Central Information Commission
Kirti N Borkar vs Employees State Insurance Corporation on 18 September, 2017
CENTRAL INFORMATION COMMISSION
(Room No.315, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)
Central Information Commissioner
CIC/BS/C/2014/000265
Dr. Kirti N Borkar V. PIO, ESIC, New Delhi
RTI : 01.03.2014
FAO : 13.06.2014
Second Appeal : 08.10.2014
Hearing : 07.07.2017
Complainant : Present
Public authority : Absent
Decided on : 24.08.2017
Result : Penalty Imposed
FINAL ORDER- OF-RECTIFICATION
FACTS:
1. Dr. Kirti N. Borkar, Pathologist, ESIC, filed RTI application on 01.03.2014 seeking copy of inquiry report probing into her complaint against sexual harassment along with list of questions put to witnesses during inquiry. There was no response in 30 days.
2. She filed First Appeal with FAA Dr. S. R. Chauhan on 12.05.2015 at headquarters New Delhi, seeking (a) list of questions put to the witnesses during inquiry, (b) list of questions by team members to Dr V. P. Mathur and (c) copy of complaint sent to HQ by IMO, Dr. R. K. Mehra.
3. Dr. S. R. Chauhan, Medical Commissioner and Appellate Authority in his order dated 13.06.2014, mentioned that "information was already furnished on 24.04.2014, applicant may seek personal hearing after prior appointment if she feels that the information supplied is not as per her satisfaction". This letter also contained mandatory address of CIC for second appeal. She complained that though FAO claimed that copy of information dated 24.04.2014 is attached, it was not attached.
4. After this order by FAA, the CPIO Mr. S. K. Garg, wrote a letter on 26.06.2014 to MS, ESI Hospital Manesar, claiming that he was forwarding application "dated 12.05.2014 received on 03.06.2014 in photocopy in respect of CIC/BS/C/2014/000265 Page 1 aforesaid applicant..." requesting to furnish information directly to the applicant after charging the cost.
5. She wrote in her complaint dated 23.09.2014, before CIC, saying "I received misleading information from CPIO (S.K. Garg) dated 26.06.2014 addressing Medical Superintendent Manesar, scolding her for applicant's direct application through RTI to Head Quarters, New Delhi, and I received letter from Appellate Authority, Dr S. R. Chauhan dt 13.06.2014 on 01.07.2014. Hence I again appealed to the Appellate Authority on 04.07.2014. But till date (23.09.2014) I have not received the information sought by me". She wrote on 04.07.2014 to First Appellate Authority second time appealing to give information and she called it 'second appeal'. It is in fact second time appeal to FAA. She requested that she needed information urgently as the matter was pending adjudication before Magistrate & Sessions Court, Tijara, Bhiwandi (Rajasthan) for the criminal case against accused. In her complaint before CIC she sought both information and action against CPIO and FAA.
6. The Commission's order dated 20.04.2017: During the hearing of complaint on 10.04.2017 through video conferencing from NIC studio Alwar (Rajasthan), the complainant alleged that the inquiry was completed in January 2014 into her complaint of sexual harassment, but copy of the inquiry report was deliberately not furnished. She said: "I have filed RTI application on 01.03.2014 seeking copy of inquiry report. There was no response. I was entitled to have copy of inquiry report as per Section 13 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 within 10 days after the Internal Committee completed inquiry. I was working as pathologist, having children going to school in Bhiwandi. I was transferred to Manesar. There is no reply of CPIO till 26.06.2014, and the letter dated 26.06.2014 was not a response but letter forwarding my RTI application to ESI Manesar". All these points are confirmed by the record. This proves that the CPIO did not respond to her. But strangely Dr. S. R. Chauhan, Medical Commissioner and Appellate Authority, ESIC Head Quarters at New Delhi, in his order claims that information was provided to her on 24.04.2014, claimed that it was enclosed. But no such enclosure was found even in the bunch of papers submitted by representatives of ESIC to the Commission today. It is clear that two months after First Appellate authority disposed of the case, the CPIO forwarded the RTI application to ESI hospital, Manesar. The First Appellate CIC/BS/C/2014/000265 Page 2 Authority mentioned in his order dated 24.04.2914 the names of appellant, CPIO and deemed CPIO Sh. Akshay Kala, Jt. Director (Med) ESIC HQ. The communication of FAA does not reflect whether FAA has conducted any hearing. There was no hearing at all.
