Central Information Commission
Mr.Harish Kumar vs Mcd, Gnct Delhi on 24 May, 2012
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2012/000880/18723Penalty
Appeal No. CIC/SG/A/2012/000880
Relevant Facts emerging from the Appeal:
Appellant : Mr. Harish Kumar
628/3 Shivaji Road, Pul
Delhi -110006
Respondent : Mr. Manoj Kumar Nijhawan,
EE(B) & Deemed PIO Municipal Corporation of Delhi SP Zone, Zonal bldg, Near PS Sadar Bazaar, Idgah road, Paharganj, Delhi-110006 RTI application filed on : 12/12/2011 PIO replied : 07/02/2012 First Appeal : 18/01/2011 First Appellate Authority order : 01/03/2012 Second Appeal received on : 15/03/2012 S.no Queries 1 Please provide the certified copies of file noting with correspondence of sealing file of DCM flatted factory complex.
2 Please provide the certified copies of file noting with correspondence of revocation of Competition certificate DCM flatted factory complex. 3 Please provide the certified copies of file noting with correspondence of de-sealing file of DCM flatted factory complex.
4 Please provide the certified copies of file noting with correspondence of demolition action file of DCM flatted factory complex.
5 Please provide the certified copies of demolition order passed by the building department, S.P.Zone from 01-01- 2011 to till date i.e. 12-12-2011. 6 Please provide the certified copies of demolition order passed by the building department, S.P.Zone from 01-01- 2011 to till date i.e. 12-12-2011. 7 Please provide the certified copies of dc-sealing register of building department, S.P.Zone from 01-01- 2011 to till date i.e. 12-12-2011.
8 Please provide the certified copies of sealing register of building department, S.P.Zone from 01-01-201 to till date i.e. 12-12-2011.
9 Please provide the certified copies of STF complaint receiving register of building department, S.P.Zone from 01-04-2011 to fill date i.e. 12-12-2011.
PIO's Reply Answered by EE (B) SPZ has provided point wise information to the Appellant. Grounds for the First Appeal:
Information has not been provided.Page 1 of 4
Order of the FAA:
FAA ordered that the PIO already provided the information but appellant could not get the reply so same is handed over during the course of hearing.
Relevant Facts emerging during Hearing on 03 May 2012:
The following were present:
Appellant: Mr. Harish Kumar;
Respondent: Mr. I. U. Khan, AE on behalf of Mr. Subhash Dodrai, PIO & SE (SPZ);
"The Appellant had filed online application on 12/12/2011 as admitted by the Respondent. However, the reply was sent by email only on 07/02/2012. The reply states that, "information sought by the Appellant through his point is that the record is in the custody of the Vigilance Department/MCD, cannot be provided to Appellant by Building Department, SPZ." The Appellant states that this is false information which has been provided to him since he has received information from Mr. Ved Prakash, AD(Vigilance) and PIO on 09/04/2012 stating that, "the record related to DCM Flattered Factory Complex, Bara Hindu Rao was ceased by Vigilance Department on 05/02/2011 and the same was returned to EE(B) SP Zone on 24/10/2011 vide letter no. ADOV/VIG/PTA/2011/5511.
The Respondent states that the false information was provided by email to the Appellant by Deemed PIO Mr. Manoj Kumar Nijhawan, EE(B)."
Commission's Decision dated 03 May 2012:
The Appeal was allowed.
"The Commission directs the PIO to provide the complete information sought by the appellant before 25 May 2012.
The issue before the Commission is of not supplying the complete, required information by the Deemed PIO Mr. Manoj Kumar Nijhawan, EE(B) within 30 days as required by the law. From the facts before the Commission it appears that the deemed PIO is guilty of not furnishing complete information within the time specified under sub-section (1) of Section 7 as per the requirement of the RTI Act. It appears that the PIO's actions attract the penal provisions of Section 20 (1). A showcause notice is being issued to him, and he is directed give his reasons to the Commission to show cause why penalty should not be levied on him.
Deemed PIO Mr. Manoj Kumar Nijhawan, EE(B) will present himself before the Commission at the above address on 24 May 2012 at 12.30pm alongwith his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20 (1). He will also submit proof of having given the information to the appellant.
If there are other persons responsible for the delay in providing the information to the Appellant the PIO is directed to inform such persons of the show cause hearing and direct them to appear before the Commission with him. If no other responsible persons are brought by the persons asked to showcause hearing, it will be presumed that they are the responsible persons"
Relevant Facts emerging during showcause hearing on 24 May 2012:
The following were present:
Appellant: Mr. Harish Kumar;
Respondent: Mr. Manoj Kumar Nijhawan, EE(B) & Deemed PIO; Mr. Gulshan Kumar, JE(B)SPZ;
The Respondent Mr. Nijhawan states that the entire information will be sent to the Appellant tomorrow i.e. 25 May 2012 as per the order of the Commission by speed post. Mr. Nijhawan has also stated that he has asked Mr. I. U. Khan, AE(B) SPZ to be present. Mr. I. U. Khan has taken casual leave since he is not well from 22/05/2012 to 24/05/2012 and Mr. Nijhawan has produced the leave application Page 2 of 4 of Mr. I. U. Khan. Mr. Nijhawan states that the assistance of Mr. Gulshan Kumar, JE (B) has been sought for providing the information. Mr. Gulshan Kumar admits that the RTI application was given to him on 20/12/2011 to provide the information. Mr. Nijhawan states that the relevant files have been received from the Vigilance Department on or about 24/10/2011 by Mr. I. U. Khan, AE personally related to DCM. He states that these files were photocopied and photocopied set was kept by the Department and the original files were sent to ATMCD on 30/31 October 2011. Thus when the RTI application was given to Mr. Gulshan Kumar, JE(B) the photocopies of the files were with the department. The authenticity of these photocopies were not in doubt.
