Central Information Commission
Yash Soni vs Institute Of Chartered Accoutant Of ... on 7 February, 2023
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: CIC/ICAOI/C/2022/600068
In the matter of
Yash Soni
... Complainant
VS
CPIO
The Institute of Chartered Accountants of India,
ICAI Bhawan, Indraprastha Marg,
New Delhi 110002
... Respondent
RTI application filed on : 21/09/2021 CPIO replied on : 06/10/2021 First appeal filed on : 10/10/2021 First Appellate Authority order : 09/12/2021 Complaint filed on : 02/01/2022 Date of Hearing : 07/02/2023 Date of Decision : 07/02/2023 The following were present: Complainant: Present over VC
Respondent: Mahesh Kumar, Deputy Secretary and CPIO (Intermediate Examinaton Branch), present over VC Information Sought:
The Complainant has sought the following information related to CA Intermediate Examination (New Syllabus), held in July, 2021:
1. Provide copies of the answer books in respect of the following subjects:
- P1 Accounting, P2 Corporate and Other Laws, P3: Cost and Management Accounting, P4 Taxation.
2. Provide copies of the question booklet and suggested answers in respect of subjects of P2 and P4.
1Grounds for Complaint The CPIO did not provide the desired information.
Submissions made by Complainant and Respondent during Hearing:
The complainant vide his written submissions dated 01.02.2023 submitted that the RTI Application filed by him was returned stating that the same was meant for the public authorities under the State Governments. He contended that the Institute of Chartered Accountants India herein referred to as ICAI is a body constituted by the Act of parliament which comes under the administrative control of the Ministry of Corporate Affairs (MCA), Government of India. The MCA comes under the Central Government, which in turn makes the ICAI to be a body governed by the Central Government and PIO to be Central Public Information Officer. Hence under these circumstances he was correct in filing the RTI via the RTI portal and in such circumstances the reply provided to the appellant can be considered as frivolous and bad in law. The CPIO acted in a completely negligent manner and such dereliction of duty should under no circumstances be condoned. Such manifest error, if condoned, shall stand against the very roots of the public confidence reposed upon the CIC. The conduct of the CPIO can be considered as deemed mala-fide denial of information.
He further submitted that the FAA disposed off the appeal on 09.12.2021 directing the CPIO to forward the requested information within 15 days of the order. He further submitted that the FAA took almost 60 days to dispose off the appeal i.e., it delayed the decision by taking almost 15 days in excess of the statutory limit of maximum 45 days. Even the maximum period of 45 days should be taken as a liberty for undue delay in response. The statute imposes a responsibility upon the FAA to dispose off the appeal as soon as possible. But in the instant case the FAA took liberty to take 60 days to arrive at a decision. He further relied on the judgement in the case of Sri. Sijo Sebastain v. Karnataka Information Commission & Ors. [W.P. No. 4913 of 2022 (GM-RES)]; wherein the Hon'ble High Court of Karnataka, Bengaluru Bench had imposed exemplary penalty upon the PIO for unreasonable delay in providing the information sought. The Hon'ble High Court while being inclined to grant indulgence in the matter took into observation:2
""Justice Louis Brandels (1856-1941) of U.S. Supreme Court famously noted, 'Sunlight is said to be the best of disinfectants'. This statement illuminates the justification in enacting 'transparency and information laws'. Access to information is also a key tool in combating corruption and wrongdoing. Investigative journalists and watchdog civil society organization can use the right to access to information to expose wrongdoing and help root it out. These laws reflect the fundamental premise that Government and public officials are supposed to serve the people. There are, however, a number of more practical ideas underlying the widespread recognition of the right to information".
He further relied on the judgement of the Central Information Commission in Decision No. CIC/SG/A/2011/001436/13689 in Appeal No. CIC/SG/A/2011/001436 passed by a former Information Commissioner Shri. Shailesh Gandhi on 19.08.2011 imposing penalty u/s 20 of the RTI Act, 2005 upon the errant PIO for not providing any reasonable ground for causing delay in providing the requested information.
That the complainant also stated that an official of the Institute of Chartered Accountants of India, Examination Department had approached the appellant twice via phone call, once on 24.01.2023 and again on 30.01.2023 regarding the complaint filed by the applicant in the Commission. That on 30.01.2023 over the phone call, the official had admitted that the RTI application was never forwarded by the Nodal Officer to the concerned department for proper action upon the RTI application. This further substantiates the fact that the CPIO had acted in a negligent and improper manner.
