Central Information Commission
Sekhor Bhattacharya vs The New India Assurance Company Ltd. on 30 June, 2020
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/NIACL/A/2018/161886-BJ
Mr. Sekhor Bhattacharya
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Manager,
The New India Assurance Company Limited,
Kolkata Regional Office-510000,
4 Mangoe Lane, Kolkata - 700001
... ितवादीगण /Respondent
Date of Hearing : 29.06.2020
Date of Decision : 30.06.2020
Date of RTI application 03.10.2016
CPIO's response 23.12.2016
Date of the First Appeal 03.01.2017
(wrongly typed as
2016 in 1st Appeal)
First Appellate Authority's response Not on record
Date of diarised receipt of Appeal by the Commission 11.10.2018
ORDER
FACTS The Appellant vide his RTI application sought information on 04 points regarding certified copies of orders issued in respect of appointments on compassionate ground in NIACL, till the date of filing of the RTI application; copy of new Circulars published from Mumbai HO; certified copies of salary structure of Sr. no. 27302 (Mr. Bhaskar Bhattacharya) after his Pre Charter settlement and other issues related thereto.
The CPIO, vide its letter dated 23.12.2016, denied disclosure of information under Section 8(1) (j) of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The Order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 7
Appellant: Mr. Sekhor Bhattacharya through VC;
Respondent: Mr. Manish Kumar, AO and Mr. Rajiv Chatterjee, Sr. Assistant through VC;
The Appellant reiterated the contents of the RTI application and stated that the CPIO has wrongly invoked Section 8(1)(j) of the Act for malafide reasons and the FAA had not found it obligatory to perform his statutory duty of furnishing a reply to the first appeal, as mandated under the RTI Act, 2005. He further alleged that the implementation of the RTI Act, 2005, in the Respondent Public Authority is far from satisfactory and that they were not adhering to the provisions of the RTI Act, 2005 and therefore, desired strict action to be initiated against the erring officials. In response to a query, the appellant apprised the Commission that Mr. Bhaskar Bhattacharya was his younger brother who passed away on 27.04.2001 during the tenure of his employment with The New India Assurance Company Limited. Since he was unmarried and since their mother is handicapped, an application for the appointment, on compassionate grounds, of the appellant was made by their mother. However, neither the appellant was appointed nor any compensation was paid by the respondent public authority. He further submitted that despite several orders of the Hon'ble Commission with respect to various RTI applications filed by the appellant on the same subject matter, no cogent reply has been furnished by the respondent till date. In its reply, the respondent submitted that the information sought relates to the personal information of Mr. Bhaskar Bhattacharya, who is a third party in the present matter. Further, the disclosure of the information sought for has no relationship to any public interest and would cause an unwarranted invasion of the privacy of the third party. Hence, its disclosure is exempted under Section 8(1)(j) of the RTI Act. Thus, an appropriate reply, as per the provisions of the RTI Act, was furnished to the appellant vide letter dated 23.12.2016. The respondent further apprised the Commission that the appellant was denied appointment on compassionate ground for the reason that as per the rules of compassionate appointment, he was overage at the time when he applied for the same. The Respondent further relied on its written submissions. The Appellant denied receipt of a copy of the written submission sent by the Respondent.
The Commission was in receipt of a written submission from the Respondent dated 25.06.2020 wherein while reiterating the background of the case, it was submitted that the CPIO had rightly denied the information u/s 8(1) (j) of the RTI Act, 2005, the same being Third Party information, as per the provisions of the RTI Act, 2005. On perusal of Notice of hearing received from the Commission, it was observed that the Applicant had attached a copy of his 1st Appeal dated 03.01.2016 (possibly wrongly dated) addressed to FAA, HO and that the HO had confirmed that no such 1st Appeal had been received at their end and hence no order was passed.
The Commission instructed the Respondent to provide a copy of the written submission to the Appellant by post.
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 relating to any private body which can be accessed by a public authority under any other law for the time being in force."Page 2 of 7
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 felt that timely response is the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this context, the Commission referred to the decision of the Hon'ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been held as under:
"14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away Page 3 of 7 through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy."
With regard to providing a clear and cogent response to the complainant, the Commission referred to the decision of the Hon'ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
" 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."
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 a CPIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information. 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, 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:
"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.
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.
