Central Information Commission
R K Jain vs Central Board Of Excise And Customs - ... on 25 July, 2017
CENTRAL INFORMATION COMMISSION
2nd Floor, August Kranti Bhawan
Bhikaji Cama Place, New Delhi-110066
Website: cic.gov.in
Appeal No.:-CIC/SB/A/2016/000704-BJ-Final
Appellant : Mr. R K Jain
1512-B, Bhisham Pitamah Marg
Wazir Nagar, New Delhi-110003
M: 9810077977
Respondent : I. CPIO
Account Officer, Customs Excise & Service
Tax, Appellate Tribunal, West Block No. 2
R K Puram, New Delhi-110066
II. CPIO
Assistant Registrar, Customs Excise &
Service , Tax, Appellate Tribunal, West Block
No. 2, R K Puram, New Delhi-110066
III. Mr. Rajendra Prasad (Account Officer),
CESTAT, West Block No. 2,
R. K. Puram,
New Delhi-110066)
IV. Mr. Kripa Shanker,
Assistant Registrar, CESTAT,
1st Floor, HMWSSB Building,
Rear Portion,
Khairatabad, Hyderabad - 500004)
Date of Hearing : 22.02.2017, 06.06.2017
Date of Decision : 23.02.2017, 19.07.2017
Date of filing of RTI applications 15.05.2014
CPIO's response 20.05.2014 & 17.07.2014
Date of filing the First appeal 28.06.2014
First Appellate Authority's response 22.08.2014
Date of diarised receipt of second appeal by the 13.04.2016
Commission
ORDER
FACTS:
The appellant vide his RTI application sought information regarding the copies of all order sheets/record of proceedings/ notice of hearing issued to the parties, vakalatnama and related issues with regard to the following appeals as under:
(i) ST/55892/2013(ACL Mobiles) Page 1 of 9
(ii) ST/594/2014 (Nortel Network India Pvt. Ltd.)
(iii) ST/5889/2013 (SBI Cards and payment services Pvt. Ltd) The CPIO, CESTAT vide its letter dated 20.05.2014 transferred the RTI application to AR Customs/ST CESTAT, New Delhi under Section 6(3) of the RTI Act, 2005. The appellant reminded the Assistant Registrar (Customs/ST) on 21.07.2014 to provide information as deemed PIO under Section 7(1) of the RTI Act, 2005 within 30 days. Dissatisfied by non-receipt of any information, the appellant approached the FAA. The FAA vide its order dated 22.08.2014 directed the CPIO to furnish the required information within two weeks from the date of the order.
The appellant filed a complaint under Section 18 of the RTI Act, 2005 but it was registered as an appeal with the Commission.
HEARING:
Facts emerging during the hearing on 22.02.2017:
The following were present:
Appellant: Mr. R. K. Jain (M. 9810077977);
Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar (M: 9811559708);
The appellant reiterated the contents of his RTI application and submitted that the orders of FAA had not been complied with. It was argued that the RTI application which was filed on 15.05.2014 was transferred to the concerned CPIO on 17.07.2014. Subsequently, the appellant had sent a reminder vide his letter dated 21.07.2014 to the CPIO informing him of his duties as deemed CPIO to provide information under Section 7(1) of the RTI Act, 2005 within 30 days. The CPIO had not responded in the matter at all. On perusal of the records, it is seen that the CPIO had marked the order passed by FAA vide his letter dated 28.08.2014 to the Assistant Registrar, Customs/Service Tax for necessary action. In the meanwhile, the Assistant Registrar, Customs/Service Tax vide his letter dated 27.08.2014 provided point-wise information to the appellant, primarily questioning the incorrect details of the appeal numbers given by the appellant in his RTI application. This was subsequently rectified by the appellant on 05.09.2014 but no reply was furnished by the CPIO.
The appellant demanded initiation of penal proceedings against the Deemed CPIO Mr. Kripa Shanker, AR, CESTAT, 1st Floor, HMWSSB Building, Rear Portion, Khairatabad, Hyderabad - 500004, for his failure to provide the information and comply with the orders of the FAA.
