Central Information Commission
Vishambhar Dayal Gupta vs Indian Oil Corporation Limited (Iocl) on 28 November, 2019
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/IOCLD/A/2018/128473-BJ
Mr. Vishambhar Dayal Gupta
....अपीलकता/Appellant
VERSUS
बनाम
1. CPIO
General Manager (Marketing Division)
Indian Oil Corporation Ltd.
Rajasthan State Office, Indian Oil Bhawan
Ashok Chowk, Adarsh Nagar
Jaipur - 302004
2. CPIO (LPG), North
BPCL, Noida Regional Office
A-5 & 6, Sector 1, Noida-201301
... ितवादीगण /Respondent
Date of Hearing : 27.11.2019
Date of Decision : 28.11.2019
Date of RTI application 10.11.2017
CPIO's response 22.11.2017/
12.12.2017/
14.12.2017/
13.02.2018
Date of the First Appeal 12.02.2018
(mentioned in
FAA's order)
First Appellate Authority's response 12.03.2018
Date of diarised receipt of Appeal by the Commission 04.05.2018
Page 1 of 6
ORDER
FACTS:
The Appellant vide his RTI application sought information on 02 points regarding the notified list of LPG outlets/ distributors of Rajasthan, till date, in the desired format as mentioned in the RTI application along with the copy of roster register of Rajasthan-Marketing Plan (Year) Wise, etc. The CPIO, vide its letter dated 22.11.2017 stated that the information sought pertained to the Public Sector Oil Marketing Companies IOCL/BPCL/HPCL and hence, the same was forwarded to the concerned Authority. Subsequently, the CPIO (LPG) North, Noida Regional Office, vide its letter dated 12.12.2017 provided a point-wise available information to the Appellant. Further, the CPIO, IOCL, Jaipur, vide its letter dated 14.12.2017 informed that the desired information is available in soft form (CD) which could be given on payment of Rs. 50 by their office. Thereafter, the CPIO, IOCL, Jaipur, vide its letter dated 13.02.2018 after receiving the requisite fee from the Applicant, desired information available in their office in CD format was provided. Moreover, it was further submitted that the information regarding '200 point' roster for Rajasthan was already provided in the brochure for prevailing Guidelines for selection of LPG distributorship which is also available in public domain (details of website was provided). Dissatisfied with the response of the CPIO, the Appellant approached the FAA. The FAA vide letter dated 12.03.2018, concurred with the CPIO's response.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Vishambhar Dayal Gupta through VC;
Respondent: Mr. Nilot Pal Mandal, GM (LPG- Sales), Jaipur and Mr. Dheeraj Chourasiya, Manager (LPG- Sales), Jaipur through VC;
The Appellant reiterated the contents of the RTI application and stated that complete and satisfactory information was not provided to him, till date. It was further submitted that he requested for specific information in a desired format which was malafidely denied by the Respondent. In its reply, the Respondent, IOCL, stated that the available information in a format as maintained by the Public Authority had already been supplied to the Appellant. Moreover, the information regarding '200 point' roster for Rajasthan was already provided in the brochure for prevailing Guidelines for selection of LPG distributorship which is also available in public domain. The Appellant contested the above averments of the Respondent and submitted that the Marketing Plan, Addresses, etc. as desired was not provided to him. The Respondent consistently maintained its earlier submission and stated that the available information had already been supplied. With regard to response from BPCL and HPCL, it was informed that information as available and maintained by the Authority was furnished by them. The Appellant however remained dissatisfied with the response of the CPIOs and requested the Commission for imposition of penalty as per Section 20(1) of the RTI Act, 2005 on the erring Respondent for malafide denial of information.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:Page 2 of 6
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
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 was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), 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."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
Page 3 of 6The Commission referred to the decision of the Hon'ble Delhi High Court in the matter of J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was clearly stated that the PIO acts as the Pivot for enforcing the implementation of the Act. The relevant extracts of the decision are 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."
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."
Furthermore, 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:-
".....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."
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."
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, issued by the M/o Personnel, Public Grievances and Pensions, D/o Personnel and Training, while elaborating on the duties and responsibilities of the FAA, it was stated that:
Page 4 of 6"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."
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 5 of 6"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 Appellant could not substantiate his claims regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission directs the Respondent to re-examine the matter and provide a clear, cogent and precise point-wise response to the Appellant explaining the updated factual status in the matter within a period of 15 days from the date of receipt of this order, as agreed.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का)
(Information Commissioner) (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
(Dy. Registrar) (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 28.11.2019
Page 6 of 6