Central Information Commission
Md Nurul Alam vs Department Of Space on 30 June, 2020
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/DSPCE/A/2018/167843-BJ
Dr. Md Nurul Alam
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Dy. Secretary,
Indian Space Research Organisation,
Department of Space, Antariksh Bhawan,
New BEL Road, Bengaluru - 560231
... ितवादीगण /Respondent
Date of Hearing : 29.06.2020
Date of Decision : 30.06.2020
Date of RTI application 11.06.2018
CPIO's response 10.08.2018
Date of the First Appeal 25.07.2018
First Appellate Authority's response 28.08.2018
Date of diarised receipt of Appeal by the Commission 16.11.2018
ORDER
FACTS The Appellant vide his RTI application sought information on 04 points regarding the copies of the written documents of Charge Handover since 01.01.2011 to 11.06.2018; whether any new work or initiative had been undertaken by Dr. Nishtha Anilkumar in the capacity of Head, LIS, Librarian SE and Librarian SD at PRL Library, Ahmedabad; whether the same was reported to any authority at PRL, if yes, a copy of the same, etc. The CPIO, vide letter dated 10.08.2018, informed the Appellant that the information sought would be provided on its receipt from custodian of information. Dissatisfied due to non receipt of any response, the Appellant approached the FAA. The FAA, vide its order dated 28.08.2018, directed the CPIO/ custodian of records to provide the relevant information to the Appellant within 30 days, if the same is not exempted under Section 8 of the RTI Act, 2005 subject to `severability clause' u/s 10 (1).
Page 1 of 7HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Dr. Md Nurul Alam through VC;
Respondent: Ms. Kamala Rajesh, Dy. Secretary and CPIO, Bangalore, Mr. Anand D. Mehta, Head P&GA / CPIO, Ahmedabad and Mr. K. K. Sasiskumar, Sr. AO & APIO through VC;
The Appellant reiterated the contents of the RTI application and stated that the information sought had not been received by him, till date. He further alleged that the implementation of the RTI Act, 2005, in the Respondent Public Authority is far from satisfactory and that they were not adhering to the provisions of the RTI Act, 2005 and therefore, desired strict action to be initiated against the erring CPIO besides imposition of penalty. In its reply, the Respondent while tendering unconditional apology for the delay in replying to the RTI application apportioned blame on the APIO, the custodian of the information and the decentralization process within the Respondent Public Authority. It was further submitted that in compliance with Order/ Decision of First Appellate Authority of DOS, an Interim Reply was furnished to Appellant vide letter dated 05/09/2018. Furthermore, it was submitted that due to structural change of Centralized System to Decentralized system taken place during October 2018, the concerned file was misplaced inadvertently and reply in compliance with Order of the FAA, DOS was not furnished to Appellant. It was further assured that reply in compliance with Order of FAA will be furnished to Appellant immediately. On perusal of the records, it was evident that no reply was provided by the CPIO in compliance with the directions of the FAA even after a lapse of two years which is a grave violation of the RTI Act, 2005.
The Commission was also in receipt of a written submission from the Respondent dated 26th June, 2020 wherein while reiterating the background of the case, a Para-wise submissions were made in reference to 2nd Appeal filed before the Commission.
The Commission felt that correct and timely response is the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this context, the Commission referred to the decision of the Hon'ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been 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."
With regard to providing a clear and cogent response to the Complainant, the Commission referred to the decision of the Hon'ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
Page 2 of 7" 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."
8.............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."
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".
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only.
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at."
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."Page 3 of 7
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.
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 Delhi High Court in W.P.(C) 11271/2009 Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. (delivered on:
01.06.2012) wherein it was held:
" 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 showcause 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 ful fill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development 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."
Similarly, the following observation 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."
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:
Page 4 of 7"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."
The Commission also observed that the Hon'ble High Court of Delhi in the matter of R.K. Jain v. V.P. Pandey, CPIO, CESTAT, New Delhi in W.P. (C) No. 4785/ 2017 dated 10.10.2017 adjudicated on the correctness of an order of the Commission dated 17.04.2017 whereby the Respondent was cautioned to exercise due care in future and to ensure that correct and complete information is furnished to the RTI applicants. It was decided that:
"2. The grievance of the petitioner is that although the CIC had accepted that there was a delay in providing the necessary information to the petitioner, the CIC had not imposed the penalty as required under Section 20(1) of the Right to Information Act, 2005. It is well settled that imposing of the penalty is a discretionary measure. In Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 a division bench of this Court had considered the question whether the levy of penalty was discretionary and held as under..........
3. In this case it is apparent that the CIC had in its discretion considered that a order cautioning the CPIO would be sufficient. This Court is not inclined to interfere with such exercise of discretion."
Furthermore, the Hon'ble High Court in the matter of R.K. Jain v. CIC and Anr. in W.P.(C) 4152/2017 dated 10.10.2017 had held as under:
"5. The question whether the CIC had the discretion to restrict the penalty or whether penalty as provided under Section 20 of the Act is mandatory, is no longer res integra. The said question was considered by a Division Bench of this Court in Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 and the relevant extract of the said decision is set out below....
6. In view of the above, this Court finds no reason to interfere with the discretion exercised by the CIC. The petition is, accordingly, dismissed."
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 Page 5 of 7 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 2nd 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."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of perceptible delay in responding to the RTI application by the CPIO, the Commission expressed its deep displeasure over the poor handling of the RTI matters in the public authority ignoring the spirit of the law. The Commission therefore directs the Secretary, to initiate appropriate disciplinary action against the CPIO and also instructs the FAA to re-examine the RTI application and furnish complete point-wise information to the Appellant within a period of 15 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email (Email: [email protected]).
The Respondent is also instructed to forward a copy of the written submission sent to the Commission to the Appellant within a period of 15 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email, as agreed.
The Commission instructs the Respondent Public Authority 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.
(The Order will be posted on the website of the Commission).
Bimal Julka (िबमल जु का) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) K.L. Das (के .एल.दास) Dy. Registrar (उप-पंजीयक) 011-26186535/ [email protected] दनांक / Date: 30.06.2020 Page 6 of 7 Copy to:-
1. Dr. K. Sivan, Secretary, Indian Space Research Organisation, Department of Space, Antariksh Bhawan, New BEL Road, Bengaluru - 560231
2. Ms. Sandhya Venugopal Sharma, Jt. Secretary and First Appellate Authority, Department of Space, Antariksh Bhawan, New BEL Road, Bengaluru - 560231 Page 7 of 7