Information Act, 2005. On overall appreciation of facts and circumstances of the case, the Information Commission has concluded that explanation rendered by the Respondent No.4 was worth acceptable and no order could have been passed inflicting punishment under Section 20 of the Act and such discretion based on the material on record and satisfaction of the Commission do not appear, in any manner, arbitrary or contrary to the provisions of Subsection 1 of Section 7 and Section 20 of the Right to Information Act, 2005. Accordingly, no directions, as sought for, in terms of prayer 24A can be issued against the Commission. The decision in the case of Prem Lata vs. Central Information Commission & Ors of Delhi High Court relied on by Ms.Thakore, learned advocate appearing for the petitioner, of Delhi High Court has no applicability in the facts and circumstances of the case.
7. In absence of merits, this petition is rejected. Notice discharged.”
The judgment has been upheld by DB of the HC in LETTERS PATENT APPEAL NO. 1419 of 2013 ASHOK NAIK Versus CHIEF INFORMATION COMMISSIONER vide order dated 17/02/2014 by observing as under:-
“3. This Court is of the opinion that the order passed by the State Information Commissioner is in exercise of the discretion vested in it under sub-Section (1) of Section 20 of the Right to Information Act, 2005. Beside that, the Commission has rightly used the term mistakes / omissions. It is the settled position of law that it is the mischief, which is required to be punished and not the mistake / omission. This Court is also of the opinion that the State Commission has given required treatment / justice to the matter when the State Commission stated that, “ Municipal Commissioner, AMC, is directed to keep a copy of Commission’s displeasure conveyed to Shri Raut in the relevant personnel records of Shri. Raut.”
4. Coming to the judgment and order passed by the learned Single Judge, the petition was filed under Article 226 of the Constitution of India, which is a discretionary jurisdiction. The learned Single Judge exercised the discretion by not interfering with the order of the State Commission. This Court finds that the appeal cannot be entertained.
5. In the result, this Letters Patent Appeal is DISMISSED-----“
Thus it all depends on facts and circumstances of a particular case and how convincingly the pleadings are made before the appropriate authorities. It is not a case of single straightjacket formulae which fits in all situations.