Central Information Commission
Asis Narayan Biswas vs Employees Provident Fund Organisation on 28 April, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : As per the Annexure.
Asis Narayan Biswas .....अपीलकता/Appellant
....िशकायतकता /Complainant
VERSUS
बनाम
CPIO,
Regional P.F. Commissioner-II,
Employees Provident Fund
Organisation, Regional Office,
RTI Cell, Red Cross Road, City Centre,
Durgapur, Paschim Bardhaman-713216,
West Bengal .... ितवादीगण /Respondent
Date of Hearing : 18/04/2023
Date of Decision : 18/04/2023
INFORMATION COMMISSIONER : Saroj Punhani
Note - The instant Second Appeals/ Complaints have been clubbed together for
decision as these are based on similar RTI Applications against the same Public
Authority.
Relevant facts emerging from appeals/Complaints:
1
File no. RTI CPIO's First Appeal FAA's order Second
Application reply dated filed on Appeal/Complaint
dated dated
104210 17/11/2021 09/12/2021 18/12/2021 03/01/2022 14/01/2022
109694 14/12/2021 12/01/2022 Not on Not on record 25/01/2022
record
116046 18/12/2021 18/01/2022 28/01/2022 15/02/2022 01/03/2022
118454 24/12/2021 19/01/2022 28/01/2022 15/02/2022 05/03/2022
122167 05/03/2022 05/03/2022 Not on Not on record 16/04/2022
record
128534 07/01/2022 09/02/2022 15/02/2022 23/02/2022 06/04/2022
133401 29/03/2022 26/04/2022 Not on Not on record 06/05/2022
record
139997 08/04/2022 04/05/2022 Not on Not on record 27/04/2022
record
145681 16/04/2022 05/05/2022 08/06/2022 14/06/2022 18/08/2022
136781 11/02/2022 08/03/2022 Not on Not on record 18/05/2022
record
CIC/EPFOG/A/2022/104210
Information sought:
The Appellant/Complainant filed an RTI application dated 17.11.2021 seeking the following information:
"1. Please provide the appropriate reason/s for passing the 'Order (No:- ENF/RO/DGP/WB/58505/CC-II/7A/437(ii) dated 01.11.2021) by Assessing Officer despite knowing that Employer has not yet complied with Summon No:- SRO/OGP/ENF/WB/58505/7A Summon/CC-II/1513(ii) dated 11.01.2017 to a T?
2. Please provide the appropriate reason/s for passing the 'Order (No:-
ENF/RO/DGP/W13/58505/CC-11/7A/437(ii) dated 01.11.2021) by Assessing Officer when undersigned being a de facto stake holder of this proceeding has not yet submitted his Final Submission (Ref:- undersigned letter dated 16.03.2021).
3. Why undersigned applicant was debarred from inspection the documents submitted by employer when there is a specific direction of Hon'ble Central 2 Information Commissioner passed in the File No:-
CIC/BS/A/2015/001205/11265 dated 15th September 2016 ?
4. Under which provisions of law a Quasi Judicial Proceeding could be concluded on the basis of prayer of employer when proper investigation & hearing both have yet to be completed?
5. Why R.P.F.C-II of your office attested F-11 submitted by Employer despite knowing it is a forged document?"
The CPIO furnished a point wise reply to the appellant/complainant on 09.12.2021 stating as under:
"1. There is no such reason/s is/are available/recorded in file.
2. There is no such reason/s is/are available/recorded in file.
3. There is no such matter is available/recorded in file to debar the applicant for inspecting the documents submitted by employer.
4. It is prerogative of the quasi-judicial Authority to adjourn or conclude the enquiry U/s 7A in exercise of power conferred upon under Section 7A of the Act on the basis of documents/records produced before him by application of his mind.
5. Not an information as per the definition mentioned under section 2(f) of RTI Act, 2005."
Being dissatisfied, the appellant/complainant filed a First Appeal dated 18.12.2021. FAA's order dated 03.01.2022 held as under:
"CPIO can supply such information which is available and existing and is held by the public authority or is held under the control of the public authority. CPIO is not supposed to create information that is not a part of the record of the public authority. CPIO is also not required to furnish information which require drawing of inference and/or making of assumptions or to interpret information or to solve the problem raised by the applicants or to furnish to hypothetical questions."
