Central Information Commission
Mr Bipin Batra vs National Board Of Examinations on 23 May, 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/NBDOE/A/2018/633177-BJ
Dr. Bipin Batra
....अपीलकता/Appellant
VERSUS
बनाम
Capt. K. Paul James, Dy. Dir and CPIO
National Board of Examinations,
Ansari Nagar, Mahatma Gandhi Marg (Ring Road),
New Delhi - 110029
... ितवादीगण /Respondent
Date of Hearing : 22.04.2019/20.05.2019
Date of Decision : 22.04.2019/23.05.2019
Date of RTI application 17.07.2018
CPIO's response Not on Record
Date of the First Appeal 16.08.2018
First Appellate Authority's response 04.09.2018
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Commission in its earlier order dated 22.04.2019 in Appeal No.(s) CIC/NBDOE/A/2018/611376-BJ + CIC/NBDOE/A/2018/633177-BJ+ CIC/NBDOE/A/2019/600161-BJ-INTERIM, held as under:
"Keeping in view the facts of the case and the submissions made by the Respondent, the Commission adjourned the hearing in all these matters and fixed another date i.e. on 30th April, 2019 at 01.15 p.m. to resume the hearing. The adjourned date of hearing was informed to the Respondent during the hearing who acknowledged its communication in writing. The Respondent was directed to ensure that its written replies were delivered to the Appellant within the said period.
The DR is directed to fix another date of hearing in all these matters on 30th April, 2019 at 01:15 p.m."Page 1 of 10
Note: Subsequently, the Dy. Registrar, vide its e-mail dated 25.04.2019 fixed the hearing on 30.04.2019 which was further postponed to 20.05.2019 as IC (BJ) had to attend a meeting for the selection of State Information Commissioner, Maharashtra convened by the State Government of Maharashtra.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Bipin Batra along with Mr. Tarunvir Singh Khehar and Mr. Vishal Tripathi; Respondent: Capt. K. Paul James, Dy. Dir. (Admn.) & CPIO and Mr. Waize Ali Noor, Advocate;
Both the parties were present at the hearing. The Appellant's representative while reiterating the contents of the RTI application stated that the information sought had wrongly been denied by the Respondent citing Sections 8(1) (j) / 8(1) (h) /2(f) of the RTI Act, 2005 without justifying the reasonable grounds for denial. Moreover, the CPIO had responded in the matter on 30.10.2018 after a delay of approx 75 days from the date of filing of an RTI application which was in contravention to the provisions of the RTI Act, 2005. The Appellant's representative further contested the reply given under point no. 03 of the application stating that the procedure laid down under Section 11(1) of the RTI Act, 2005 was not followed by the Respondent. With regard to point nos. 12 & 13 also, it was submitted that the information sought was denied on the grounds of "Hypothetical query" and Section "2(f)" of the RTI Act, 2005. Moreover, the lists of letters, communications, RTI applications and the details of RTI applicants who have been granted personal inspection of the records were also denied stating that the same was not available. It was further alleged that the Annual Report of the Respondent Public Authority had not been published on its website as per mandatory disclosures provisions of the RTI Act, 2005. In its reply, the Respondent submitted that the available information had already been shared with the Appellant. In support, the Respondent also referred to the decision of the Commission in the matter of Shri Milap Choraria vs. Central Board of Direct Taxes in Complaint Number CIC/AT/C/2008/00025 dated 27th July, 2009. On being queried by the Commission whether they had uploaded their Annual Report under Section 4(1) (b) of the RTI Act, 2005, the Respondent feigned ignorance about it and assured that they will comply with the provisions of Section 4 of the Act. Thus it was evident that the compliance under Section 4 of the RTI Act, 2005 was not being strictly complied with.
The Commission was in receipt of a written submission from the Appellant dated NIL wherein while reiterating the contents of the RTI application, reply/order of the CPIO/FAA, it was submitted that the information sought had been wrongly denied by the Respondent under Section 8 (1) (h)/ 8(1) (j)/2(f) of the RTI Act, 2005. He further relied upon the decision of the Hon'ble High Court at New Delhi in the matter of Shobha Vijender vs. CIC, Sher Singh Rawat vs. CIC, B. S. Mathur vs. PIO, Bhagat Singh vs. CIC, as also the decision of the Commission in File No. CIC/SM/C/2011/000117/SG/13230 and the decision of the Hon'ble Supreme Court in the matter of Subramanian Swamy vs. Union of India, in a challenge to Sections 499 and 500 of the Indian Penal Code wherein it was held that "the reputation of an individual is a basic element of Article 21" etc. etc. Hence, it was inter-alia prayed to the Commission to direct the Respondent to supply the desired information as sought in the RTI application and to impose penalty upon the Respondents as also to grant compensation towards harassment caused to him due to Page 2 of 10 Respondents and to pass orders instituting an Inquiry into the violations of the RTI Act by the Respondent Public Authority, etc. During the hearing, the Respondent handed over a copy of its written submission dated 17.05.2019 wherein while re-iterating the response of the CPIO/ FAA, it was stated that the Departmental Vigilance Inquiry against the Appellant was underway in October, 2018, hence the desired information was not provided u/s 8 (1) (j)/ (h)/ 2 (f) of the RTI Act, 2005.
