Central Information Commission
Siddhartha Mukherjee vs Office Of The Chief Labour Commissioner ... on 2 May, 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 : CIC/OTCLC/A/2022/616382
Siddhartha Mukherjee ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Office of the Chief Labour
Commissioner, Mumbai, RTI
Cell, Shram Raksha Bhawan, 3rd
Floor, Priyadarshini Shiv
Shrushti Road, Eastern
Expressway Highway, Sion,
Mumbai-400022, Maharashtra. .... ितवादीगण /Respondent
Date of Hearing : 25/04/2023
Date of Decision : 25/04/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 15/12/2021
CPIO replied on : 29/12/2021
First appeal filed on : 29/12/2021
First Appellate Authority order : Not on record
2nd Appeal/Complaint dated : 19/03/2022
1
Information sought:
The Appellant filed an RTI application dated 15.12.2021 seeking the following information:
"Brief background for the information sought:
The Memorandum of Settlement signed and executed between the management of the other public authority, i.e. HPC and its trade unions under Section 12(3) read with Section 18(3) of the Industrial Disputes Act, 1947 before the Dy. Chief Labor Commissioner (Central), Mumbai contains a clause No. 15 (extract of relevant page enclosed) which contains the provision regarding "Transfer/Redeployment/Retirement Benefits" which contains a clause of "transfer against disciplinary action" -- Copy enclosed. This clause has been invoked by HPCL in issuance of Inter-State Transfer Order issued to a clerical workman by the disciplinary authority who is not vested with any power to issue transfer order and is only concerned with completion of departmental inquiry proceedings commenced by him. The information relates to the life and liberty of the workman against whom departmental inquiry proceedings were instituted as well as his family members and the other public authority which placed him under suspension has not been disbursing the requisite subsistence allowance.
In the above backdrop, the following information may please be shared under the RTI Act, 2005:
1. The List of exact dates on which the committee of the public authority had met with the concerned for giving shape to this provision of "Transfer against Disciplinary action" from the date of commencement of LTS negotiations till 09/01/2021 i.e. the date when the LTS was signed before the Dy. Chief Labor Commissioner (Central), Mumbai.
2. Certified copies of the detailed agenda of such meetings may please be provided.
3. Certified copies of presentation made, if any before the group and detailed information about each such presentation may please be shared.
4. The copies of the minutes of such meeting(s) held along with all notes, annexure's etc., put before the committee for consideration.2
5. Information may be furnished whether the said clause of transfer during disciplinary action, if illegal, will render the document called Memorandum of Settlement illegal, null and void.
CPIO is requested to furnish the information sought within 48 hours as mandated by the RTI Act, 2005 under Section 7(1) since it is related to life and liberty of persons, including family members. RTI applicant believes that the clause 15 relied upon the disciplinary authority while Issuing Inter-State Transfer Order to the RTI applicant is not only illegal but also issuance of Inter-State Transfer Order during the pendency of departmental inquiry proceedings is beyond the scope of power of the disciplinary authority."
The CPIO furnished a reply to the appellant on 29.12.2021 stating as under:
"As per the definition of information, record and right to information under Section 2(1), 2(i) and 2(j) of the Right to Information Act, 2005 respectively, the information includes any material in any form, including records, documents, memos, e-mails, etc. In the instant case, you have sought suggestions, clarifications, views and opinions, which does come under the purview of Section 2(f), 2(i) and 2(j) of the Right to Information Act, 2005. Accordingly, the information sought may be read as information not available."
Being dissatisfied, the appellant filed a First Appeal dated 29.12.2021. FAA's order, if any, is not available on record.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through intra-video conference.
Respondent: Sunil Mali, RLC & CPIO present through video-conference.
The Appellant raised the following arguments in the instant Appeal -
"....the CPIO had wilfully/deliberately refused the information by circumventing the definition of information. Aggrieved at the decision of the CPIO, the Appellant exercised his legal remedy available and filed the first appeal 3 against registration No, OTCLC/A/E/21/00171 dated 29/12/2021 however, and the FAA chose not to dispose of the first appeal, for reasons not known, hence this second appeal, depriving the Appellant with the opportunity of the remedy available under the RTI Act, 2005, considering the fact that the Appellant had sought the information U/S 7 (1) of the RTI Act, 2005 which mandates supply of the information within 48 hours if the information was related to life and liberty of persons.