Feeling aggrieved and dissatisfied, the appellant/complainant approached the Commission with the instant Second Appeal.
3CIC/EPFOG/C/2022/109694 Information sought:
The Complainant/appellant filed an RTI application dated 14.12.2021 seeking the following information:
"Ref- Applicant's P.F A/C No:-WB/DGP/0058505/000/0000187 & UAN No:- Not Available.
Undersigned applicant being an ex-employee of "M/S, SHREE SHARDA ENGINEERING" [Estd Code No:- WB/DGP/0058505) vis-à-vis an affected person by the unsymmetrical 'Administrative Decision' taken by your organization in favour of the "M/S, SHREE SHARDA ENGINEERING" [Estd Code No:-W8/DGP/00585051 during the period from 10/2010 to 03/2014 Is seeking the "REAIONS" from your office U/S mentioned above. In fact, the modus operandi of your office dining this period is not only making serious contradiction with the numerous 'Sections; 'Paragraphs' and 'Clauses' of "Employees' Provident Funds and Misc. Provisions Act,19S2; The Employees' Provident Fund Scheme,1952; Employees' Pension Scheme,1995 & Employees' Deposit Linked Insurance Scheme,1976" but also a flamboyant exhibition of misfeasance. Here in after "M/S, SHREE SHARD ENGINEERING"
[Estd Code No:-WB/DGP/0058505will be referred as 'Establishment'.
1. Why your office issued P.F Code No. in the month of 12/2011 against the Establishment while the establishment started commercial activities with more that 20 (Twenty) employees from 10/2010 and please provide the Name & Designation of that officer who passed such order?
2. Why your office allowed establishment to submit Form No. 5A on 3rd September 2012 without taking an appropriate legal action despite knowing that establishment started commercial activities with more 20 (Twenty) employees from 10/2010 ? (Please provide the Name & Designation of the competent authority who passed this order).
3. Why your office did not take any appropriate legal action against establishment for gross violation of paragraph No. 36 &36A of the Employees' Provident Fund Scheme. 1952 and Paragraph No. 20 & 21 of Employees' Pension Scheme. 1995'?
44. Why your office deputed Mr. Goutam Dey as Enforcement Officer by issuing Office Order No. U.O.SRO/DGP/ENI/W13/51823 di 16.01.2013 for verification of P.F Compliance of the establishment and that too after 33 (thirty three) months from the date of starting commercial activities of the establishment?
5. Why your office did not shift the P.17 Coverage of the establishment from the month of 10/2010 instead of 11/2010 as per E.0 Mr. Goutam Dey report and reason for such denial?
6. Why applicability report prepared by enforcement officer Mr. Ratan Bhattacharjee on 17th May 2012 and submitted at your office on 11th dune 2012 after 20 (Twenty) months from the starting of the commercial activities of the establishment and that too without taking an official undertaking/clarification from the establishment?
7. Why your office did not take any appropriate action suo mato against the establishment despite knowing that establishment had 414 (Four Hundred Fourteen) employees strength out of 360(Three Sixty) were illegally excluded without following Paragraph No.27 of the Employees' Provident Fund Scheme. 1952?
8. Why your office issued order vide no. SRO/DGP/ENF/NEW Coverage/Shree Sharda Engg. Dated 17.05.2012 for preparation of applicability report and deputed E.0 Mr. Ratan Bhattacharya after almost two years despite knowing that establishment started her commercial activities from 01.101010 with more than 20 (Twenty) employees and please provide the Name & Designation of the officer passed this with attested copy of that order?
9. Why your office did not initiate appropriate action after officially receiving the recommendation of E.0 of your office Mr. Ratan Bhattacharya on 11.06.2012 to cover the establishment with 414 (Four Hundred Fourteen) employees? (Name of the competent authority with Designation ordered for non-compliance)
10. Why your office consciously provided a false and misleading information to undersigned applicant vide your letter no. RO/W11/DGP/RT1/2020- 5 21/A.N.B/46 dt.22.06.2020 that your office has not received any reply/report from Area Enforcement Officer Mr. Ratan Bhattacharya while the same was submitted by Mr. Ratan Bhattacharya on 11.06.2012?
11. Why your office did not take appropriate step against the establishment when E.0 Mr. Goutam Dey of your office in his post coverage inspection report at paragraph no. 03 categorically declared that 23 (Twenty Three) employees worked in the establishment were out of coverage in the month off 10/2010? Name & Designation of the officer who ordered to ignore Mr. Dey's recommendation with at attested copy of the said order?
