Central Information Commission
Nityananda Das vs Controller General Of Defence Accounts ... on 22 October, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/CGDAC/A/2017/308563-BJ
Mr. Nityananda Das
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & ACGDA
Office of the Controller General of Defence Accounts (CGDA)
Ministry of Defence, Ulab Batar Road, Palam
Delhi Cantt. - 110010
... ितवादीगण /Respondent
Date of Hearing : 21.10.2019
Date of Decision : 22.10.2019
Date of RTI application 23.04.2016
CPIO's response 12.05.2016
Date of the First Appeal 17.05.2016
First Appellate Authority's response 01.07.2016
Date of diarised receipt of Appeal by the Commission 21.09.2016
ORDER
FACTS:
The Appellant vide his RTI application sought information on 06 points regarding the name and designation of the appropriate authority at the CGDA who had examined the PCDA (P) letter dated 16.10.2015 and thereafter issued letter dated 19.11.2015; certified copies of the existing file notings in respect of the examination of PCDA (P) letter dated 16.10.2015 and issues related thereto.
The CPIO, ACGDA vide its letter dated 12.05.2016 enclosed a reply dated 10.05.2016 wherein with regard to point no. 01 & 02 the certified copy of the letter dated 19.11.2016 was provided. As regards point no. 03 to 06 a reference was made to Section 2(f) of the RTI Act, 2005 to submit that the term "information" meant any material in any form. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 01.07.2016 provided point wise clarification with enclosures to the Appellant.
HEARING:
Facts emerging during the hearing:Page 1 of 6
The following were present:
Appellant: Mr. Nityananda Das in person;
Respondent: Mr. Satish Kumar, Sr. AO;
The Appellant reiterated the contents of the RTI application and stated that information on points 03 and 06 of the RTI application wherein he had sought the copy of Ministry of Finance (MoF) order 26.02.1966 and opinion/ advices of competent authority of CGDA on the applicability of relevant provisions contained in the Liberalised Pensionary Award Scheme while deciding appeals against rejection of ex-gratia lump sum compensation which were not provided. He submitted that the aforementioned queries were not clearly and cogently replied by the Respondent and reference to Section 2 (f) of the RTI Act, 2005 and OM dated 10.07.2008 was not relevant since he had sought pointed queries in his RTI application. In its response, the Respondent stated that the information on point no. 02 pertained to an order of MoF which was not available with them. As regards point no. 06, it was stated that the query was not in the nature of information u/s 2 (f) of the RTI Act, 2005. On being queried by the Commission, if point no. 03 of the RTI application was transferred to the MoF, the Respondent replied in the negative. On being further questioned, if an affidavit to the effect that the information sought in point no. 06 was not available with them could be issued to the Appellant, the Respondent replied in the affirmative and submitted that they would do so with the approval of the competent authority. The Respondent also submitted that the Appellant had resorted to filing multiple RTI applications on similar matter thereby causing disproportionate diversion of their resources. The Commission however, referred to its decision in a similar matter decided earlier in CIC/MOFIN/A/2016/302824/CGDAC-BJ dated 03.05.2018 wherein the Commission had instructed the PCDA (P), Allahabad to furnish a consolidated point wise response on each of the queries raised by the Appellant within 15 days from the date of receipt of the order, as agreed.
The compliance of the aforementioned decision could not be ascertained.
The Commission was in receipt of a written submission from the Appellant dated 12.10.2019 wherein it was stated that the CPIO had failed to act reasonably and diligently for providing information on para 3 and 6 of the RTI application. In para 3 he had sought copy of the M/o Finance OM dated 26.02.1966 which was an integral part of the Govt. letter dated 22.09.1998 which was now in vogue for granting ex-gratia lump sum compensation. However, the Public Authority CGDA was hiding the information to protect the officers who had taken the decision beyond their jurisdiction. Furthermore, denial of information on point no. 06 citing Section 2 (f) of the RTI Act, 2005 was misleading because both the CPIO/ FAA had purposefully given incomplete definition of information. Hence, it was prayed to the Commission to direct the CPIO to provide information on point 3 and 6 of the RTI application.
The Commission was also in receipt of a written submission from the Respondent dated 18.10.2019 wherein it was stated that the reply to queries provided vide letter dated 10.05.2016 still holds good.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information Page 2 of 6 relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "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."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the 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."
The Commission however observed that the CPIO/ FAA did not provide correct reply to the Appellant since as per the observations made by the Commission in the preceding paragraphs, neither was point no. 03 of the RTI application transferred to the concerned public authority nor was point no. 06 cogently replied to the Appellant. This indicates blatant callousness/ casualness/ Page 3 of 6 disregard to the provisions of the RTI Act, 2005 by providing an incorrect and misleading response to the Appellant. The provisions of the RTI Act, 2005 and various judgements on the subject matter clearly establishes that it is the duty of the CPIO to provide clear, cogent and precise response to the information seekers. Section 7 (8) (i) of the RTI Act, 2005 also states that where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. The Hon'ble Delhi High Court in the matter of J P Aggarwal v. Union of India (WP (C) no. 7232/2009 clearly stated that the PIO acts as the Pivot for enforcing the implementation of the Act. The relevant extracts of the decision are as under:
" 7"it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken".
The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
8.............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure."
Furthermore, the Hon'ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed that ".....The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow".
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only."
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
Page 4 of 6"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. "
In the context of directing the Respondent to issue an affidavit to the information seeker regarding the factual position in the matter, the Commission referred to the judgment of Hon'ble High Court of Delhi dated 30/10/2013 [W.P.(C)3381/2011- Ajay Kumar Gulati v/s Pushpender Nath Pandey and anr.] wherein it was inter-alia observed as under: -
"9. When the writ petition came for hearing on 28.01.2013, the following direction was issued to respondent No. 2:
"In view of the above, respondent no. 2 shall file an affidavit stating therein clearly as to whether relevant record has been destroyed and if that is so, whether information with regard to the same has been entered in the Records Destroyed Register. If such a register is maintained, the relevant extract from the said Registrar will accompany the affidavit."
10. In order to bring the whole controversy to an end, the respondent, vide order dated 01.07.2013 was directed to file affidavit of the concerned General Manager responding to the information sought by the petitioner vide application dated 30.10.2008 in respect of items No.2 to 16. In compliance of the aforesaid order, the respondent bank has filed an affidavit of its General Manager stating therein that the information sought by the petitioner filed vide application dated 30.10.2008 could not be provided to him as the same was not traceable and is still not traceable in the bank, despite best efforts to trace the said information. In view of the categorical affidavit filed by none other than the General Manager of the Bank, it is quite clear that the information to the extent it is not supplied to the petitioner is not available with the bank in any form. Since the information is not available with the bank, there can be no question of granting any direction to the bank to provide the same to the petitioner.
11. In the facts and circumstances of the case, no further relief can be granted to the petitioner."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Respondent to re-examine the matter and provide the information on Point No. 03 & 06 of the RTI application to the Appellant. In the event of unavailability of any Page 5 of 6 information in respect of the aforementioned query, the Respondent MoD is instructed to issue an affidavit regarding the factual position in the matter within a period of 15 days from the date of receipt of this order.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का)
(Information Commissioner) (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
(Dy. Registrar) (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 22.10.2019
Copy to:
1- The Secretary, Dept. of Ex-Servicemen Welfare, M/o Defence, Sena Bhawan, New Delhi - 110011 2- The Controller General of Defence Accounts, M/o Defence, Ulan Batar Road, Palam, Delhi Cantt.- 110010 Page 6 of 6