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.Page 2 of 9
DECISION Keeping in view the facts of the case and the submissions made by both the parties, it is evident that no reply had been provided by the respondent in the matter, which is a grave violation of the provisions of the RTI Act, 2005. The Commission, instructs the CPIO (Mr. Rajendra Prasad (Account Officer), CESTAT, West Block No. 2, R. K. Puram, New Delhi-110066) and Deemed CPIO (Mr. Kripa Shanker, AR, CESTAT, 1st Floor, HMWSSB Building, Rear Portion, Khairatabad, Hyderabad - 500004) to showcause why action should not be taken under the provisions of the Act for this misconduct and negligence. The Commission therefore, directs the respondents to: 1- provide the information to the appellant within a period of 10 days; 2- explain why penal action should not be taken as per Section 20(1) of the RTI Act, 2005, within 15 days;
from the date of receipt of this order.
Keeping in view the facts of the case and the submissions made by the respondent, the Commission instructs the respondent 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.
Note: Subsequent to receipt of a reply dated 08.03.2017 from Mr. Rajendra Prasad, Accounts officer/Ex-CPIO against the show cause notice, the Dy. Registrar vide its letter fixed 06.06.2017 as the next date of hearing in the matter.
Facts emerging during the hearing on 06.06.2017: The following were present:
Appellant: Mr. R. K. Jain (M. 9810077977);
Respondent: Mr. Rajendra Prasad (Account Officer), CESTAT, West Block No. 2, R. K. Puram, New Delhi-110066 (M: 8130552872) in person and Mr. Kripa Shanker, AR, CESTAT, 1st Floor, HMWSSB Building, Rear Portion, Khairatabad, Hyderabad - 500004 (M: 9868525279) through VC;
The Respondent no. 2 (Mr. Kripa Shankar) vide his response dated 22.03.2017 to the Show cause notice issued by the Commission, had submitted that the Head Clerk was responsible for the delay caused in entertaining the queries of the RTI application filed by the Appellant as the dealing Clerk negligently caused the matter to be suppressed and did not present the instant RTI application to him for disposal. It was also informed that necessary action had been initiated against the said Head Clerk. It was further explained that he had joined the CESTAT, Hyderabad on 14.12.2015, before the notice of hearing by the Commission was fixed on 22.02.2017 and thereupon had duly filed his Written Submission on 16.02.2017 for kind perusal of the Commission. The Respondent asserted that during his tenure as a CPIO, he had suitably discharged his duties as Page 3 of 9 per the provisions of the RTI Act, 2005 and no complaint had been made against him in this capacity. The Respondent further clarified that during his tenure as a CPIO, several visits were made by the Appellant to the O/o CESTAT, New Delhi, but not once the Appellant had made any reminder or raised any issue regarding non disposal of his RTI application filed in the O/o CESTAT, New Delhi. It was argued that the complaint against his inaction was made by the Appellant before the Commission only after his transfer to CESTAT, Hyderabad and therefore it clearly showed the afterthought of the Appellant. Moreover, it was submitted that after his transfer on 24.11.2015, he had ceased to be the Deemed CPIO of CESTAT, New Delhi and could not be made answerable for non furnishing of information to the Appellant, consequent to the orders of the Commission.
The Respondent informed that he had also written a letter to the Registrar, CESTAT dated 08.03.2017, complaining against the mischievous activities of the Head Clerk, Mr. Gajendra Singh who erroneously did not put up the instant RTI application before him for its timely disposal despite several verbal direction to the Head Clerk, CESTAT, New Delhi to attend to the RTI application on priority basis. Moreover, on the issue regarding the non supply of information to the Appellant, despite the order of the Commission dated 23.02.2017, it was submitted that a letter dated 02.03.2017 was written to Mr. Mohinder Singh, Dy. Registrar, CESTAT, New Delhi to provide information to the Appellant and that Mr. Mohinder Singh would be the best person to respond to the issue regarding non supply of information, till date. With regard to issue of providing information on the order of the FAA, it was submitted that the Appeal numbers mentioned in the RTI application of the Appellant were wrong and therefore no information could be provided. Thereafter, a letter dated 05.09.2014 was written to the Appellant requesting him to provide the correct Appeal number and also provided an opportunity for inspection of relevant files. But the Appellant had not availed of the opportunity of inspection. Moreover, since the order of the FAA dated 22.08.2014 had not modified the error in the Appeal numbers mentioned in its order therefore no information could be provided to the Appellant.