12. Why E.0 Mr. Goutam Dey did not verify salary register of the establishment for the period of 10/2010 to 07/2013 instead of 11/2010 to 03/2011 and why Mr. Dey took into account the gross pay as a criteria for an employee to come under P.F coverage while paragraph no. 29 of the Employees' Provident Fund Scheme, 1952 does not endorse Mr. De 's observation?
13. why your office allowed enforcement officer Mr. Abdul Khalique Ansa,"
to submit a false report on 24th September 2021 where Mr. Ansan has stated that undersigned's fixed salary was Rs.18000/- per month while your office has already certified in F-10C on 3,3 October 2013 that undersigned's basic wages was Rs 6500/per month?
14. Why your office has not taken any appropriate action against enforcement officer Mr. Abdul Khalique Ansa', for not responding the queries raised by Mr. Assessing Officer during the hearing on 1. March 2019 in the ongoing 7A proceedings (E-proceedings Diary No. 110/2017) against establishment?
15.Why this file (WR/DCP/0058505) has not yet handed over to the vigilance department for proper and impartial investigation with Xerox certified copy of the file noting by the competent authority?"
The CPIO furnished a reply to the complainant/appellant on 12.01.2022 stating as under:
"Points no. 1- 9 & 11-15: Not an information as per the definition mentioned under section 2(f) of RTI Act, 2005.6
Point No. 10: The report is available but the contents as desired in the said RTI application are not available. Hence, it was replied that such report is not available."
Feeling aggrieved and dissatisfied, the Complainant/Appellant directly approached the Commission with the instant Complaint.
CIC/EPFOG/A/2022/116046 Information sought:
The Appellant/Complainant filed an RTI application dated 18.12.2021 seeking the following information:
"As your esteem office Is well acquainted with the fact that, Mr. Assessing Officer has passed a 'Provincial Order' in the E-Proceeding Diary No:- 110/2017 on 01st November;2021 having concluded the 'Hearing' which could have never been passed by Mr. Assessing Officer had the following 'Documents not beer submitted by the 'Establishment' prior to 01st November;2021 and properly examined by Mr. Assessing Officer. Hence, the following 'Documents' please be supplied by your office in pursuance of the 'Section' mentioned above.
1. Attendance and wages sheets/Registers for both category of employees those who were included under E.P.F Coverage and who were excluded from EPFO coverage during the period 10/2010 to 03/2014.
2. Appointment Letter's and Form No:-11 of excluded employees submitted by establishment.
3. Cash Book, Ledger, Bills, vouchers, books of accounts, work order, bank statement; labour License, P.Tax, Registration No & P.Tex Return.
4. ECR & Paid Challans for the period of 10/2010 to 03/2014 with monthly return (F-124) along with Form No-5 & Form No.-10.
5. Dues & Payment statement prepared by Area Enforcement Officer with name & Designation.7
6. Xerox certified Copy of Any other documents necessary for asserting the amount due from 10/2010 to 03/2014.
7. Copies of the Daily Order Sheets where undersigned 'Applicant's' submissions of dt-22rd March , 2018; 17" December,2019 ; 16"' March,2021; 20" April, 2021; 24" June,2021; 26" July,2021 & 16"
Ocotber,2021 has been recorded by Mr. Assessing Officer.
8. Copies of the response submitted by the Enforcement Officer of your organization Mr. Abdul Khalique Ansari in respect of undersigned's letter dt- 22.03.2018 & 17.12.2019.
9. Copy of the letter submitted by Shri K.N. Dubey, A/R of the establishment on dt- 20.10.2021.
10. Copies of the Documents examined by Sh. A.K. Ansari; A.E.O of your organization for preparation of his submission on dt-24.09.2021.
11. Any other Documents in pursuance of Summon No- SRO/DGP/ENF/WB/58505/7A summon/CC-1I/1513 (ii) dt- 11.01.2017 submitted by the establishment."
The CPIO furnished a reply to the appellant/complainant on 18.01.2022 and stated as under:
"The information and documents as 'sought for by the applicant in RTI application is voluminous, so you advised/requested to visit this office any working days to see the available concerned file and take Xerox copies, which is required by you as per RTI 2005."
