Central Information Commission
Rao Mohd. Nadeem vs Wapcos Limited on 10 September, 2020
Author: Neeraj Kumar Gupta
Bench: Neeraj Kumar Gupta
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग,मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
िशकायत सं या / Complaint Nos. CIC/WPCSL/C/2019/635436
CIC/WPCSL/C/2019/635435
CIC/WPCSL/C/2019/635431 &
CIC/WPCSL/C/2019/635424
Rao Mohd. Nadeem ...िशकायतकता/Complainant
VERSUS
बनाम
CPIO, WAPCOS Limited, Gurgaon, ... ितवादी/Respondent
Haryana.
Relevant dates emerging from the complaint:
RTI : 04-02-2019 FA : Not on record Complaint : 07-03-2019
CPIO : 22-02-2019 FAO : Not on record Hearing: 03-09-2020
ORDER
1. Since the matter involves determination of identical legal issues arising out of similar prayers made by the complainant under Section 18 of the RTI Act, 2005, all these complaints are being clubbed together and disposed of by a single common order.
CIC/WPCSL/C/2019/635436
2. The complainant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), WAPCOS Limited, Gurgaon, Haryana seeking following information:-
1. "Whether M/s WAPCOS Ltd. had bid for any Detailed Project Report for Highways (In Principle National Highways, National Highways, State Highways, Roads etc.), Construction Supervision, Authority Engineer, Independent Engineer in the State of Chhattisgarh during the Period 1st April 2015 to 31st Page 1 of 10 December 2018. Please provide the details of such bids.
2. While submitting the aforesaid bids, the list of Technical and Non-
Technical officials of WAPCOS Ltd. involved for bidding of the Projects, their Names, Designation and Experience, be provided.
3. Provide the copy E2/T3 along with Certificate of Employer regarding experience (APPENDIX II) of bid documents submitted for Projects as per Question no 1 in the State of Chhattisgarh.
4. Out of the bids made, as per Question No.1, how many projects were awarded to M/s WAPCOS Ltd. in the State of Chhattisgarh?
5. Name of the Department of WAPCOS Ltd. which bid for the aforesaid Projects.
6. Role, Duties and Responsibilities of Ms. Pooja Kapoor, Mr. Akhil Gaur and Mr. Jatin Mittal of Business Development and Road Department during Bidding and Execution of the aforesaid Projects.
7. Copies of letters including e-mails exchanged whereby the aforesaid contracts were awarded in favour of M/s WAPCOS Ltd. in State of Chhattisgarh.
8. Please confirm whether the bids as well as the contracts awarded to M/s WAPCOS Ltd. in the State of Chhattisgarh were in conformity to RFP of the Project, as issued from time to time. In case there is any deviation to RFP, the same may be specifically explained.
9. Please Confirm that Data Uploaded on the Infracon Portal was Correct at the time of locking the bid and Name of the Person responsible for approving and feeding the data on Infracon Portal along with Designation and date of locking bids.
10.Please provide the copies of LOIs, Contract Agreements and correspondence including e mails exchanged in relation to each project awarded to M/s WAPCOS Ltd with respect to Projects being executed in the State of Chhattisgarh.
11.Name of the Key Person along with designations who gave consent for the bids on infracon. How were key Persons arranged and arrangement with Key Persons? Provide the copy of Memorandum of Understanding / Agreement with Key Persons.
12.Whether Negotiation Meeting for the Project Awarded in Chhattisgarh was conducted. If Yes Date of Negotiation meeting along with Name of the Key Persons which attended the meetings and Key Persons who did not attended for each Project / bid.
13.Whether the negotiation meeting of the Projects as per Para 12 arranged by Arhaan and Associates Pvt. Ltd. if yes What Page 2 of 10 Arrangement was WAPCOS having with Arhaan and Associates Pvt. Ltd. Provide the Copy of Contract of same.
14.Name of Key Persons along with Positions at the time of Signing of Agreement of the Project with the employer in Chhattisgarh.
15.Status of each project with the stage of the project and Monthly Progress Report submitted to the Client in terms of the Contract Agreement being executed in the State of Chhattisgarh.
16.The copies of invoices submitted to the Client with respect to projects being executed by WAPCOS Ltd. as per question no 4 against the aforesaid Projects along with documents /Annexures/Certificates etc and details of receipts of amount against the same may be provided.
17.The amounts disbursed and paid to the key personnel individually and the tax deducted (TDS) for each of the aforesaid projects along with the copy of Contract Agreement with the Key Professionals , Scope of Work etc. be Provided.
18.Attendance Records of All Professionals deputed on aforesaid Projects.
19.Whether Any back to back Agreement for Completion of aforesaid Works undertaken by WAPCOS Ltd, with any third party, front etc., if yes, give details and Copy of back to back contract agreement .
20.Whether any amount out of the aforesaid receipts (Refer Point no
16) has been paid to third party If yes, under what provisions of the RFP / Contract Agreement and How much.
21.Whether any of the Services / Part of Services being executed for PWD NH DIV, Chhattisgarh has been outsourced through e tendering using e portal www.tcil-india-electronictender.com. If yes, Please Provide the Copy of RFP, No of bidders and Name of the agencies selected through e tendering for carrying out the Services.