The Appellant reiterated the submissions made by him in the previous hearing before the Commission and informed that no information had been provided to him, till date. It was further stated that the then CPIO, Mr. Rajendra Prasad had duly transferred the RTI application to the Deemed CPIO under Section 6(3) r/w Section 5(4) of the RTI Act,2005 but no information was provided to him. It was submitted that as per the version of Shri Rajendra Prasad, Shri S. K. Verma and Shri V. P. Pandey were also liable for penal action for failure to comply with the order.
Subsequently, a First Appeal was filed by him where by the FAA vide its order dated 22.08.2014 had directed the CPIO to provide the information within a period of two weeks but no compliance had also been made to the order of the FAA. The Appellant made a strong objection to the afore said submission made by the Respondent and stated that subsequent to the order of the FAA, several reminders were sent by the CPIO and him to the Deemed CPIO/Respondent for providing information, but no response was provided to such reminders. Moreover, it was argued that the instant RTI application pertained to the time period much before the transfer of the Respondent to CESTAT, Hyderabad and therefore he was solely responsible Page 4 of 9 for causing deliberate and malafide obstruction to information for 1030 days. It was also argued that the Appellant's letter dated 05.09.2014 had not been received by the Former CPIO, CESTAT, New Delhi was not acceptable as it was hand delivered at the Dak Counter of CESTAT on 05.09.2014. Moreover, the Appellant had filed the present Complaint on 11.04.2016 where Shri Kripa Shankar was the First Respondent and Shri Rajendra Prasad was the Second Respondent. All the three CPIOs and the Deemed CPIO i.e. Shri Kripa Shankar, Shri Rajendra Prasad and Shri V. P. Pandey were aware of the letter dated 05.09.2014 and the FAA's order dated 22.08.2014. Therefore, all the three CPIOs and Deemed CPIO were responsible for deliberately, malafidely and persistently obstructing the information without any reasonable cause and therefore, deserved to be penalized.
On the issue regarding the responsibility of the Head clerk in discharging the instant RTI application, it was contested that the head clerk was not the custodian of information under the RTI Act, 2005 and that the Respondent was trying to manipulate the facts before the Commission. A reference was drawn to the decision of the Hon'ble Delhi High Court in the case of J.P Agrawal v. Union of India-2013(287) ELT25(Del.) wherein it was held as under:
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."
Furthermore, a reference was made to the decision of the Commission on similar issues in Decision no. CIC/SB/C/2015/000049 dated 28.02.2017 wherein was held as under:
"19. The Commission, after hearing the submissions of both the parties and perusing the records, notes that the then Asst. Registrar's explanation, for his inability to provide information to the complainant in time, is that the RTI application was not put up by one Shri Satish Kumar, who is a Head Clerk of Single Member Bench, CESTAT. The Commission finds this extremely inadequate to justify such continued inaction on the part of the CPIO because the Head Clerk is neither the custodian of the information nor is he responsible under the RTI Act. Further, there is nothing on record that even suggest that Shri S K Verma had sought the assistance of Shri Satish Kumar, under Section 5(4) of the RTI Act. The Commission also observes that Shri S.K. Verma, the then Assistant Registrar, CESTAT cannot escape his responsibility by merely saying that it is the duty of his sub-ordinates to provide information. The Hon'ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed ".....that a CPIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information. The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow".Page 5 of 9
In view of the above, the Commission imposes a token penalty of Rs. 5000/- on Shri S.K. Verma, the then Assistant Registrar, CESTAT for not providing information within the stipulated time."
