Central Information Commission
R K Jain vs Central Board Of Excise And Customs - ... on 18 August, 2017
CENTRAL INFORMATION COMMISSION
2nd Floor, August Kranti Bhawan, Bhikaji Cama Place
New Delhi-110066, website:cic.gov.in
Complaint No.:-CIC/SB/C/2015/000122-BJ-Final
Complainant : Mr. R K Jain
Respondent : 1. Shri V.P. Pandey,
CPIO & Asstt. Registrar
Customs Excise and Service Tax Appellate
New Delhi
2. Shri S.K. Verma,
CPIO & Asstt. Registrar
Customs Excise and Service Tax Appellate
Kolkata
Date of Hearing : 19.06.2017,18.08.2017
Date of Decision : 19.06.2017,18.08.2017
Date of filing of RTI applications 01.10.2015
CPIO's response 29.10.2015 RTI Trf.
02.11.2015
Date of filing the First appeal Not on Record
First Appellate Authority's response Not on Record
Date of diarised receipt of complaint by the 13.11.2015 and
Commission 19.06.2017
ORDER
FACTS:
The Complainant vide his RTI application sought information on 03 points (A to C) regarding list of the cases marked 'part heard' at CESTAT, Delhi from 01.01.2014 till date with the name of the parties, date of marking 'part heard' and composition of the Bench with Appeal numbers and list of 'part heard' matters pending at CESTAT, Delhi as on 01.10.2015 with the name of the parties, date of marking 'part heard' and composition of the bench with appeal numbers and issues related thereto.
The AR/CPIO vide its letter dated 29.10.2015 transferred the RTI application to AR (Excise) to provide information expeditiously under Section 6(3) r/w 5(4) and 5(5) of the RTI Act, 2005. Thereafter, the AR/CPIO vide its letter dated 02.11.2015, enclosing 01 page, had denied disclosure of information under Section 8 (1) (h) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Complainant approached the FAA. The FAA vide its letter dated 26.08.2016 directed the CPIO to provide inspection of the relevant records within a period of three weeks from the date of receipt of its Page 1 of 8 order. In compliance with the said order, the CPIO vide its letter dated
02.09.2016 directed the AR (Excise) to forward the information to the RTI Section without any delay. Dissatisfied by the response from the Respondent, the Complainant approached the Commission.
The Commission(IC-SB) vide its interim decision dated 21.03.2017 had stated that due to some administrative reasons, the matter could not be taken up for hearing by IC-SB and with the revised allocation of work among the Registries w.e.f 10.01.2017, the work relating to CESTAT had been allotted to IC-BJ, therefore, the case was transferred to this Registry.
HEARING:
Facts emerging during the hearing on 19.06.2017:
The following were present:
Complainant: Mr. R. K. Jain;
Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar, CESTAT, New Delhi;
The Complainant reiterated the contents of his RTI application and stated that the information was provided to him only after a considerable delay of more than 02 years i.e. on 17.03.2017. It was further contested that the then CPIO, Mr. S. K. Verma vide its letter dated 29.10.2015 had allowed inspection of all the records on 04.11.2015 but before the Complainant could undertake any inspection, the said CPIO illegally and malafidely, without any authority of law reviewed its decision and cancelled its previous response dated 29.10.2015 by serving a letter dated 02.11.2015 wherein information was denied from disclosure under Section 8(1)(h) of the RTI Act, 2005 with a view to obstruct the flow of information without any reasonable cause. In its response, the Respondent submitted that that the FAA vide its order dated 26.08.2016 had directed the CPIO to provide inspection of relevant records within a period of three weeks from the date of receipt of its order. Thereafter, in compliance with the order of the FAA, a letter was forwarded to AR(Excise) dated 02.09.2016 to provide the information to the Complainant expeditiously. The inspection of relevant files/documents was provided to the Complainant on 06.01.2017 and copies of such records were provided on 17.03.2017. The Complainant strongly objected to the letter of the CPIO dated 02.09.2016 which was stated to be addressed to himself and it was further argued that there was unreasonable delay of around 170 days in the compliance of the FAA' order dated 26.08.2016. Therefore, the Complainant prayed for penal action against the then CPIO, Mr. S.K Verma under Section 20(1) of the RTI Act,2005 for illegally and malafidely reviewing his own order without any just and reasonable cause resulting in delay of information The Commission was in receipt of a written explanation of Mr. A. Mohan Kumar, Registrar, CESTAT, dated 27.05.2016 wherein it has been submitted that penal proceedings should be dropped against him. However, the Commission observed that no show cause notice was issued by the Commission vide interim orders dated 28.11.2016 or 21.03.2017.Page 2 of 8