He further submitted that even after the FAA's order on 09.12.2021 directing the CPIO to forward the requested information to the applicant within a period of 15 days from the date of order of the FAA, the CPIO till date has not taken any action . In view of the same, he requested for the following reliefs:
i) To impose maximum penalty of ₹25,000 upon the CPIO, ICAI for the unreasonable delay caused in providing the requested information. The delay being more than 467 days [being the period from 22.10.2021 to 31.01.2023 (date of filing present written submissions), both days being inclusive].
ii) To impose penalty of ₹3,750 (₹250 x 15days) upon the FAA, ICAI for causing unreasonable delay in disposing off the appeal beyond 3 the maximum permissible statutory limit of 45days. The delay being 15 days from 25.11.2021 to 09.12.2021, both days being inclusive.
iii) To award appropriate compensation to the applicant for the mental agony caused for the improper conduct of the CPIO, ICAI.
The CPIO vide written submissions dated 06.02.2023 submitted that the appellant is a candidate of CA Intermediate-July, 2021 exam, he had filed a RTI application on 21.09.2021 and had asked for the certified copies of paper no. 1,2,3 and 4. He further submitted that the RTI application was returned inadvertently on 06.10.2021 and not forwarded by the Nodal Officer to the concerned CPIO i.e him. Therefore, he was unable to provide the desired information.
He further submitted that the appellant filed a first appeal but they are unable to trace the order of the FAA on the RTI portal due to some technical issue. He submitted the copy of the screenshot to buttress his statement. He also submitted that on receipt of the notice of hearing, they provided the required information on 31.01.2023 through e-mail. He further apologised for the delay caused which was unintentional.
Observations:
At the outset, the Commission observed that the applicant filed the petition under both Secs 18 and 19 and had sought relief thereunder which is not permissible. Be that as it may, in the content of the petition he had mentioned that he wants to file a complaint against the CPIO and the FAA. However, he sought relief stating that the CPIO should be directed to send the information as expeditiously as possible. He further requested to initiate a proper inquiry against the present CPIO and the FAA under Sec. 18 and impose appropriate penalties upon the CPIO and FAA as per the provisions of Sec. 20(1). He also requested to direct the CPIO to provide adequate compensation for the undue hardship faced by the applicant due to the inappropriate delay caused by the CPIO for providing the required information. However, it was noted that the present case was registered as a complaint by the Central Registry. As far as converting this complaint to a second appeal is concerned, this matter has been examined by the Courts and it has been held by the Hon'ble Supreme 4 Court in CIC & Anr vs State of Manipur and Anr Civil Appeal No 10787-10788 of 2011 decided on 12.12.2011:
35..............Therefore, the procedure contemplated under Section 18 and Section 19 of the said Act is substantially different. The nature of the power under Section 18 is supervisory in character whereas the procedure under Section 19 is an appellate procedure and a person who is aggrieved by refusal in receiving the information which he has sought for can only seek redress in the manner provided in the statute, namely, by following the procedure under Section 19. This Court is, therefore, of the opinion that Section 7 read with Section 19 provides a complete statutory mechanism to a person who is aggrieved by refusal to receive information. Such person has to get the information by following the aforesaid statutory provisions. The contention of the appellant that information can be accessed through Section 18 is contrary to the express provision of Section 19 of the Act. It is well known when a procedure is laid down statutorily and there is no challenge to the said statutory procedure the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory provision. ....................
37. We are of the view that Sections 18 and 19 of the Act serve two different purposes and lay down two different procedures and they provide two different remedies. One cannot be a substitute for the other.
38. It may be that sometime in statute words are used by way of abundant caution. The same is not the position here. Here a completely different procedure has been enacted under Section 19. If the interpretation advanced by the learned counsel for the respondent is accepted in that case Section 19 will become unworkable and especially Section 19(8) will be rendered a surplusage. Such an interpretation is totally opposed to the fundamental canons of construction. ................
42. Apart from that the procedure under Section 19 of the Act, when compared to Section 18, has several safeguards for protecting the interest of the person who has been refused the information he has sought. Section 19(5), in this connection, may be referred to. Section 19(5) puts the onus to justify the denial of request on the information officer. Therefore, it is for the officer to justify the denial. There is no such safeguard in Section 18. Apart from that the procedure under Section 19 is a time bound one but no limit is prescribed under Section 18. So out of the two procedures, between Section 18 and Section 19, the one under Section 19 is more beneficial to a person who has been denied access to information.5
43. There is another aspect also. The procedure under Section 19 is an appellate procedure. A right of appeal is always a creature of statute. A right of appeal is a right of entering a superior forum for invoking its aid and interposition to correct errors of the inferior forum. It is a very valuable right. Therefore, when the statute confers such a right of appeal that must be exercised by a person who is aggrieved by reason of refusal to be furnished with the information."
Nonetheless, it is a settled position that ignorance of law is no excuse. Furthermore, in the judgement of CIC & Anr vs State of Manipur and Anr, the Apex Court while elaborating on the distinction between the procedure under Section 18 vs Section 19, also ruled that it is one of the well known canons of interpretation that no statute should be interpreted in such a manner as to render a part of it redundant or surplus. Misusing the Section 18 mechanism to file complaints with a request to subsequently convert the same into Second Appeals will indeed render the Section 19 mechanism redundant.