3. How the information sought was under the domain of Section 7 (1) of the RTI Act, 2005: The information was sought was regarding a Clause incorporated in the Memorandum of Settlement executed U/S 12 (3) of the Industrial Disputes Act, 1947 between the Management of the Public Authority and its Trade Unions regarding "Transfer (including Inter-State Transfer) of workmen during disciplinary action". Such proposed transfer clause is against the legal position laid down under the applicable Certified Standing Order as well as the transfer policy adopted and implemented by the Public Authority from time to time. Thus, by this clause an attempt has been made by HPCL to nullify the Certified Standing Orders i.e. the service rules which ire legally binding upon HPCL for dealing with its workmen defined U/S 2 (s) of the Industrial Disputes Act, 1947. In this connection, the copies of relevant extracts of the Certified Standing Order and the applicable transfer policy are annexed hitherto as ANNEXURE - A.
4. That the disputed transfer clause was implemented for the first time against the Appellant when he was placed under prolonged suspension on vague charges without issuance of any show cause notice or holding an inquiry (as the inquiry commenced against the Appellant was not completed/concluded) for which the Disciplinary Authority has failed to produce any evidence/complaint. Certified copy of the Appellant's Suspension Order is placed at ANNEXURE - B. During the pendency of the departmental inquiry, the Public Authority invoked the disputed transfer clause and the concerned Disciplinary Authority issued an Inter-State Transfer Order to the Appellant even though, the Disciplinary Authority is not empowered to issue transfer orders as the Disciplinary Authority is vested with the only power to take the disciplinary proceedings to a logical and reasoned end/conclusion for which he was appointed. The Disciplinary Authority, while issuing the Inter-State Transfer Order unilaterally, withheld the subsistence allowance payable to the Appellant thereby, depriving the Appellant in generating livelihood for himself and his family, imposing a condition that the day the Appellant reports at the transferred location, the Appellant's suspension would stand revoked without the approval of the Suspension Review Committee as laid 4 down in the applicable Certified Standing Order. In this connection, copy of the relevant extract of Certified Standing Order on suspension review committee is annexed hitherto as ANNEXURE - C.
5. That the Hon'ble Delhi High Court has also considered that the Appellant is not being paid any subsistence allowance for which it afforded the Appellant with the services of an advocate to be appointed by the Delhi High Court Legal Services Authority (DHCLSA for short). Copy of the Order is annexed hitherto as ANNEXURE
- D.
6. That the Appellant relies upon the decision of this Hon'ble CIC in the case titled Anil Kumar Gupta Vs. Veterinary Council of India in case No. CIC/SH/A/2014/000091 and Sourav Das Vs. Department of Industrial Policy.
Copies of the decisions are annexed hitherto as ANNEXURE - E. The Appellant also encloses herewith Hon'ble CIC decision in case No. CIC/HPCLD/A/2021/655325in which the Ld' Information Commissioner has directed the CPIO to furnish information regarding subsistence allowance of the Appellant. Copy of the decision is annexed hitherto as ANNEXURE - F...."
The Commission remarked at the outset that the CPIO did not turn up at the NIC venue for hearing. Therefore, in order to clarify the correct facts and figures, the registry of this bench made special efforts to connect the CPIO through audio and in response to it, the CPIO tendered his unconditional apology for not being able to attend the hearing through VC owing to some communication gap with his office; however, he reiterated the averred reply and explained that actual custodian of the information sought for is the Employer of the Appellant which is HPCL in the instant case. Thus, the Appellant should approach his employer organization to get the desired information.
Decision:
The Commission based on a perusal of the facts on records observes that the Appellant has filed the instant RTI Application under the proviso to Section 7(1) of the RTI Act deeming it to be a matter of his life and liberty, when there is nothing on record to prove the said contention.
Further, upon scrutinizing the contents of RTI Application, the Commission finds no scope of action in the matter with respect to information sought by the Appellant as well as the reply of the CPIO provided thereon; as the queries raised 5 by the Appellant are very unspecific/indeterminate which concededly do not conform to Section 2(f) of RTI Act.
For better understanding of the mandate of the RTI Act, the Appellant 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. In this regard, the Appellant'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) 6 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 The Appellant is therefore, advised to exercise his right to information in an informed and judicious manner in the future by filing the RTI Application before the concerned CPIO and also to pursue his grievance, if any, through proper administrative channel.
Nonetheless, by taking a liberal view in the matter, the Commission hereby directs the CPIO to provide a revised reply incorporating the fact regarding the actual custodian of information sought as mentioned by him during the hearing. The said reply should be provided by the CPIO free of cost to the Appellant within 7 days from the date of receipt of this order under due intimation to the Commission.
Lastly, the CPIO is strictly cautioned to exercise due diligence and ensure appearance before the Commission, else it would be viewed seriously.7
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 8