The Commission was also in receipt of a reply by the Complainant dated 21.03.2017 against the written submissions of Mr. A. Mohan Kumar, Registrar, CESTAT. The Commission was also in receipt of a written submission of Mr. S.K. Verma, Assistant Registrar, CESTAT, Kolkata wherein a request was made to adjourn the matter to any date between 05.07.2017 to 10.07.2017 or any date between 13.07.2017 to 14.07.2017 through video Conferencing facility since he had not been served with any notice of hearing before the Commission and would like to have the records placed before him in order to contest the matter effectively during the hearing before the Commission.
The Complainant contested the replies and stated that there was palpable malafide in denying the information to him. It was argued that the aforesaid Respondents had been providing similar information in other cases. The grounds taken by each of the Respondents were incorrect and merely an excuse to cover up the weaknesses in the understanding of the RTI Act, 2005 and suppressing their alleged malpractices. The reason for shortage of staff, lack of resources and voluminous data was also not tenable and convincing. It was therefore, prayed that action under Section 20(1) of RTI Act, 2005 should be initiated alongwith the disciplinary proceedings against each of them. It was prayed that Shri S. K. Verma was liable for penal action for illegally and malafidely reviewing his own order without any justification and without providing opportunity to the Complainant resulting in a delay in release of information by more than 500 days. It was also desired that penalty be imposed on Shri V. P. Pandey, CPIO and Deemed CPIO and Assistant Registrar (Excise) for flouting the orders of the FAA dated 26.08.2016 and that disciplinary action be initiated against these officials.
INTERIM DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and following the principles of natural justice by providing a fair and reasonable hearing to all the parties against whom the Show Cause notice was issued, the Commission observed that proper service of notices to the concerned parties had not been issued properly. The Commission therefore instructs the Dy. Registrar to issue fresh notices of hearing to all the concerned parties in the matter and fix another hearing in the month of August, 2017 following laid down procedure.
The matter stands adjourned.
Note: Subsequent to instruction issued by the Commission, the Dy. Registrar vide its notice dated 31.07.2017, issued notice for hearing on 18.08.2017.
HEARING:
Facts emerging during the hearing on 18.08.2017:
The following were present:Page 3 of 8
Complainant: Mr. R. K. Jain;
Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar, CESTAT, New Delhi; Mr. S. K. Verma, Asst. Registrar, CESTAT, Kolkata in person;
The Complainant reiterated the contents of his written submission and stated that the Respondents had caused malafide obstruction of information. Explaining the details of the case, the Complainant submitted that Respondent no. 01 vide its letter dated 29.10.2015 had decided to provide him inspection of the relevant files but had without any reasonable cause reviewed his response and vide his letter dated 02.11.2015 denied information/inspection to him claiming the exemption of Section 8(1)((h) and stating that the relevant matter was sub-judice. The Complainant drew reference to the decision of the Hon'ble Delhi High Court in the case of Suhas Chakma vs. Union of India (WP(C) 5086/2010) decided on 18.11.2011 and the decision of the Commission in File no. CIC/AD/A/2009/000256 dated 15.04.2009 wherein it had been held that the Appellate Authorities under the RTI Act does not have the power to review its own decisions. Moreover, the Hon'ble Supreme Court in the matter of Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (Civil Appeal no 2468 of 1987, arising out of SLP(C) no. 6159 of 1987, decided on 25.09.1987) had held that a quasi judicial body could not review its own order unless power of review was specifically conferred by the statute.