Being dissatisfied, the appellant filed a First Appeal dated 28.01.2022. FAA's order dated 15.02.2022 held as under:
"In the matter relating to WB/DGP/58505, till date CPIO has received more than 46 RTI applications. RTI is not a forum to redress grievance or issues. Applicant may approach the proper forum to address his issues. For seeking information, as informed by CPIO, applicant may visit the office and obtain relevant copies after paying the requisite fees."8
Feeling aggrieved and dissatisfied, the appellant/complainant approached the Commission with the instant Second Appeal.
CIC/EPFOG/A/2022/118454 Information sought:
The Appellant/Complainant filed an RTI application dated 24.12.2021 seeking the following information:
"1. Please provide the Xerox certified copies of entire 'Documents' examined by AEO Shri A.K. Ansari for preparation the deposition submitted by him on 24th September;2021.
2. Please provide the Xerox certified copies of all 'Documents' and materials perused by Mr. Assessing Officer for preparation his order No. ENF/RO/DGP/WB/58505/CC-11/7A/437(ii) dated01.11.2021."
The CPIO furnished a reply to the appellant/complainant on 19.01.2022 stating as under:
"The information and documents as sought for by the applicant in RTI application is voluminous, so you are advised/requested to visit this office on any working days to see the available concerned file and take Xerox copies, which is required by you as per RTI Act, 2005."
Being dissatisfied, the appellant/complainant filed a First Appeal dated 28.01.2022. FAA's order dated 15.02.2022, held as under:
"In the matter relating to WB/DGP/58505, till date CPIO has received more than 46 RTI applications. RTI is not a forum to redress grievance or issues. Applicant may approach the proper forum to address his issues. For seeking information, as informed by CPIO, applicant may visit the office and obtain relevant copies after paying the requisite fees."
Feeling aggrieved and dissatisfied, the appellant/complainant approached the Commission with the instant Second Appeal.
9CIC/EPFOG/C/2022/122167 Information sought:
The Complainant/Appellant filed an RTI application dated 05.03.2022 seeking the following information:
"Please provide the copy of 'Action Taken Report (ATR) together with 'All Correspondence; File Noting and any other related Information for non- compliance of Sub-section (1b) of Section (4) of 'Right to information Act, 2005'."
The CPIO furnished a reply to the complainant/appellant on 05.08.2022 stating as under:
"There is no file reference (for which information has been sought for) has been mentioned in RTI application."
Feeling aggrieved and dissatisfied, the complainant/appellant directly approached the Commission with the instant Complaint.
CIC/EPFOG/A/2022/128534 Information sought:
The Appellant/Complainant filed an RTI application dated 07.01.2022 seeking the following information:
"Please provide the 'Full Name' of the cheirographist who has legally established the authenticity of 'Form No:-11' is said to have been submitted by "M/s SHREE SHARADA ENGINEERING" (Estd Code No:- WB/DGP/5850S) with 'Documentary Evidence' & 'File Noting'."
The CPIO furnished a reply to the appellant/complainant on 09.02.2022 stated as under:
"The F/11 in respect of Sh. Asis Narayan Biswas duly authenticated by Sh. Subhas Kumar Singh (Site-in-Charge) has been submitted in this office vide establishment letter dated 01.11.2013 copy of which was also placed during 10 proceedings under Section 7A duly attested by Sh. Krishnanand Dubey (Authorized Signatory/ Proprietor of the establishment). The Xerox copy of the letter dated 01.11.2013 is enclosed herewith."
Being dissatisfied, the appellant/complainant filed a First Appeal dated 15.02.2022. FAA's order dated 23.02.2022 held as under-
"Information has been provided by CPIO within due date."
Feeling aggrieved and dissatisfied, the appellant/complainant approached the Commission with the instant Second Appeal.
CIC/EPFOG/C/2022/133401 Information sought:
The Complainant/Appellant filed an RTI application dated 29.03.2022 seeking the following information:
"1. Please provide the appropriate reason/s for accepting and using as genuine an unverified and forged document (F-11) by Mr. Assessing Officer during the aforesaid proceeding and for whose interest (Please mention the full name with detail particulars of the beneficiary).
2. Please provide the appropriate reason/s with order copy/ copies and file noting for consciously providing a false and misleading information in your letter no. RO/WB/DGP/RTI/2021- [ 22/A.N.B/162/dt. 26.07.2021."