22.Please Confirm Whether the aforesaid Services are being executed in conformity to RFP and CONTRACT AGREEMENT. If there are any deviation Please Provide the details thereof.
23.Please Provide the Copy of Letters through Which deliverables like Draft and Final inception , Alignment Option Study of the Project were Submitted to the Client for the aforesaid Project.
24.Whether any dispute regarding Services / Payments ever arose between M/s Arhaan and Associates Pvt. Ltd. and WAPCOS Ltd? Details regarding the same along with correspondence /communication /conversation /meetings (if any) be provided. Further, please also provide names of officials/employees of Page 3 of 10 WAPCOS Ltd. who were involved in such meetings, if any.
25.Whether any meeting was held on 05.11.2018 between Ms. Pooja Kapoor (HoD, Business Development and Road Department), Mr. Akhil Gaur (Additional Chief Engineer Business Development and Road Department) on behalf of M/s WAPCOS ltd. and official of M/s Arhaan and Associates Pvt. Ltd. for the purposes of dispute resolution with Arhaan and Associates Pvt. Ltd.? If yes, please provide the details of the said meeting.
26.Please identify the email addresses, phone numbers (mobile or otherwise) from which the officials of WAPCOS have communicated with officials of M/s Arhaan and Associates Pvt. Ltd."
CIC/WPCSL/C/2019/635435
3. The complainant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), WAPCOS Limited, Gurgaon, Haryana seeking following information:-
1. "Whether Any Notice inviting Expression of Interest (NIE, ENCLOSED AS ANNEXURE 1) for Empanelment of Consultant/Agency for Category I-
Consultancy Services for Carrying out Feasibility Study and Detailed Project Preparation for Re designing , Rehabilitation and Upgradation to 2 Lane/2 lane with Paved Shoulders or its Strengthening (ii) Category II Complete Topographic Survey using Lidar or equivalent Technology dated 16th Feb 2018 was invited online by Chief Systems, WAPCOS LTD. 3rd Floor Kailash Building, 26, Kasturba Gandhi Marg, New Delhi-110001, e-mail [email protected],;[email protected]. If yes, provide the details thereof.
2. How many Firms /entity applied in response to NIE referred above? Provide the name of Firm/entity which applied.
3. Provide the Copy of documents submitted by the Firms / Entity as per Para 2.
4. Details of Committee / Officers of WAPCOS Ltd. with designation responsible for calling NIE.
5. Name of entities / Firms Empanelled by WAPCOS LTD. against above referred NIE.
6. Details of Committee / Officers of WAPCOS Ltd. with designation responsible for evaluation of documents as per Para 1.
7. Provide all documents including Evaluation Matrix, Minutes of Meetings , File noting Supporting the Empanelment of firms / Entity in response to NIE referred in Para 1."
Page 4 of 10CIC/WPCSL/C/2019/6354331
4. The complainant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), WAPCOS Limited, Gurgaon, Haryana seeking following information:-
1. Whether Any bids were called by Chief Systems, Bid Inviting Officer WAPCOS Ltd. e mail id [email protected], from empanelled Consultants vide letter no WAPCOS/DPR/EOI/2018/1 (Copy Enclosed as Annexure 1) and WAPCOS / DPR/EOI/2018/2 or through any other letter to provide Services for Preparation of feasibility Study and Detailed Project Report for Road Projects during the Period from 1st Jan 2015 to 31st Dec 2018. If yes provide the details of such bids.
2. Also Provide the details of bids other than bids as per Para 1 called by WAPCOS Ltd. for Works executed/being executed by Business Development, Railway and Road Department formerly Business Development Department for the Period 1st Jan 2014 to 31st December 2018.
3. Out of Bids as Per Para no l and 2, whether any bids were invited through e tendering using e portal www.tci1-india-electronictender.com. If yes, please provide the details of such bids and Copy of RFP.
4. Out of Bids as Per Para no. 1 and 2, whether any bids were invited through any other means than e tendering using e portal www.tci1-india-
electronictender.com. If yes, please provide the details, Copy of RFP and Name of the Firm / Entity to whom bids were awarded.
5. Provide the Copy of bids received as per Para 1, 2, 3 and 4.
6. Provide the name of bidders and name of firm / entity which were awarded the work for each Packages / Projects for which bids were called as per para 1, 2, 3 and 4.
7. Provide the Copy of LOI, Contract Agreement for bids awarded as per Para 6.
8. Name of the officers along with designation sanctioning the calling of bids and also copy of File notings through which such approvals were given.
9. Whether the bids awarded above as per Para 6 were in Conformity with the Contract Agreement between WAPCOS LTD and Client." CIC/WPCSL/C/2019/635424
5. The complainant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), WAPCOS Limited, Gurgaon, Haryana seeking following information:-
1. Whether WAPCOS LTD has made any bids for any project through www.infracon.nic.in (Infracon, Ministry of Road Transport and Consultant Highways) during the period 1st Jan 2014 to 31st Dec 2018.Page 5 of 10
If yes, details of projects, name of client along with infracon id used for the project may please be provided.