Furthermore, the FAA vide its order dated 26.08.2016, in the present matter, had held that once the order is passed, the officer becomes functus officio and that he did not have the prerogative to change his own order. Therefore, strong objection was raised against the malafide review order of the Respondent no. 02 which was against the provisions of the RTI Act, 2005.
Moreover, with regard to the issue on the delay caused by the Respondents in providing inspection to him despite the order of the FAA in this regard, it was argued that despite his several reminders dated 07.09.2016 and 07.01.2017, no information was provided to him. However, the Respondent no.01 vide letter dated 02.09.2016 directed himself to provide information to the Complainant within a period of three weeks from the date of FAA order but no compliance was made of the said FAA order in the stipulated time period. He further informed that the information was provided only on 17.03.2017, with a considerable delay of 495 days. He also explained that though inspection was allowed to him on 06.01.2017, the copies of the requisite records were made available to him after a delay of 170 days i.e on 17.03.2017, in spite the fact that due flagging of the relevant records was already done by him at the time of inspection.
Thus, the Complainant prayed for penal action against the Respondents u/s 20 of the RTI Act, 2005 and initiation of disciplinary proceedings against them for causing malafide obstruction and delay of information and causing illegal review of its own response u/s 7 of the RTI Act, 2005.Page 4 of 8
The Respondent no. 02 informed the Commission that a matter had been challenged by him against the decision of the Commission in File no CIC/SB/C/2015/000049 dated 28.02.2017 before the Hon'ble Punjab & Haryana High Court in WP(C) no. 16241 of 2017 and that the issues involved in this matter were similar to the one challenged by him before the Hon'ble Court. In the aforesaid matter, S. K. Verma Vs. R. K. Jain and Ors., the Judge vide its order dated 10.08.2017 had issued a notice of motion for 14.09.2017 to Respondent 2 only. The Complainant expressed that he was unaware of any such order. The Respondent Shri Verma was directed to deliver a copy of the aforesaid order to the Complainant for his ready reference.
He further explained that no malafide or obstruction of information had been caused by him in the present matter. Elaborating the procedure undertaken in this matter, he explained that subsequent to the receipt of the RTI application filed by the Complainant, a transfer letter dated 29.10.2015 u/s 5(4) r/w Section 5(5) of the RTI Act, 2005 was issued by him wherein it was stated that the concerned sections of the Respondent Public Authority should respond to the availability of requisite information in the RTI application. Therefore, he was in receipt of a letter from the Custodian of information, Mr. Mukesh Gupta dated 02.11.2015 informing him that the relevant information could not be provided since the matter was sub-judice before CESTAT and therefore information was denied from disclosure u/s 8(1)(h) of the RTI Act,2005. Similarly, a letter u/s 7of the RTI Act, 2005, in response to the RTI application was written to the Complainant on 02.11.2015 reiterating the contents of the letter received by him from the concerned Section of CESTAT. Therefore, it was pleaded that there was no question of review of its own decision by him and that he merely acted on the facts submitted to him by the concerned section. The contentions raised by the Complainant therefore, were baseless and devoid of merit.
The Complainant further placed reliance on the decision of the Hon'ble High Court of Delhi in J.P. Agrawal vs. Union of India (UOI) and Ors, W.P. (C) 7232/2009 to argue that the CPIO cannot merely act as a Post Office and explained the jurisdiction of the Respondent Public Authority under Hon'ble High Court of Delhi and stated that the WP mentioned by the Respondent pending the Hon'ble High Court of Punjab & Haryana High Court does not hold good in the present matter. It was further informed that he was not in the knowledge of any such Writ Petition filed by the Respondent and that such submission of the Respondent should not be taken by the Commission.