The CPIO furnished a point wise reply to the complainant/Appellant on 26.04.2022 stating as under:
"Not an information as per the definition mentioned under Section 2 (f) of RTI Act, 2005."
Feeling aggrieved and dissatisfied, the complainant/Appellant directly approached the Commission with the instant Complaint.
11CIC/EPFOG/C/2022/139997 Information sought:
The Complainant/Appellant filed an RTI application dated 08.04.2022 seeking the following information:
"1. Please provide the full name & address of the person for whose interest a forged Appointment Letter (in respect of undersigned applicant) was officially received by your office from the employer which was neither mentioned by Area Enforcement Officer (AEO) of your office Mr. Abdul Khalique Ansari in his reports nor by Mr. Assessing Officer in his Daily Order Sheets during 7A Proceedings under E.P.F & M.P Act/1952 (E-court Diary No.; - 110/2017).
2. Please provide the full name & designation of the authority directed (with file noting & all related correspondence) to accept the said Appointment letter."
The CPIO furnished a pointwise reply to the complainant/appellant on 04.05.2022 stating as under:
"1. There is no appointment letter of the applicant marked as "Forged"
available in records. So, the question for interest of any person does not arise.
2. Not applicable."
Feeling aggrieved and dissatisfied, the complainant/appellant directly approached the Commission with the instant Complaint.
CIC/EPFOG/A/2022/145681 Information sought:
The Appellant/Complainant filed an RTI application dated 16.04.2022 seeking the following information:12
"1. Please provide the Name & Detail Particulars of the person for whose interest, your office consciously furnished a false and misleading information together with misinterpretation of Section 8(1)(d); 8(1)(h) and 8(1)(j) of Right to Information Act 2005; vide your letter No, RO/WB/DGP/RT1/2021-21/A.N.B/158; dt: 31/12/2020 (copy available at your office) in St. No: 02,03 & 04.
2. Please provide the Name & Designation together with All Correspondence and File Noting of the Higher Authority of your office under whose direction the letter No: RO/WB/DGP/RTI/2020-21/ANB dt: 31/12/2020 was issued by your office for supporting the desired information in respect of SI No; 02, 03 & 04 of the said letter."
The CPIO furnished a reply to the appellant/complainant on 05.05.2022 stating as under:
"CPIO can supply such information which is available and existing and is held by the pub authority or is held under the control at the public authority. CPIO is not supposed to create information that is not a part of the record of the public authority. CPIO is also not required to furnish information which require drawing of inference and/or making of assumptions or to interpret information or to solve the problem raised by the applicants or to furnish to hypothetical questions.
However, the information and documents as sought for by the applicant in RTI applicator voluminous, so you are advised/requested to visit this office on any working day to see available concerned file and take Xerox copy, which is required by you as per RTI Act. 2005."
Being dissatisfied, the appellant/complainant filed a First Appeal dated 08.06.2022. FAA's order dated 14.06.2022 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant/complainant approached the Commission with the instant Second Appeal.
CIC/EPFOG/C/2022/136781 13 Information sought:
The Complainant/Appellant filed an RTI application dated 05.03.2022 seeking the following information:
"...following 'Reasons' are being sought:-
[1] Please provide the 'Reasons' for non-compliance the order of 'Assessing Officer' dt-01.03.2019 by the 'Area E.0' with all correspondence, 'File Noting' and other related information.
[2]Please provide 'Reasons' for unitarily concluding 'E-Proceeding Diary No:- 110/2017' by 'Assessing Officer without recording the statements of undersigned dt-22.03.2018;17.12.2019/.16.032021 with 'File Noting' & other related information.
(3)Please provide the 'Reasons' for not submitting paragraph wise response by the concerned 'Area E.0' of under-signed's letter dt-19.03.2015 together with all correspondence, 'File Noting' and other related information.
[4] Please provide the 'Reasons' for assessing the dues of only two employees in the %Proceeding Diary No:-110/ 2017' while 'Employer (Estd Code No:-WB/DGP/58505) had been working with more than 20 (Twenty) emp-loyees during the period from 10/2010 to 03/2014 together with all correspondence, 'File Noting' and other related information.
