Central Information Commission
Rajesh Kumar Gupta vs Central Board Of Secondary Education on 5 March, 2020
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
Decision no.: CIC/CBSED/A/2018/629692/03067
File no.: CIC/CBSED/A/2018/629692
In the matter of:
Rajesh Kumar Gupta
... Appellant
VS
1. Central Public Information Officer
Central Board of Secondary Education (CBSE)
Regional Office, Ambika Complex, Shekhpura,
Rajabazar, Balley Road, Patna - 800 014
2. Central Public Information Officer
Central Board of Secondary Education (CBSE)
"Shiksha Kendra" 2, Community Centre,
Preet Vihar, Delhi - 110 092
...Respondents
RTI application filed on : 25/04/2018 CPIO replied on : 12/06/2018 First appeal filed on : 19/06/2018 First Appellate Authority order : 16/07/2018 Second Appeal dated : 16/08/2018 Date of Hearing : 04/03/2020 Date of Decision : 04/03/2020 The following were present: Appellant: Present in person
Respondent: Smt. Shakuntala, Assistant Secretary and CPIO, present in person; Shri Rajesh Sethi, Deputy Secretary and CPIO, present over VC Information Sought:
The appellant is not satisfied with the information provided to him on query 7 & 8 of his RTI application which are mentioned below:1
7. Certified copy of note-sheet/correspondence/e-mail regarding action taken on his request for release of medical advance of Rs. 49000, which has been endorsed to DS (A&L) by e-mail on 05/03/18, 06/03/18, 08/03/18, 09/03/18, 10/03/18 and 12/03/18.
8. Certified copy of note-sheet/correspondence in connection with action taken on his grievance regarding non-reimbursement of medical bill & release of medical advance dated 25/09/2017 sent by Speed post No. EF194063486IN dated 26/09/17 and by e-mail on 26/09/17 and 25/10/17.
Grounds for Second Appeal The CPIO did not provide a satisfactory reply to query 7 & 8 of the RTI Application.
Submissions made by Appellant and Respondent during Hearing:
The appellant submitted that the case was filed u/s 18 and the same should be treated as a complaint. He further submitted that the identical RTI application was heard on 20.01.2020 and the following order was passed.
"Keeping in view the request of the appellant with regard to penalty, disciplinary action to be imposed on the CPIO, the Commission finds no malafide in the failure to give the proper information. It appears to be more of a lack of understanding of the provisions of the RTI Act and a casual approach in replying. Accordingly, the then CPIO Shri Suresh Kumar, Assistant Secretary, Regional Office, NOIDA is issued a strict warning to be careful in future while replying to RTI applications. The present CPIO shall serve a copy of this order to the then CPIO Shri Suresh Kumar, Assistant Secretary, Regional Office, NOIDA. The present CPIO shall also provide a revised reply in respect of points no. 3,7,8, 9 and 10 of the RTI application (as pressed by the appellant during hearing) within 7 days from the date of receipt of the order."
It was vehemently argued by the appellant that the above order was not complied with on time. He further submitted that the said memo of warning as mentioned in the order was issued to the then CPIO Shri Suresh Kumar, Assistant Secretary, Regional Office, Noida after the present notice of hearing was served. He pressed for penalty against the present CPIO for delay caused in issuing warning and for delayed reply.
He also pointed out that he had appealed u/s 18 of the Act and requested to take action u/s 20(2) but the Commission had passed an order u/s 19 to provide a revised reply. To buttress his argument he relied on the Hon'ble 2 File no.: CIC/CBSED/A/2018/629692 Supreme Court order in Civil Appeal nos. 10787-10788 of 2011 in the matter of CIC & Other vs State of Manipur & Another, dated 12.12.2011. He relied on para 30,31,35 and 37 which are self explanatory, of the referred judgment of Hon'ble Supreme Court "....Section 18 and 19 of the Act serve two different purpose and lay down two different procedures and they provide two different remedies. One can not be substitute for the other."
He requested the Commission to consider his complaint u/s 18 of the RTI Act and pass an order to impose penalty and recommend disciplinary action against the CPIO u/s 20 of the RTI Act.
The CPIO submitted that the order dated 20.01.2020 was received on 29.01.2020 and was duly complied with vide letter dated 04.02.2020. She further submitted the speed post acknowledgment no. ED402816733IN. Furthermore, she pointed out that the order dated 20.01.2020 of the Commission had already considered the plea of the complainant for penalty against the CPIO and severe warning was issued against the then CPIO finding lack of malafide.
Observations:
The Hon'ble Supreme Court order in Civil Appeal nos. 10787-10788 of 2011 in the matter of CIC & Other vs State of Manipur & Another, dated 12.12.2011. para 30,31,35 and 37 was perused and are enumerated below:
"30. It has been contended before us by the respondent that under Section 18 of the Act the Central Information Commission or the State Information Commission has no power to provide access to the information which has been requested for by any person but which has been denied to him. The only order which can be passed by the Central Information Commission or the State Information Commission, as the case may be, under Section 18 is an order of penalty provided under Section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide.
31. We uphold the said contention and do not find any error in the impugned judgment of the High court whereby it has been held that the Commissioner while entertaining a complaint under Section 18 of the said Act has no jurisdiction to pass an order providing for access to the information.