2. On www.infracon.nic.in portal under the head Company Details, WAPCOS details are from S. No. 1374 to 1383. Are all these details of M/s WAPCOS LTD. The print out of consultants' details is annexed as Annexure A.
3. The reason and date of change of status to Blocked for details at S. No. 1374 to 1383. (Except S. No. 1377).
Etc."
6. The CPIO responded on 22-02-2019. Thereafter, the complainant filed these complaints u/Section 18 of the RTI Act before the Commission requesting to take appropriate legal action against the CPIO u/Section 20 of the RTI Act, 2005. Hearing:
7. The complainant, Mr. Rao Mohd. Nadeem attended the hearing through audio conferencing. Mr. Sumir Chawla, Dy. Chief Manager participated in the hearing representing the respondent through audio conferencing. The written submissions are taken on record.
8. At the outset, the complainant expressed his grievance regarding disposal of all his 18 RTI applications by a single reply of the CPIO wherein the respondent had denied the information on the premise of being commercial in nature. Further, he stated that he is seeking information about various commercial projects and tender bids which are of public interest and therefore, the sought for information should be provided to him. He pressed for imposition of penalty on the CPIO for providing an evasive reply.
9. The respondent contended that the complainant had filed multiple RTI applications touching upon the identical issues pertaining to execution of commercial projects and their participation in tender bids. Therefore, they had disposed of 18 RTI applications by a single reply without any malafide intention. Further, the respondent submitted that the complainant has sought their commercial details, disclosure of which would impede their competitive position and therefore, they had denied the information to the complainant. The respondent additionally submitted that the queries raised by the complainant are more in the nature of clarifications.
Decision:
10. This Commission is not adjudicating on furnishing the information to the complainant and therefore, the legal issue to be decided herein is whether there is any malafide of the then CPIO which attracts penal action u/Section 20 of the RTI Act, 2005. This Commission observes that each RTI application having different Page 6 of 10 set of queries should have been replied separately by the then CPIO but he has disposed of all 18 RTI applications through a single reply without quoting any specific exemption clause under which exemption was sought. This indicates that he is absolutely ignorant of the provisions of the RTI Act, 2005 and not taking his RTI work seriously. Therefore, the then CPIO is hereby issued a strict warning to be more meticulous in future and not to contravene the provisions of the RTI Act, 2005. However, it is not a fit case to impose penalty on the CPIO since no malafide is observed on his part in respect of withholding the information, as the queries raised by the complainant are in the form of seeking confirmation and explanation from the CPIO. With regard to the situations governing imposition of penalty on the CPIO under Section 20 of the RTI Act, 2005, this Commission refers to the decision dated 01-06-2012 of the Hon'ble Delhi High Court in W.P.(C) 11271/2009 titled as Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr., wherein, it was held as under:-
"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 show cause 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 fulfill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development Page 7 of 10 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."
11. Similarly, the following observations 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."
12. Furthermore, the Hon'ble Delhi High Court in the decision of Col. Rajendra Singh v. Central Information Commission and Anr., WP (C) 5469 of 2008 dated 20-03-2009 has 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."
13. This Commission further observes that the queries raised by the complainant are akin to seeking clarification from the CPIO and establishing a dialogue with the public authority regarding various commercial projects and tender bids concerning M/s WAPCOS Ltd. Therefore, this sort of queries are not covered within the definition of 'information' u/Section 2(f) of the RTI Act, 2005. In this regard, the Commission refers to the definition of 'information' u/s Section 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, Page 8 of 10 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."
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 is also made to the Hon'ble Supreme Court decision in CBSE and Anr. v. Aditya Bandopadhyay and Ors, 2011 (8) SCC 497,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."
Similarly, the High Court of Bombay in Dr. Celsa Pinto, Ex-Officio Joint Secretary (School Education) v. The Goa State Information Commission on 3 April, 2008 (2008 (110) Bom L R 1238) had held as under:-
"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."
The definition cannot include within its fold answers to the question why which would be the same thing as asking the Page 9 of 10 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."
14. In light of the factual matrix of the case and the legal principles enunciated in the aforementioned case-laws, this Commission comes to the conclusion that the complainant has not been able to substantiate his contentions regarding malafide denial of information by the respondent or for withholding it without any reasonable cause. In view of this, no action under Section 20 of the RTI Act, 2005 is warranted in this case.
15. With the above observations, these complaints are disposed of.
16. Copy of the decision be provided free of cost to the parties.
नीरज कु मार गु ा)
Neeraj Kumar Gupta (नीरज ा
सूचना आयु )
Information Commissioner (सू
दनांक / Date:03-09-2020
Authenticated true copy
(अिभ मािणत स यािपत ित)
S. C. Sharma (एस. सी. शमा),
Dy. Registrar (उप-पंजीयक),
(011-26105682)
Addresses of the parties:
1. The CPIO
WAPCOS Limited, Dy. Chief Manager &
Nodal CPIO, RTI Cell, 76-C, Institutional
Area Sector 18, Gurgaon, Haryana-122015.
2. Rao Mohd. Nadeem
Page 10 of 10