7. She wrote to the Medical Commissioner & Appellate Authority on 4.7.2014:
"I have been transferred to ESIC Manesar, because of which I have to leave my school-going-children at the mercy of strangers. In this situation it is difficult to leave my children at Bhiwandi and come all the way to headquarters New Delhi, more than 100 km approximately... I urgently need information... mentioned in letter dated 12.5.2014 and help me in getting the justice".
8. She submitted to the Commission that as none furnished the copy of inquiry report, she personally met Mr Kala, Jt Director at Head Quarters on 17.04.2014 saying that as per Gazette notification 13 of Act 2013 she has to get a copy within ten days. Then the ESI hospital, Manesar has provided her copy of inquiry report on 30.04.2014, but other points of her RTI request were ignored. All this shows that these officers in ESCI deliberately denied her RTI. Unfortunately, the senior officer like Medical Superintendent (also First appellate Authority) too appeared to have abdicated statutory duty (under RTI Act) to conduct hearing of the first appeal and justify his conclusion.
9. The complainant stated that accused obtained bail after she has lodged FIR for sexual harassment, by presenting copy of this inquiry report. From this, appellant inferred that he must have got an order favourable to him and alleged that this showed the bias of officers and authorities under RTI Act against her favouring accused. Because of this, accused got bail, while victim could not even file further appeal, she said.
10. Mr. Praveen Dabas, Asst. Director explained that delay in giving report was due to internal processing of RTI application, which totally contradicts the letters and dates on record and the contentions of the appellant.
11. Alleging that there were serious defects in conducting inquiry, she appealed before CAT, Jaipur. She felt aggrieved that because of undue delay in furnishing a copy of inquiry report she could not file the appeal in time, thus she was deprived of her right to fair inquiry and copy of report along with necessary CIC/BS/C/2014/000265 Page 3 documents. She sought list of questions put to witnesses as they were leading questions during the inquiry, especially the questions put to Dr. V. P. Mathur.
12. Very purpose of providing a specific right to copy of inquiry report under Section 13 of Act of 2013 was to help the women-victims from tactics of other officers acting together to deny the information and chances of appeal against improper inquiry. Two enactments, the Right to Information Act and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provided her right to inquiry and reports, but the woman who complained against the sexual harassment was denied these two statutory rights. The public authority should have furnished the copy of inquiry report within 10 days as mandated by the Act of 2013. If the allegation is proved, the authority has a duty to take further action and if not proved, the complainant should be informed about and facilitate her to exercise the right of appeal to an appropriate forum. Providing copy of inquiry report to the accused officer while withholding it from the complainant-victim, is totally unfair. The complainant suffers the risk of dismissal at threshold, if appeal is filed beyond the period of limitation, and thus the public authority caused detriment to the victim as far as her right to appeal is concerned. To that extent it also amounts to deprivation of her right to information that was delayed unduly beyond 60 days. In addition, she was harassed and made to visit headquarters office several times and personally represent before senior officers. The conduct of First Appellate Authority and the CPIO is highly unbecoming of their seniority in public authority and also their responsibility as designated officers under Right to Information Act. It is pathetic that these two officers and joint director Mr. Kala either were unaware of Section 13 of Act of 2013 and RTI Act, or did not bother to know and implement those rights as far as complainant is concerned.