Therefore, the Appellant had prayed for imposition of penalty under Section 20(1), and disciplinary proceedings against Respondent no.4 and had sought compensation for the loss and detriments suffered by him due to illegal and malafide act of the Respondent no.4.
The Respondent no.1 (Mr. Rajendra Prasad) vide its letter dated 08.03.2017 had responded to the show cause notice issued by the Commission. In its letter it had been submitted that the instant RTI application was duly transferred by him to Asst. Registrar (Customs) and Asst. Registrar(SM) CESTAT under Section 5(4) and 5(5) of the RTI Act, 2005 wherein it was requested to provide information to the Appellant within the stipulated time period. In response, the AR (Customs/ST) vide its letter dated 27.08.2014 stated that the Appeal number furnished by the Appellant was incorrect and therefore the same reply was forwarded to the Appellant vide letter dated 28.08.2014. Furthermore, the present CPIO, in compliance of the order of the Commission in its previous hearing had initiated proceedings in collecting information as sought by the Appellant in his RTI application but despite sincere efforts by the present CPIO, information could not be traced.
The Appellant, during the hearing, had requested the Commission to drop penalty proceedings against Mr, Rajendra Prasad as he had duly performed his duty of transferring the RTI application to relevant divisions in a time bound manner.
With regard to imposition of penalty on the CPIO under Section 20(1) of the RTI Act,2005; the Hon'ble Delhi High Court in Ministry Of Railways Through .. vs Girish Mittal on 12 September, 2014 (W.P.(C) 6088/2014 & CM Nos.14799/2014, 14800/2014 & 14801/2014) had held as under:
"5. Section 20 of the Act provides for imposing penalty on a Central Public Information Officer or a State Public Information Officer. The opening sentence of Section 20(1) of the Act clearly indicates that in given cases penalty may be imposed where the CIC "at the time of deciding any complaint or an appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer" has without reasonable cause refused to receive an application or failed to furnish the information within the specified time. Section 20(1) of the Act is quoted below:-
"20. Penalties.--(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the Page 6 of 9 case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be."
6. It is apparent from the language of Section 20(1) of the Act that the CIC can impose a penalty at the time of deciding any appeal or complaint.
7..... penalty can also be imposed by the CIC if on inquiry made pursuant to a complaint, it is found that a CPIO has not furnished the information in time or has knowingly given incorrect or incomplete information. Therefore, in my view, the jurisdiction exercised by CIC cannot be faulted."
Similarly, the Hon'ble Delhi High Court 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."
Furthermore, the HIGH COURT OF DELHI (DECIDED ON: 27.04.2009) W.P. (C) 8708/2008 LIFE INSURANCE CORPORATION OF INDIA vs. THE CENTRAL INFORMATION COMMISSION; wherein it was held as under:
".....The circumstances under which the information was withheld from the appellant leads to a strong inference that the CPIO has denied the information on a ground which has no relevance either to the facts-in- issue or the law. The RTI-application has been handled casually and in a most perfunctory way. The manner in which the RTI application has been disposed of by the CPIO is evidence enough that this he has done knowingly.
6. It is not disputed by the petitioners that information as sought was not furnished at all till the proceedings were initiated by the CIC. In fact, the final order of the CIC also records this. In these circumstances, the argument made about the fact that the lift had stopped operating since 2007, cannot be termed as satisfying the requirements of the Application.
7. To pointed queries, specific answers with relevant particulars have to be given; in case such information is not available, even that too has to be disclosed. Neither course of action was adopted in this case."
It was noted by the Commission that the Appellant was able to contest the submission of the Respondent and substantiate his claims further regarding the unreasonable delay caused in responding to the RTI application filed by the Appellant. The Commission felt satisfied by the contentions raised by the Appellant for the undue delay caused in providing response by Respondent no.4 and moreover, it was also noted that the information has not been provided to the Appellant, till date despite the order of the Commission to provide the same. The argument raised by the Respondent Page 7 of 9 no.4 that the Head clerk was responsible for non-furnishing of information to the Appellant, could not be sustained. The Commission takes a serious view of the lackadaisical/callous attitude adopted by the CPIO( Respondent no.4) who has not bothered to comply with his duties as per the provisions of the RTI Act,2005.