Having said so, it is also relevant to mention here that the Central Registry should have returned this petition for removal of defects, as composite relief is not allowed.
Further, the ratio laid down by the Hon'ble Delhi High Court in the matter of Dr. Deepak Juneja vs Central Information Commission, W.P.(C) 11489/2016, CM No. 2470/2018, dated 29 April, 2019 had examined the impossibility of composite relief. The relevant portion of the said judgment is as under:
"13. From the perusal of the prayers made in the complaints by the petitioner it is clear that the petitioner had sought imposition of penalty under Section 20(1) of the RTI Act; recommendation of disciplinary action against the CPIO under Section 20 (2) of the RTI Act; recommendation of disciplinary action against First Appellate Authority / Director; for providing compensation by the DDA under Section 19(8)(b) and for providing training under Section 19(8)(a)(v) of the RTI Act.
14. In other words, it is noted that the petitioner apart from seeking action under Section 20(1) and (2) of the RTI Act has also prayed for grant of compensation in his favour under Section 19(8)(b) and providing training to officials under Section 19(8)(a)(v). On perusal of Section 20 of the RTI Act, it is clear that the penalty under Section 20 can be sought in a complaint as well as in an appeal. But when a prayer for action under Section 19(8)(b) or 19(8)(a)(v) is made it can be sought only in an appeal, as the said provisions are part of section 19 which relates to appeal. The Supreme Court has in its judgment in the case of Chief Information Commissioner and Ors. v. State of 6 Manipur and Ors., MANU/SC/1484/2011 culled out the difference between Sections 18 and 19 of the Act. It was concerned with facts where appellant No.2 filed an application dated February 09, 2007 under Section 6 of the Right to Information Act for obtaining information from the State Information Officer relating to magisterial enquiries initiated by the Government of Manipur from 1980-2006. As the application under Section 6 received no response, appellant No. 2 filed a complaint under Section 18 of the Act before the State Chief Information Commissioner, who by an order dated May 30, 2007 directed respondent No. 2 to furnish the information within 15 days. The said direction was challenged by the State by filing a writ petition. The second complaint dated May 19, 2007 was filed by the appellant No. 2 for obtaining similar information for the period between 1980 - March 2007. As no response was received this time also, appellant No. 2 again filed a complaint under Section 18 and the same was disposed of by an order dated August 14, 2007 directing disclosure of the information sought for within 15 days. That order was also challenged by way of a writ petition by the respondent State of Manipur. Both the writ petitions were heard together and were dismissed by a common order dated November 16, 2007 by learned Single Judge of the High Court by inter alia upholding the order of the Commissioner. The writ appeal was disposed of by the order dated July 29, 2010 wherein the Division Bench has held that under Section 18 of the Act the Commissioner has no power to direct the respondent to furnish the information and further held that such a power has already been conferred under Section 19(8) of the Act on the basis of an exercise under Section 19 only. The Division Bench further held that the direction to furnish information is without jurisdiction and directed the Commissioner to dispose of the complaints in accordance with law. The Supreme Court in an appeal by the Chief Information Commissioner, by referring to Sections 18 and 19 of the Act has in paras 37, 41, 42 and 44 held as under:
"37. We are of the view that Sections 18 and 19 of the Act serve two different purposes and lay down two different procedures and they provide two different remedies. One cannot be a substitute for the other.
41. It is well-known that the legislature does not waste words or say anything in vain or for no purpose. Thus a construction which leads to redundancy of a portion of the statute cannot be accepted in the absence of compelling reasons. In the instant case there is no compelling reason to accept the construction put forward by the respondents.
42. Apart from that the procedure under Section 19 of the Act, when compared to Section 18, has several safeguards for 7 protecting the interest of the person who has been refused the information he has sought. Section 19(5), in this connection, may be referred to. Section 19(5) puts the onus to justify the denial of request on the information officer. Therefore, it is for the officer to justify the denial. There is no such safeguard in Section 18. Apart from that the procedure under Section 19 is a time bound one but no limit is prescribed under Section 18. So out of the two procedures, between Section 18 and Section 19, the one under Section 19 is more beneficial to a person who has been denied access to information.
44. This Court, therefore, directs the appellants to file appeals under Section 19 of the Act in respect of two requests by them for obtaining information vide applications dated 9.2.2007 and
19.5.2007 within a period of four weeks from today. If such an appeal is filed following the statutory procedure by the appellants, the same should be considered on merits by the appellate authority without insisting on the period of limitation."
15. Having noted the position of law as laid down by the Supreme Court, it is clear that Sections 18 and 19 serve two different purposes; lays down two different procedures; and provide two different remedies.