13. The Supreme Court held that sexual harassment of woman at workplace will constitute breach of her right to life under Article 21, right to equality under Article 14 and Article 15, right to work in office, to which she was duly selected through a regular and open process. The sexual harassment is also defined as a crime, wherein the punishment is prescribed, and it is a civil wrong for which several civil remedies are provided under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The CIC/BS/C/2014/000265 Page 4 provisions of this Act also gave certain rights and right to information to the complainant-victim. She has a right to:
a) Completion of inquiry by internal complaints committee within 3 months, as per section 9
b) Procedure and norms prescribed under section 11 for conducting inquiry
c) Know transfer of the accused or transfer of complainant of sexual harassment for safety, and recommendations to that extent from the internal complaints committee, during pendency of inquiry under Section 12(1)
d) Get a copy of inquiry report as per Section 13(1), within 10 days of its completion.
14. The applicant/complainant in this case has a right to know the reasons if the above rights are not implemented. RTI Act under Section 4(1) (c) mandates the public authority to publish all relevant facts while formulating important policies or announcing the decisions which affect public. This is a general duty. S 4(1)(d) mandates to provide reasons for its administrative or quasi judicial decisions to affected person. Inquiry report is a quasi judicial decision and providing the copy of it to accused but not to the victim-applicant is breach of Section 4(1)(d). The public authority violated her RTI under Section 3 and 6 also, by not providing it either on their own or on request.
15. Department of Personnel and Training OM. No. 11013/2/2014 Estt (A.III) dated 27th November 2014 deals with alignment of Service Rules (CCS (Conduct) Rules, 1964) with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. Rule 3-C of CCS (Conduct) Rules, 1964 states that: (1) No Employee of the Secretariat shall indulge in any act of sexual harassment of any woman at her work place. (2) Every Employee of the Secretariat who is in charge of a work place shall take appropriate steps to prevent sexual harassment to any woman at such work place.
16. The Commission wanted to examine if the present request under RTI pertains to life and liberty of the complainant. It is pertinent to note that the complainant was seeking information about inquiry into her complaint of sexual CIC/BS/C/2014/000265 Page 5 harassment at workplace. When Chief Justice J.S. Verma was working on the required law to deal with complaints of Sexual Harassment at the Workplace (SHW), he drew support from the Convention on Elimination of Discrimination against Women (CEDAW) as explained in Visaka's case (Vishaka v. State of Rajasthan, AIR 1997 SC 3011: (1997) 6 SCC 241). Recognizing aspects of 'Gender Equality' into the 'Right of Life and Liberty' he stated:
"Each such incident results in violation of the fundamental rights of 'Gender Equality' and the 'Right of Life and Liberty' .... The fundamental right to carry on any occupation, trade or profession depends on the availability of a safe working environment. Right to life means life with dignity. The primary responsibility for ensuring such "safety" and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive..."
17. In Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625, the Supreme Court reiterated the Visakha ruling and observed that:
"There is no gainsaying that each incident of sexual harassment, at the place of work, results in violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India.... In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated...."
18. Through its analysis, the Court concluded that sexual harassment in the workplace is a violation of women's human rights and fundamental right under Constitution of India, specifically:
Article 21: Right to 'life and personal liberty' besides, Article 14:
Equality before the law, CIC/BS/C/2014/000265 Page 6 Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth and Article 19 (1)(g): Right to practice one's profession, or to carry on any occupation, trade or business.
19. Thus, Vishaka judgment acknowledged any sexual harassment at work place as a human rights violation which causes infringement of life and dignity of victim and enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 with an objective of providing protection to women against sexual harassment at workplace, this right was accorded a legal status. Thus, information sought in this case relating to complaint of sexual harassment at workplace can be treated as one concerning threat to her life and liberty as mentioned in section 7(1) of RTI Act, considering the fact that 'threat to dignity of women at workplace' is nothing less than a threat to her life and liberty in view of seriousness of mental or physical harassment she undergoes. The public authority should have provided the copy of inquiry report considering this as concerning life and liberty of the appellant within 10 days as per Section 13 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, if not in 48 hours, or at least in 30 days as prescribed under section 7(1) of RTI Act RTI Act. Information sought by the appellant/complainant of sexual harassment relating to inquiry report etc. has to be classified as information related to life and liberty, because both of these rights are threatened by sexual harassment.
