Central Information Commission
Seema Dharamsingh vs Chief Commissioner Of Customs And ... on 27 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/CECHZ/A/2018/130414-BJ
Ms. Seema Dharamsingh
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
O/o the Chief Commissioner GST & Customs
Hyderabad Zone, GST Bhawan
Lal Bahadur Stadium Rad, Basheerbagh
Hyderabad - 500004
... ितवादीगण /Respondent
Date of Hearing : 25.11.2019
Date of Decision : 27.11.2019
Date of RTI application 18.04.2017
CPIO's response 09.04.2018
Date of the First Appeal 02.08.2017
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 14.05.2018
ORDER
FACTS:
The Appellant vide her RTI application sought information on 04 points regarding the policy for Inter Zone Transfer in respect of Central Excise Inspectors and Tax Assistants; Number of ICT representatives considered in past 6 months from the Respondent Zone to other Zones; number of ICT representations pending for consideration in the cadre of Inspectors and Tax Assistants and issues related thereto.
The CPIO, O/o the Chief Commissioner of Customs and Central Excise, Hyderabad, vide its letter dated 09.04.2018 forwarded the RTI application to the concerned CPIO. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.Page 1 of 6
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Mr. P. Shyam, Assistant Commissioner & CPIO through VC;
The Appellant remained absent during the hearing. Mr. Bhavin Patel, Network Engineer NIC studio at Ahmedabad confirmed the absence of the Appellant. The Respondent re-iterated the reply of the CPIO and their written submission dated 21.11.2019 and stated that the information sought was provided vide letter dated 03.05.2018. While admitting that substantial delay had occurred in providing the information, the Respondent attributed the same to technical glitches pertaining to non-operational login user id and password from 30.06.2016 till 26.03.2018. The Respondent tendered their unconditional apology for the delay in response but stated that the same was unintentional.
The Commission was in receipt of a written submission from the Respondent dated 21.11.2019 wherein it was stated that the information sought was provided by the concerned CPIO and Dy. Commissioner (Tech) O/o the Pr. Commissioner of Central Taxes, Hyderabad vide letter dated 03.05.2018. In the meanwhile, the Appellant filed a Second Appeal before the Commission on 08.05.2018. While re-iterating the chronological sequence of the replies provided in the matter, the Respondent stated that the First Appeal was decided vide order dated 26.04.2018 wherein the nodal officer, Chief Commissioner's Office, Hyderabad Zone was directed to send appropriate response to the Appellant. In compliance with the order of the FAA, the CPIO, Hyderabad GST Commissionerate vide reply dated 03.05.2018 provided the information to the Appellant. Explaining the reasons for the delay in providing the information, the Respondent stated that the relevant login account of the nodal officer/ CPIO, CCO, Hyderabad was not operational from 30.06.2016 including during the period involved in respect of the subject application and the account was also blocked. It was only on 26.03.2018 by using a new password and login id received from helpdesk of rtionline.gov.in, the account was logged in and necessary action initiated to dispose off the pending applications/ appeals found therein including the application and first appeal of the subject applicant. The reason for the said non operational status of the account whether due to technical glitches, etc was not known/ available on record.
Though not directly relevant for the delay caused, it was stated that the period in question coincided with the rollout of GST w.e.f., 01.01.2017 involving inter alia major jurisdictional and intra organizational changes, consequential relocations apart from multiple time bound activities entrusted to Departmental Officers at all levels for ensuring smooth and hassle free transition to and implementation of new scheme of taxation. In view of the above, while admitting that there was substantial delay in furnishing of information the same appeared to be without control and not with an intention to delay/ deny the information.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"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."Page 2 of 6
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."
The Commission also observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon'ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was held as under:
Page 3 of 6"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."
A reference can also made 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:
" 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 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 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".
The High Court of Himachal Pradesh in the matter of Block Development Officer, Paonta Sahib vs. State Information Commission and Anr., CWP No. 6072 of 2012 dated 27.06.2018 held as under:
"9. It is vehemently urged by learned counsel for the petitioner that the impugned order suffers from vice of arbitrariness and, therefore, should be quashed and set aside. It was further argued that the petitioner on receipt of the application had transferred it to the concerned authorities and, therefore, there was no lapse on his part. He would also urge that the petitioner did not know the intricacies of the RTI Act and, therefore, he could not have been penalized.Page 4 of 6
10. I find no merit in the contention put-forth by the petitioner. It is more than settled that ignorance of law can be no excuse. Once the petitioner is designated as PIO, then all the more he is deemed to have knowledge and even otherwise the least that was required of him was to have acquainted himself thoroughly with the provisions of the RTI Act. Therefore, the explanation as sought to be put-forth by the petitioner at this stage clearly reflects the lackadaisical attitude of the petitioner. The only reasonable explanation for the cause of delay can be accepted and not lame excuses."
The Commission thus 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.
The Appellant was not present to contest the submissions of the Respondent or to substantiate his claims further.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent, the Commission directs the Chairman, CBIC, New Delhi, to depute an officer of an appropriate seniority to examine the matter and fix accountability and responsibility on the delinquent officer for not replying to the RTI application within the stipulated time limit within a period of 30 days from the date of receipt of this order under intimation to the Commission and the Appellant. It is also instructed that the procedure for allotment of password for accessing and replying to the RTI applications should be streamlined forthwith to avoid inconvenience to the public at large. The Respondent was also advised to endorse a copy of their written submission sent to the Commission to the Appellant, as well.
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: 27.11.2019
Page 5 of 6
Copy to:
1. Chairman, CBIC, Department of Revenue, M/o Finance, North Block, New Delhi - 110001;Page 6 of 6