35. The procedure for hearing the appeals have been framed in exercise of power under clauses (e) and (f) of sub-section (2) of Section 27 of the Act. They are called the Central Information Commission (Appeal Procedure) Rules, 2005. The procedure of deciding the appeals is laid down in Rule 5 of the said Rules. 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 3 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. It is a time honoured principle as early as from the decision in Taylor v. Taylor [(1876) 1 Ch. D. 426] that where statute provides for something to be done in a particular manner it can be done in that manner alone and all other modes of performance are necessarily forbidden.
This principle has been followed by the Judicial Committee of the Privy Council in Nazir Ahmad v. Emperor [AIR 1936 PC 253(1)] and also by this Court in Deep Chand v. State of Rajasthan - [AIR 1961 SC 1527, (para 9)] and also in State of U.P. v. Singhara Singh reported in AIR 1964 SC 358 (para 8).
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."
Based on the relief sought the instant case is treated as a complaint u/s 18 of the RTI Act. However, it is relevant to mention here that by his own admission the complainant has mentioned that he had filed two petitions u/s 18 of the RTI Act for the single RTI application dated 25.04.2018. The case no. CIC/CBSED/A/2018/629695 was filed on 25.08.2018 and the present case CIC/CBSED/A/2018/629692 was filed on 16.08.2018. The Commission is of the view that the applicant had unnecessarily filed two complaints on the same RTI application and both were registered as appeal as he had not disclosed in his petition dated 25.08.2018 that an identical complaint was already filed by him on 16.08.2018. Moreover in both the petitions, he had written the subject as Second appeal under section 18 of the RTI Act 2005.
Considering his grievance case no. CIC/CBSED/A/2018/629695 was decided as an appeal though it was filed u/s 18 of the Act. It was found necessary to point out that since the appellant is an officer in CBSE he should have been specific while writing his petition dated 25.08.2018 in respect of case no. CIC/CBSED/A/2018/629695 where he had written the subject as Second appeal under section 18 of the RTI Act 2005. Hence, in the interest of justice the Commission had registered the case u/s 19 of the Act so that both the aspects can be considered i.e information disclosure qua proceedings against the respondent for delay in providing information. It is further pertinent to mention here that the request of the complainant with regard to penalty, disciplinary action to be imposed on the CPIO was already considered on 20.01.2020 in case no. CIC/CBSED/A/2018/629695.
4File no.: CIC/CBSED/A/2018/629692 Moreover, as regards the plea taken by the complainant regarding not considering his plea u/s 18 of the Act, the Commission referred to the judgement of the Hon'ble Delhi High Court in the matter of Union of India vs. Vansh Sharad Gupta in W.P(C) 4761/2016. The relevant observations made in the judgement are as under:
" 4. This Court is not an appellate Court of the CIC. Technical and procedural arguments cannot be allowed to come in the way of substantial justice. The directions given by the CIC in the impugned order are not only fair and reasonable but also promote the concept of rule of law. It is unfortunate that the petitioner did not take the initiative on its own to upload the latest amended bare Acts"
It is further relevant to mention here that the appellant's fresh contention that the order dated 20.01.2020 of the bench was not complied with on time was unfounded. The CPIO had sufficiently proved that the said order was duly complied with. The complainant's plea that the memo of warning was issued late to the concerned officer was examined and it was noted that the same was put up by the concerned officer on 12.02.2020 and processed hierarchy wise and was signed by the Chairperson, CBSE on 24.02.2020 before serving the same to the then CPIO. The Commission considers it apt as the Authority of the organisation should be well informed before such warning or memo is served against an officer who is charged with violation of the RTI Act. The same shall lead to reformative measures to be taken by such authority as the purpose of such warning is reformative not punitive.
Decision:
In view of the above discussions, the Commission finds that the present complaint is a duplicate of the earlier case no. CIC/CBSED/A/2018/629695 adjudicated on 20.01.2020. Moreover, the present complaint was filed on 16.08.2018 and the complaint related to case no. CIC/CBSED/A/2018/629695 was filed on 25.08.2018 and hence, there is no justification to consider his repeated complaints.
The Commission would also like to rely on the decision dated 20.02.2020 of the Hon'ble Calcutta High Court in the matter of Chaitanya Kumar Singhania vs Union of India & Ors. WP 10042 (W) of 2018. The relevant part of the order reads as follows:
5"It is also indisputable position that the Appellate Authority was returned the appeal filed by the petitioner with a direction that separate appeals be filed relating to the separate right to information applications which have been submitted by the petitioner. In this connection, a letter dated 7th June, 2018 is also annexed to the petition (at page 118). Accordingly, there is no competent appeal pending before the Appropriate Authority. In view of the aforesaid indisputable factual position there is not an iota of merit in this petition. The petitioner has undertaken a kite flying exercise. There is lack of bonafides on the part of the petitioner. The writ petition is dismissed with costs assessed at Rs 10,000/- to be paid to each of the appearing respondents."
The Complainant should know that the RTI Act is a means to promote public interest and should not be used as an instrument to harass the public authority. His repeated complaints have a grave impact on the functioning of CBSE, and if this is allowed, the public authority cannot focus on their core duties and their entire time will be devoted to such repeated/multiple RTI questions. This is misuse and it has to be checked. In the context of the aforesaid observations, Commission does not find it expedient to take any further action.
The complaint is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सच ू ना आय! ु 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 6