20. Thus, the complainant was deprived of her right to information which was guaranteed to her under two acts i.e., Right to Information Act and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Everyone who has obstructed furnishing of information to the complainant-victim should be liable for action for violating both of these Acts, which formed foundation of the complaint. The Commission considers that the complaint is established and finds there is a strong need to initiate penal proceedings under section 20 of RTI Act.
21. The Commission accordingly directs Mr. S.K. Garg, CPIO besides Mr. S.R. Chauhan, the First Appellate Authority, and Mr. Mr. Akshay Kala, Joint Director, ESIC, H.Q, New Delhi and deemed PIOs, to show-cause why maximum penalty CIC/BS/C/2014/000265 Page 7 should not be imposed upon each of them for obstructing the information to the complainant, and Mr. S. K. Garg and S.R. Chauhan to explain why disciplinary action should not be recommended against each of them before 20th May 2017. The Commission also directs the public authority, to explain why it should not be directed to pay compensation to the complainant, before 20th May 2017.
22. The complainant stated that though copy of inquiry report has been provided to her after 60 days, other information sought was not given. She requested that this complaint shall be considered as complaint-cum-second appeal and direct disclosure of information also. Accepting this prayer, the Commission directs the public authority, to furnish certified copies of documents relied upon by the inquiry officer, along with questions list put up to witnesses and answers, and the file notings of the file on inquiry proceedings, movement of file for action and the file notings of the RTI application, besides the file notings of First Appeal process to complainant-appellant free of cost, before 5th May 2017. In the absence of response, the Commission will be compelled to infer that they have nothing to explain and proceed further.
23. The appellant submitted that she is not in receipt of the questionnaires put before the witnesses, the copy of file notings and action taken report. The Commission directs the respondent authority to provide the certified copies of the questionnaires, file notings and latest action report within 30 days from the date of receipt of this Order.
Proceedings on 24.8.2017
24. The Commission found that in response of the show-cause notices, both the officers did not provide any explanation and neither did they proved that the direction of CIC to give information was complied with. There was no compliance report. The Commission finds both the officers guilty under Section 20 of RTI Act, for denying/delaying the information, which should have been provided. Because of this unjust denial, the appellant faced systematic persecution. Shri S.K. Garg and Shri S.R. Chauhan are hereby directed to pay a sum of Rs. 25,000/- each in 5 equal monthly installments. The Appellate Authority is directed to recover the amount of Rs. 25,000/- from the salary payable to, Shri S.K. Garg and Shri S.R. Chauhan by way of Demand Draft drawn in favour of 'PAO CAT' New Delhi in 5 equal monthly installments. The first installment should reach the Commission by 15.09.2017 and the last installment should CIC/BS/C/2014/000265 Page 8 reach by 15.01.2018. The Demand Draft should be sent to Shri S.P. Beck, Joint Secretary & Addl. Registrar, Room No. 302, Central Information Commission, B- Wing, 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066.
Representation for rectification dated 14 and 15.9.2017
25. Mr SK Garg, CPIO and Shri SR Chauhan, deemed CPIO and FAA, who were penalized to pay Rs 25,000 each approached the Commission with written representation seeking rectification of certain defects in order caused by representations of their officers. During extensive oral submissions, Mr Garg said that improper representation from the public authority has resulted in imposition of penalty, though the information was furnished to the appellant. MR SK Garg said that the copy of inquiry report was given as an enclosure on 24th April 2014 itself and that was received by the complainant. The Commissioner pointed out that complainant alleged that copy of inquiry report was not enclosed as claimed, and because of that she could not file appeal against the inquiry. Mr S K Garg claimed that as an officer he ordered giving of inquiry report copy to complainant and there ended his responsibility. He asked how he could be penalized if clerks below him did not dispatch the letter along with a copy.