[5]Please provide the 'Reason? together with 'File Noting' for accepting the false 'Appointment Letter submitted by the 'Employer' (Estd Code No:-
WB/DGP/58505) in respect of undersigned 'Applicant'.
The CPIO furnished a point wise reply to the complainant/appellant on 08.03.2022 and stated as under:
"Points no. 1 to 5- Not an information as per the definition mentioned under section 2(f) of RTI Act, 2005."
Feeling aggrieved and dissatisfied, the complainant/appellant directly approached the Commission with the instant Complaint.
Relevant Facts emerging during Hearing:
The following were present:-14
Appellant/Complainant: Present through audio-conference. Respondent: Sudhir Ranjan, RPFC & CPIO through audio-conference.
At the request of the Appellant/Complainant, the instant Appeals/Complaints have been heard through audio-conference simultaneously. The Appellant/ Complainant stated that he is aggrieved with the fact that the CPIO has denied to provide the reasons of administrative orders in response to the above mentioned RTI Applications ignoring the fact that they are duty bound to disclose the needful as per the provisions of Section 4(1)(d) of RTI Act. He further expressed his dissatisfaction with each and every reply of the CPIO by contesting the fact that alleged false information was supplied to him ascribing malafide intent to obstruct the free flow of information sought. In this regard, he prayed the Commission that CPIO should be penalized for such faults and should also be directed to provide correct/ relevant information as sought for against each RTI Applications.
The CPIO at the outset invited attention of the bench towards his consolidated written submission dated 17.04.2023, relevant extracts of which are reproduced below for ready reference -
"....The Applicant/Appellant filed a complaint dated 19/03/2015 seeking PF enrolment from 24/01/2011 Instead of 01/04/2012.
His grievance was disposed off through a quasi judicial proceeding under section 7A of the EPF & MP Act 1952 and an order dated 01/11/2021 was accordingly issued.
Aggrieved by the above order, the applicant has till date filed more than 66 RTI applications, 30 First Appeals and 15 Second Appeals.
The applicant is trying to redress his grievance by filing multiple RTI's but the forum for review of the 7A order lies with the appropriate court of Law.
7A proceedings of the EPF & MP Act, 1952 is a quasi judicial proceeding within the meaning of section 193 & 228 and for the purpose of section 196 of the Indian Penal Code 45 of 1860. Applicant/Appellant appeared in the proceedings of 7A as a party. On perusal of all records and material produced before Assessing Officer 15 and after due application of mind, the said 7A proceedings was concluded and final order was issued by the Assessing Officer to all parties on dated 01/11/2021.
As per kind order of Hon'ble CIC vide No. CIC/EPFOG/A/2021/1355567 dated 04/01/2023 to inspection of relevant records of M/s Shree Sharda Engineering having PF No. WB/DGP/58505 pertaining to the said 7A enquiry was facilitated to the applicant on 28/02/2023. Appellant requested for providing 02 copies of the record and the same had been supplied to appellant by this office.
Sh. Asis Narayan Biswas was a supervisor drawing salary of Rs. 18000/- which was above the statutory salary limit of Rs. 6500/- and comes under the definition of excluded employee under Para 2(f) (ii) of the EPF Scheme 1952. He joined the establishment on 24/01/2011 and the employer enrolled him as member of EPF Scheme on 01/04/2012 as provided under Para 26(6) of the EPF Scheme 1952. He left service on 31/10/2012. After considerable time after leaving service, his grievance for enrollment in EPF Scheme w.e.f. 24/01/2011 instead of 01/04/2012 was disposed through a quasi judicial hearing under Section 7A of the EPF & MP Act 1952 on 01/11/2021. Applicant/appellant has been seeking various information relating to the above said case and CPIO has been providing the 16 requisite information as well as allowing him to see the records. Since the information has been provided to him, his appeal may be rejected on the above said ground as your undersigned "CPIO" is duty bound shall ever pray."
In case no. CIC/EPFOG/A/2022/128534 & CIC/EPFOG/C/2022/133401 - Upon Commission's instance, the Appellant/ Complainant contested and challenged the authenticity of 'Form No:-11' signed and submitted by the concerned competent authority for which he sought clarifications. In this regard, the CPIO clarified that although the authenticity /challenging the veracity of information does not conform to Section 2(f) of RTI Act. Nonetheless, a copy of relevant information i.e. Form 11 has already been shared with the Appellant/ Complainant and at the behest of the Commission, the CPIO agreed to resend a copy of the same to the Appellant/ Complainant again.