The Commission observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognized by the Hon'ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was 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 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 Appellant, 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."
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."
Page 3 of 10With regard to denial of information under Section 8(1) (h) of the RTI Act, 2005, the Commission finds the following observation of the Hon'ble High Court Delhi in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 pertinent in this matter.
"13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1) (h) and other such provisions would become a haven for dodging demands for information."
Furthermore, the Hon'ble High Court of Delhi in B.S. Mathur v. PIO in W.P. (C) 295 of 2011 dated 03.06.2011 had held that:
"19. The question that arises for consideration has already been formulated in the Court's order dated 21st April 2011: Whether the disclosure of the information sought by the Petitioner to the extent not supplied to him yet would "impede the investigation" in terms of Section 8(1)(h) RTI Act" The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8(1)(h) RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought "would impede the process of investigation." The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8(1)(h) RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would 'impede' the investigation...............
22. ...........The mere pendency of an investigation or inquiry is by itself not a sufficient justification for withholding information. It must be shown that the disclosure of the information sought would "impede" or even on a lesser threshold "hamper" or "interfere with" the investigation. This burden the Respondent has failed to discharge."
Furthermore, the Hon'ble High Court of Delhi in Adesh Kumar v. UOI and Ors. W.P. (C) 3542/ 2014 dated 16.12.2014 had held as under:
"10. A bare perusal of the order passed by the FAA also indicates that the aspect as to how the disclosure of information would impede prosecution has not been considered. Merely, citing that the information is exempted under Section 8(1)(h) of the Act would not absolve the public authority from discharging its onus as required to claim such Page 4 of 10 exemption. Thus, neither the FAA nor the CIC has questioned the Public Authority as to how the disclosure of information would impede the prosecution." The Commission also observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the Respondent present during the hearing nor the CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005. In this context, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case."
Moreover, as per the provisions of Section 7 (8) (i) of the RTI Act, 2005, where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. The Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain such as Annual Report and Annual Report of RTI, name & designation of the CPIO and FAA, etc. should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo- motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act. The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, Page 5 of 10 media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
In this context, a reference can also be made to the OM No. 1/32/2007-IR dated 14.11.2007 issued by the DoP&T, wherein it was decided that all Public Authorities shall designate the First Appellate Authorities and publish their particulars along with the particulars of the PIO. Furthermore, in this context a reference was also made to the OM no. No.1/6/2011-IR dated 15.04.2013 issued by the DoP&T pertaining to guidelines for the implementation of suo motu disclosures under Section 4 of the RTI Act, 2005.
The Hon'ble High Court of Bombay in the matter of Sayyed Education Society v. State of Maharashtra, WP 1305/2011 dated 12.02.2014 had held that public authorities are under a statutory obligation to maintain records and disseminate as per the provisions of the Section 4 of the RTI Act, 2005. The High Court in this respect, held as under:
Page 6 of 10"Needless to state that as observed by the Hon'ble Apex Court in paragraph No. 14 in the case of CBSE and Another (supra), Public Authorities are under an obligation to maintain records and disseminate the information in the manner provided under Section 4 of the RTI act. The submission of the petitioner that it is an onerous task to supply documents, therefore is required to be rejected. The Law mandates preserving of documents, supplying copies thereof to the applicant, in our view, cannot be said to be an onerous task."
Above all the Hon'ble Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015 had held as under:
"The ideal of 'Government by the people' makes it necessary that people have access to information on matters of public concern. The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for 'open governance' which is a foundation of democracy."
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) 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:
Page 7 of 10"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 so as to lead to an inference that petitioner was responsible for unreasonably withholding it."
Moreover, 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....Page 8 of 10
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 Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. The Commission expressed its displeasure on the casual and callous approach adopted by the respondent in responding to the RTI application. It was felt that the conduct of Respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
DECISION:
Considering the facts of the case and the submissions made by both the parties, it is evident that clear, cogent and reasoned response was not provided to the Appellant and that the CPIO exhibited lack of awareness and knowledge about the provisions of the RTI Act, 2005, therefore, the Commission directs Capt. K. Paul James, Dy. Dir. (Admn) and CPIO to show cause as to why penal action should not be initiated as per Section 20 (1) of the RTI Act, 2005 and provide a revised point-wise response to the queries raised by the Appellant in accordance with the provisions of the RTI Act, 2005 within a period of 30 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 with the above direction.
(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: 23.05.2019
Page 9 of 10
Copy to:
1. The Secretary, Ministry of Health & Family Welfare, 'A' Wing, Nirman Bhawan, New Delhi-110011
2. The President, National Board of Examinations, Ansari Nagar, Mahatama Gandhi Marg, Ring Road, New Delhi - 110029 Page 10 of 10