26. This argument cannot be accepted because the RTI Act imposed an obligation on designated CPIO to furnish information sought within 30 days from application date, and if information was not dispatched by anyone in public authority will attract penalty under Section 20 of RTI Act. The Commission apprised the CPIO that CPIO could escape penalty only by proving the fact of dispatch of information along with proof of enclosing copy of inquiry report within 30 days. Mr. Garg sent his representatives with a written authorization along with extract from dispatch registrar showing a bundle of papers were dispatched to complainant on 25.4.2014, suggesting that such bundle included copy of inquiry report otherwise it could not become a bundle. Another letter dated 5.5.2017 was produced by Assistant Director Mrs. Reena Hira showing compliance of directions of this CIC. This contained an endorsement by complainant Dr Kirti that on point 1 (inquiry report) and 2 (383 documents relied upon by inquiry officer) were received after 60 days after her first RTI dated 1.3.2014, and other information under point 3 (file notings inquiry) and 4 (file notings of first appeal) was given on 8.5.2017. Complainant said she was not given the list questions put to the witnesses during inquiry. SK Garg and other CIC/BS/C/2014/000265 Page 9 officers said that there was no such document having the list of questions, and that could have been part of the inquiry report. Giving benefit of doubt to the penalized CPIO, it could be assumed that bundle had the copy of inquiry report which was received.
27. Next question is whether it was received within time prescribed. The date of RTI application was 1.3.2014, the CPIO claimed that he got the request on 11.3.2014 and dispatched information on 24.4.2014. Extract of the dispatch register, submitted on 18.9.2017 shows that it was dispatched on 25.4.2014. Section 7 of the RTI Act, 2005 says that CPIO has to give information within 30 days from date of receipt of the RTI request. Believing the CPIO that he has received it on 11.3.2014, he should have dispatched the information on 11.4.2014. But it was done on 25.4.2014. There is a delay of 14 days. The Commission allows the representation to rectify defect partly to the extent of calculating the penalty of Rs 250 per day for 14 days, which comes to Rs 3500, and directs him to pay Rs 3500 within 15 days from date of receipt of this order. The Commission also records an admonition of the CPIO Mr SK Garg, for the delay, and other reasons referred above.
28. Mr. S R Chauhan, deemed CPIO and FAA who was penalized for obstructing the information, represented that he had no role to play in the case, as he found that the information sought was furnished as available and that it was not true to allege that he obstructed the information access. He pleaded that he could not submit his explanation to show cause notice in time because he did not receive notice at all, as he was retired from service. The complainant alleged that Mr. Chauhan did not perform his duty as First Appellate Authority, did not apply his mind to the facts of the case. He should have understood the fact of delay and denial of some part of information and directed the disclosure, which he did not. He explained to the Commission that he in good faith believed that information was dispatched within time. The First Appellate Authority has not performed his duty properly, and simply ratified the CPIOs response. Considering the fact that he could not submit the explanation in time because of his retirement and non-receipt of show cause notice, Commission alters the order of imposing penalty into an admonition for not performing the statutory CIC/BS/C/2014/000265 Page 10 obligation. Representations for rectification of mistake in submissions, delay in submitting explanation are thus partially allowed and penalty order is accordingly amended as above.
SD/-
(M. Sridhar Acharyulu) Central Information Commissioner Authenticated true copy (Dinesh Kumar) Deputy Registrar Copy of decision given to the parties free of cost.
Addresses of the parties:
1. The CPIO under RTI, ESIC, M/o Labour & Employment, Panchdeep Bhawan, CIG Marg, New Delhi-110002.
2. Mr. SK Chauhan, Medical Commissioner/FAA ESIC, M/o Labour & Employment, Panchdeep Bhawan, CIG Marg, New Delhi-110002.
3. Joint Director, ESIC, ESIC, M/o Labour & Employment, Panchdeep Bhawan, CIG Marg, New Delhi-110002.
4. Dr. Kirti N Borkar, CIC/BS/C/2014/000265 Page 11