Lastly, the CPIO also emphasized the fact that during pendency and upon conclusion of 7 A proceedings, a copy of the enquiry report, daily orders sheets and other related documents have already been provided to the Appellant/Complainant which suffices the information sough for in the RTI applications and that no additional information is left at their end.
Decision:
The Commission based on a perusal of the facts on record observes that the information sought for in the impugned RTI Applications is not specific and determinate in a strict sense and is premised on Appellant's/Complainant's grievance as clarified by the CPIO during hearing and has an interrogative essence which are not covered under the definition of information as envisaged in Section 2(f) of the RTI Act and it is also not out of place to note that the details of authority person including their names and payment details, attendance records etc. as sought for in case no. CIC/EPFOG/A/2022/116046 & CIC/EPFOG/A/2022/128534 do contains the elements of personal information of third parties which cannot be divulged in view of Section 8(1)(j) of RTI Act. For better understanding the mandate of RTI Act, the Appellant/Complainant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:17
"2. Definitions.--In this Act, unless the context otherwise requires,--
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;.." In this regard, the Appellant's/Complainant's attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him...."
(Emphasis Supplied) 18 And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied As far as applicability of exemption clause of Section 8(1)(j) of the RTI Act to the instant matters are concerned, it can be garnered from a bare perusal of the text of Section 8(1)(j) of the RTI Act as under:
"8. Exemption from disclosure of information.--
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, xxxx
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information;.."19
In this regard, attention of the parties is also drawn towards a judgment of the Hon'ble Supreme Court of India in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794.The following was thus held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..."
Nonetheless, the replies and as a sequel to it further clarifications tendered by the CPIO during hearing are in the spirit of RTI Act, merits of which cannot be called into question.
Moreover, the Commission is not inclined to accept the contentions of the Appellant/ Complainant to initiate any penal action against the CPIO in the absence of any malafide ascribed on their part. In this regard, the attention of the Appellant/Complainant is drawn towards a judgment of the Hon'ble Delhi High Court in the matter of Registrar of Companies & Ors. v. Dharmendra Kumar Garg & Anr. [W.P.(C) 11271/2009] dated 01.06.2012 wherein it was held:
20" 61. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a show cause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed...."
Additionally, the following observation of the Hon'ble Delhi High Court in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 are pertinent in this matter:
"17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued."
However, to allay the apprehension of the Appellant/ Complainant, the CPIO is firstly directly to provide a copy of his latest written submission(s) free of cost to the Appellant/ Complainant immediately upon receipt of this order. Also, in furtherance of hearing proceedings for case no. CIC/EPFOG/A/2022/128534, the CPIO is further directed to resend a copy of Form 11 to the Appellant/Complainant (free of cost).
The above said direction should be complied by the CPIO within 7 days from the date of receipt of this order under due intimation to the Commission.
Further, upon insistence of the Appellant/Complainant, the CPIO is directed to provide a last opportunity of inspection of relevant and make available records related to instant RTI Application(s) to the Appellant on a mutually decided date 21 and time. The intimation of the date & time of inspection will be provided to the Appellant/Complainant telephonically and in writing by the CPIO. Copy of documents, as identified and desired by the Appellant shall be provided free of cost upto 50 pages and thereafter upon receipt of RTI fees as per RTI Rules, 2012 be provided by the CPIO.
The CPIO is also directed to ensure that due assistance is provided to the Appellant/Complainant during the inspection in accessing and identifying the records. The said direction should be complied with by the CPIO within 15 days from the date of receipt of this order and a compliance report to this effect should be sent to the Commission by the CPIO incorporating the details of the records provided for the inspection and copies thereof, immediately thereafter.
The appeals/Complaints are disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 22 Annexure S.no. Case no.
1. CIC/EPFOG/A/2022/104210
2. CIC/EPFOG/C/2022/109694
3. CIC/EPFOG/A/2022/116046
4. CIC/EPFOG/A/2022/118454
5. CIC/EPFOG/C/2022/122167
6. CIC/EPFOG/A/2022/128534
7. CIC/EPFOG/C/2022/133401
8. CIC/EPFOG/C/2022/139997
9. CIC/EPFOG/A/2022/145681
10. CIC/EPFOG/C/2022/136781 23