Respondent no.01, while explaining on the issue raised by the Complainant for a unreasonable and malafide delay caused in providing information to him, submitted that he was neither the CPIO nor the deemed CPIO at the time when RTI application was filed by the Complainant. Moreover, it was explained that the FAA vide its order dated 26.08.2016 allowed for Page 5 of 8 inspection of relevant records to the Complainant and the same FAA order was forwarded to the AR(Excise) vide letter dated 02.09.2016 for its compliance. Thereafter, efforts were made by the Respondent Public Authority to communicate to the Complainant and make the relevant records available to him for inspection. In the meanwhile, due to creation of new benches of CESTAT, he was preoccupied for official work. Subsequently, the Complainant inspected the relevant records only on 06.01.2017, after a letter dated 09.12.2016 was written reminding him to inspect the records. It was further explained that a delay of around two months was caused in providing copies of the requisite records after the inspection by the Complainant dated 06.01.2017 due to shortage of staff and other regular Court work of CESTAT, New Delhi and numerous RTI applications filed by the Complainant from time to time. A reference was drawn on the decision of the Hon'ble Supreme Court in the matter of Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors. (Civil Appeal No. 6454 of 2011) to substantiate his contention.
Hearing both the parties and on perusal of the records, the Commission observed that the letter issued by the Respondent no.02 dated 29.10.2015 could not be held as an order of the CPIO u/s 7 of the RTI Act, 2005. It was noted that the said letter was a transfer letter issued u/s 5(4) r/w 5(5) of the RTI Act, 2005 and a copy of this letter was sent to the Complainant only for his kind knowledge. However, the letter dated 02.11.2015 issued by the Respondent no.02 was in fact, the response to the RTI application, which would hold good as an order passed by the CPIO u/s 7(1) of the RTI Act,2005. Therefore, the issue raised by the Complainant stating that the CPIO had malafidely reviewed his own decision could not be accepted. With regard to the issue regarding the delay caused by Respondent no.01 in providing information to the Complainant despite the order of the FAA to provide information within a period of three weeks, the Commission would like to place its reliance to the OM No. 1/18/2011-IR of DoP&T dated 16.09.2011 and the judgment pronounced by Hon'ble Supreme Court of India in case of CBSE and Anr. Vs. Aditya Bandopadhyay & Ors. Civil Appeal No. 6454/2011 wherein it was held as under :
"The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of public authorities prioritising 'information furnishing' at the cost of their normal and regular duties."
Furthermore, the Commission observed that though there was a delay caused in delivery of information but there was no malafide intention on the part of the Respondent no.01 to obstruct free flow of information. The Commission further noted that the Respondent no. 01 vide its letter dated 09.12.2016 had intimated the Complainant to avail the opportunity of Page 6 of 8 inspection and due facilitation was offered to the Complainant in providing inspection. The Commission felt satisfied by the reliance placed by the Respondent to the decision of the Hon'ble Supreme Court of India in CBSE & Anr. Vs. Aditya Bandopadhyay & Ors., SLP(C) NO. 7526/2009 wherein it was held as under:
".....The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritizing information furnishing, at the cost of their normal and regular duties."
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 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 10806 of 2011. [O&M] Date of Decision: 02nd December, 2011 (Gurcharan Singh vs. State Information Commission, Punjab & Ors.) wherein it was held as under:
"Having heard learned counsel for the parties, I find that the State Information Commission has no where held that the petitioner withheld any information deliberately or willfully. Nonfurnishing of satisfactory explanation would not ipso-facto mean that the petitioner withheld the information with a motive or mala-fidely. That being so, the harsh penalty imposed vide the impugned order dated 10.05.2011 [Annexure P-8] is uncalled for and the same is set aside but with a stern warning to the petitioner to be careful in future and ensure that as and when an application is received under the Act, he shall be obligated to act upon promptly and in any case within the stipulated period."
Similarly, 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 2 nd 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.
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 Page 7 of 8 Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely."
The Complainant could not satisfy the Commission or substantiate his claims further regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause.
FINAL DECISION:
Keeping in view the facts of the case and submission made by both the parties and in the light of afore-mentioned decisions of the Hon'ble Courts, no further intervention of the Commission is warranted in this matter.
The Complaint stands disposed accordingly.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Page 8 of 8