16. So, in the case in hand, it must be held the prayer of the petitioner relatable to grant of compensation (19 (8)(b)) / providing training (19 (8)(a)(v)) to the officials of the DDA, could have been prayed for only in an appeal under Section 19 of the RTI Act.
17. Insofar as the prayer for penalties under Section 20(1) and 20 (2) of the Act are concerned, the same could have been claimed in a complaint under Section 18 provided the case is made out on the grounds stipulated.
18. The aforesaid being the legal position, the petitioner could not have sought a prayer for compensation / for providing training stipulated in Section 19 by making a complaint under Section 18 read with Section 20 of the Act. To that extent surely the CIC was justified in holding that the petitions are composite. The CIC having dismissed the composite petitions being without merit, suffice it to state the petitioner is required to file an appeal under Section 19 with a prayer for grant of compensation under Section 19 (8)(b) and for a direction to provide training to the officials of the DDA under Section 19(8)(a)(v). So, it is for the petitioner to file a complaint under Section 18 and appeal under Section 19 incorporating the prayers as referred to above separately and distinctly.
8If such a complaint and appeal are filed, the same shall be considered by the CIC in accordance with law. This position has also been held by the Coordinate Bench of this court in the case of Kripa Shanker v. LD Central Information Commission and Ors. W.P(C) 8315/2017, Para 12 whereof reads as under:
"12. An information seeker can also file a complaint under Section 18 of the Act, in respect of matters set out in clauses (a) to (f) of section 18 (1) of the Act, which includes a case where access to any information has been refused. In terms of Section 18(2) of the Act, if the CIC is satisfied that there is a reasonable ground to enquire into the matter, the CIC may initiate an inquiry with respect thereof. There is no provision in Section 18 of the Act, which enables the CIC to direct disclosure of information. However, the CIC has the power to commence proceedings for imposition of penalty in case of proceedings under Section 19(3) of the Act as is apparent from the plain language of Section 20(1) of the Act."
Based on a perusal of the record, it was noted that the CPIO on 06.10.2021 replied to the complainant and stated that as mentioned in the guidelines for use of this portal, this facility is not available for filing RTI applications for the public authorities under the State Governments, including Government of NCT Delhi. Since the RTI application is meant for a public authority under the State Government, the same was returned with the direction to file the same before the concerned public authority under the State Government. The same was a grossly improper reply and the same shows callousness in disposing of the RTI application.
The complainant was not satisfied with the reply and filed a first appeal. The FAA vide order dated 09.12.2021 disposed of the first appeal and directed the CPIO to consider the RTI application in the light of the details provided after establishing the identity of examinee and respond to the appellant within 15 days from the date of this order. The FAA's order 09.12.2021 was issued online and it is unlikely that there was no designation of the CPIO mentioned to whom order was issued and now, the present CPIO during the hearing claimed that the FAA's order was not traceable. It appears that there is certain technical glitches in the portal , which is why the FAA's order was not complied with. However, the issue of non-implementation of the FAA's order is a matter of concern.
The Commission took serious note of the reply provided by the CPIO which is an error apparent on the face of the record. Be that as it may, the concerned CPIO, Intermediate Examination Branch appears to have taken corrective 9 action and the required information was provided on 31.01.2023 through e- mail. However, it is pertinent to mention here that there are certain technical anomalies as discussed above in the petition of the applicant as well his written submissions due to which no further relief can be granted. In his petition dated 02.01.2022 he sought composite relief i.e information disclosure as per Sec 19 and compensation as well. Further, he sought proper inquiry against the present CPIO and the FAA under Sec. 18 and to impose appropriate penalties upon the CPIO and FAA as per the provisions of Sec. 20(1). In view of the fact that the relief sought u/s 18 and 19 of the RTI Act is not admissible, the Commission is not inclined to issue any show-cause notices on the CPIO.
Decision:
Be that as it may, a strict instruction is issued to the Nodal CPIO to ensure that online replies are given with the name and designation of the CPIO who had provided the reply and no such wrongful denial occurs in future. In future any such delay in information can attract penal action u/s 20 of the RTI Act. The FAA is directed to evolve a mechanism, through which the implementation of his own order is being monitored in a routine manner, to avoid such continuous denial of information. Furthermore, the name and designation of the CPIO to whom the direction is issued should be mentioned, to ensure accountability.
The complaint is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना)
Information Commissioner (सच
ू ना आयु त)
Authenticated true copy
(अ भ मा णत स या पत त)
A.K. Assija (ऐ.के. असीजा)
Dy. Registrar (उप-पंजीयक)
011- 26182594 /
दनांक / Date
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Copy to:
The First Appellate Authority
The Institute of Chartered Accountants of India,
ICAI Bhawan, Indraprastha Marg,
New Delhi 110002
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