It is noted by the Commission that the RTI application was received by the Department on 12/12/2011. It is also admitted that a complete set of photocopies of the said files were with the Department since October 2011. Despite this no information was provided to the Appellant. At a very leisurely pace it is claimed that an email was sent by Mr. Manoj Kumar Nijhawan, EE(B) to the appellant on 07/02/2012 stating that no information could be provided since the files were with Vigilance Department. Mr. Nijhawan states that this information was given to him on 06/02/2012 by the AE and JE and hence this email was sent. The Commission notes that the PIO had sought the assistance of Mr. Manoj Kumar Nijhawan, EE(B) as per the provisions of Section 5(4) of the RTI Act to provide the information. It is evident that no information was sent to the Appellant and despite having the information in terms of photocopies taken by the Department itself refused to provide it. No reasonable cause has been advanced for not providing the information to the Appellant. Considering the total circumstances and the nature of information which was denied there appears to be some possibility of there being some malafide reasons for not providing the information. The Commission therefore recommends that the Municipal Commissioner consider inquiring into this matter to ascertain if some gross illegality is being committee in this matter.
Under Section 5(4) of the RTI Act only the PIO has been given the power to seek assistance from any other officer to provide information. From a reading of Section 5(5) of the RTI Act, it appears that the officer whose assistance is sought shall be treated as the PIO only for the purpose of Section 20 of the RTI Act and not for the purpose of Section 5(4) of the RTI Act. Therefore, the officer whose assistance is sought cannot transfer the liability of providing the information to another officer. Even if he did seek assistance, he would be the person responsible to provide the information on time and in case of default be liable for penalty under Section 20 of the RTI Act. Justification for the aforesaid may also be found in Section 2(j) of the RTI Act which stipulates that information sought by the Appellant must be held by or be in control of a public authority. The RTI Act does not name any specific officer who must have custody of the information sought. There is an administrative responsibility on the part of the PIO and/ or deemed PIO seeking further assistance to provide the correct and complete information in a timely manner, which cannot be shifted to a subordinate officer.
The Commission has noted that in the instant case, the PIO had sought the assistance of Mr. Manoj Kumar Nijhawan, EE(B) under Section 5(4) of the RTI Act. Mr. Nijhawan forwarded the RTI application to Mr. Gulshan Kumar, JE who failed to submit the correct and complete information within the prescribed time limit. The Commission is of the view that in such circumstances, notwithstanding the default on the part of Mr. Gulshan Kumar JE, Mr. Manoj Kumar Nijhawan EE would be the deemed PIO for the purposes of Section 20 of the RTI Act and therefore, would be liable to be penalised.
The RTI application was received by the PIO on 12/12/2011 and the information should have definitely been provided to the Appellant before 12/01/2012. Instead an email was sent to the appellant on 07/02/2012 stating that the information was not available with the department but was with the Vigilance Department. The Appellant by another RTI application discovered that Vigilance Department has sent the file to the PIO in October 2011. Before the Commission it has been admitted that a complete photocopy of the files had been made and kept in the Department. Despite this the information was not provided to the Appellant without any reason. The Commission also notes that no exemption of the RTI Act has been Page 3 of 4 claimed. The complete information will be sent to the Appellant on 25/05/2012 as committed by the Resopndent Mr. Manoj Kumar Nijhawan.
Since no reasonable cause has been offered by Mr. Manoj Kumar Nijhawa, EE(B) & Deemed PIO for the delay in providing the information and the delay is much in excess of 100 days the Commission is imposing the maximum penalty of `25000/- under Section 20(1) of the RTI Act on him.
Decision:
As per the provisions of Section 20 (1) of the RTI Act 2005, the Commission finds this a fit case for levying penalty on Mr. Manoj Kumar Nijhawa, EE(B) & Deemed PIO. Since the delay in providing the information has been over 100 days, the Commission is passing an order penalizing Mr. Manoj Kumar Nijhawa `25000/ which is the maximum penalty under the Act.
The Commissioner, Municipal Corporation of Delhi is directed to recover the amount of `25000/- from the salary of Mr. Manoj Kumar Nijhawa and remit the same by a demand draft or a Banker's Cheque in the name of the Pay & Accounts Officer, CAT, payable at New Delhi and send the same to Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary of the Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi - 110066. The amount may be deducted at the rate of `5000/ per month every month from the salary of Mr. Manoj Kumar Nijhawa and remitted by the 10th of every month starting from July 2012. The total amount of `25000 /- will be remitted by 10th of November, 2012.
Shailesh Gandhi Information Commissioner 24 May 2012 (In any correspondence on this decision, mention the complete decision number.) (PG) Copies to:
1- The Municipal Commissioner
Municipal Corporation of Delhi
04th Floor, Dr. SPM Civic Center,
New Delhi
2. Shri Pankaj K.P. Shreyaskar,
Joint Registrar and Deputy Secretary
Central Information Commission,
2nd Floor, August Kranti Bhawan,
New Delhi - 110066
3. Mr. Subhash Dodrai
PIO & SE (SPZ)
Municipal Corporation of Delhi
SP Zone, Zonal bldg, Near PS Sadar Bazaar,
Idgah road, Paharganj,
Delhi-110006
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