With regard to the imposition of penalty on the CPIO/PIO under Section 20 of the RTI Act, 2005, the Commission took note of the ruling of Hon'ble Delhi High Court in W.P.(C) Page 4 of 7 11271/2009 Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. (delivered on:
01.06.2012) wherein it was held:
" 61. Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. 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 showcause 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. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to ful fill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute."
Similarly, 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."
Furthermore, the High Court of Delhi in the decision of Col. Rajendra Singh v. Central Information Commission and Anr. WP (C) 5469 of 2008 dated 20.03.2009 had held as under:
"Section 20, no doubt empowers the CIC to take penal action and direct payment of such compensation or penalty as is warranted. Yet the Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely.
......The preceding discussion shows that at least in the opinion of this Court, there are no allegations to establish that the information was withheld malafide or unduly delayed Page 5 of 7 so as to lead to an inference that petitioner was responsible for unreasonably withholding it."
The Commission also observed that the Hon'ble High Court of Delhi in the matter of R.K. Jain v. V.P. Pandey, CPIO, CESTAT, New Delhi in W.P. (C) No. 4785/ 2017 dated 10.10.2017 adjudicated on the correctness of an order of the Commission dated 17.04.2017 whereby the Respondent was cautioned to exercise due care in future and to ensure that correct and complete information is furnished to the RTI applicants. It was decided that:
"2. The grievance of the petitioner is that although the CIC had accepted that there was a delay in providing the necessary information to the petitioner, the CIC had not imposed the penalty as required under Section 20(1) of the Right to Information Act, 2005. It is well settled that imposing of the penalty is a discretionary measure. In Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 a division bench of this Court had considered the question whether the levy of penalty was discretionary and held as under..........
3. In this case it is apparent that the CIC had in its discretion considered that a order cautioning the CPIO would be sufficient. This Court is not inclined to interfere with such exercise of discretion."
Furthermore, the Hon'ble High Court in the matter of R.K. Jain v. CIC and Anr. in W.P.(C) 4152/2017 dated 10.10.2017 had held as under:
"5. The question whether the CIC had the discretion to restrict the penalty or whether penalty as provided under Section 20 of the Act is mandatory, is no longer res integra. The said question was considered by a Division Bench of this Court in Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 and the relevant extract of the said decision is set out below....
6. In view of the above, this Court finds no reason to interfere with the discretion exercised by the CIC. The petition is, accordingly, dismissed."
The High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition No.6504 of 2009 Date of decision: 04.03.2010 (State of Punjab and others vs. State Information Commissioner, Punjab and another); had held as under:
"3. The penalty provisions under Section 20 is only to sensitize the public authorities that they should act with all due alacrity and not hold up information which a person seeks to obtain. It is not every delay that should be visited with penalty. If there is a delay and it is explained, the question will only revolve on whether the explanation is acceptable or not. If there had been a delay of a year and if there was a Superintendent, who was prodding the Public Information Officer to act, that itself should be seen a circumstance where the government authorities seemed reasonably aware of the compulsions of time and the imperatives of providing information without any delay. The 2nd respondent has got what he has wanted and if there was a delay, the delay was for reasons explained above which I accept as justified."
The Appellant could not substantiate his claims regarding malafide denial of information by the respondent or for withholding it without any reasonable cause.
Page 6 of 7DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission noted that a series of orders in File Nos. CIC/DS/C/2010/000066 dated 16.09.2010, CIC/DS/C/2010/000381 dated 28.09.2010, CIC/DS/A/2011/000909 dated 16.01.2012, CIC/DS/A/2011/001177 dated 16.01.2012, CIC/DS/A/2012/001310 dated
10.09.2012, CIC/MP/A/2015/002180 dated 03.06.2016 and CIC/MP/A/2016/001115 dated 07.02.2017 have been passed by the Commission in respect of various RTI applications filed by the appellant on the same subject matter. Taking into consideration the issue of appointment on compassionate grounds and owing to the fact that the appellant's mother is handicapped, the Commission, on humanitarian grounds, instructs the FAA to re-examine the RTI application and provide a suitable response to the Appellant, as available on record and as per the provisions of the RTI Act, 2005. The Respondent is also instructed to forward a copy of the written submission sent to the Commission to the Appellant.
The above directions of the Commission shall be complied with within a period of 30 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country, as agreed.
The Appeal stands disposed accordingly.
(The Order will be posted on the website of the Commission).
Bimal Julka (िबमल जु का)
Chief Information Commissioner (मु य सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26186535/ [email protected]
दनांक / Date: 30.06.2020
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