However, the Commission noted that the Appellant vide his written submission dated 30.03.2017 had also prayed for initiation of penalty proceedings against Shri V.P Pandey, CPIO and AR(Excise), CESTAT, New Delhi which could not be sustained as during the hearing before the Commission dated 22.02.2017, the Commission had found Shri. Rajendra Prasad and Shri. Kripa Shanker to be responsible for giving explanations for the delay caused in providing information to the Appellant and any further prayer for penalty proceedings against the other officer of the Respondent Public Authority does not hold merit at this stage, keeping in view the facts of the case.
In this context, The Hon'ble Delhi High Court decision in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 it has held that:
"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. A responsible officer cannot escape his responsibility by saying that he depends on the work of his subordinates. The PIO has to apply his own mind independently and take the appropriate decision and cannot blindly approve / forward what his subordinates have done.
9. This Court in Mujibur Rehman Vs. Central Information Commission MANU/DE/0542/2009 held that information seekers are to be furnished what they ask for and are not to be driven away through filibustering tactics and it is to ensure a culture of information disclosure that penalty provisions have been provided in the RTI Act. The Act has conferred the duty to ensure compliance on the PIO. This Court in Vivek Mittal Vs. B.P. Srivastava MANU/DE/4315/2009 held that a PIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information; that the Act as framed casts obligation upon the PIO to ensure that the provisions of the Act are fully complied. Even otherwise, the settled position in law is that an officer entrusted with the duty is not to act mechanically. The Supreme Court as far back as in Secretary, Haila Kandi Bar Association Vs. State of Assam 1995 Supp. (3) SCC 736 reminded the high ranking officers generally, not to mechanically forward the information collected through subordinates. The RTI Act has placed confidence in the objectivity of a person appointed as the PIO and when the PIO mechanically forwards the report of his subordinates, he betrays a casual approach shaking the confidence placed in him and duties the probative value of his position and the report."
ADJUNCT DECISION:
Keeping in view the facts of the case and submission made by both the parties and in light of the decisions of the Hon'ble High Courts and the Commission on 28.02.2017, the Commission finds that as per the provisions of Section 20(1) of the RTI Act, 2005, this is a fit case for levying of the maximum penalty of Rs. 25,000/- on Mr. Kripa Shanker, AR, CESTAT, 1st Floor, HMWSSB Building, Rear Portion, Khairatabad, Hyderabad - 500004 for not providing the information to the Appellant Page 8 of 9 within the stipulated time frame. Apportioning the blame on the Head Clerk by the Respondent exposed the conduct and discipline exercised by the Respondent in the functioning of the Public Authority which is inappropriate and unpardonable.
The Appellate Authority, CESTAT, New Delhi is directed to recover the amount of Rs 25,000/- in five equal instalment of Rs.5000/- each from the salary payable to Mr. Kripa Shanker, AR, CESTAT, 1st Floor, HMWSSB Building, Rear Portion, Khairatabad, Hyderabad - 500004 starting from the Month of August, 2017, and remit the same by way of Demand draft drawn in favour of "Pay and Accounts Officer, CAT" payable at New Delhi and sent the same 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.
The Show cause proceedings are disposed of accordingly.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Copy to:
1- Chairman, CBEC, Department of Revenue, M/o Finance, North Block, New Delhi - 110001;
2- Justice (Dr.) Satish Chandra, President, CESTAT, Customs Excise & Service Tax, Appellate Tribunal, West Block No. 2,R K Puram, New Delhi-110066 3- Appellate Authority, CESTAT, Customs Excise & Service Tax, Appellate Tribunal, West Block No. 2,R K Puram, New Delhi-110066 4- 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.Page 9 of 9