Central Information Commission
Amitava Choudhary vs Department Of Financial Services on 14 September, 2017
Central Information Commission, New Delhi
File No. CIC/MP/C/2016/000222/SH
Right to Information Act-2005-Under Section (18) / (19)
Date of first hearing : 17th April 2017
Date of first order : 17th April 2017
Date of second hearing : 9th June 2017
Date of second order : 9th June 2017
Date of third hearing : 21st August 2017
Date of final order : 1st September 2017
Name of the Complainant / : SHRI AMITAVA CHOUDHURY
Appellant
Name of the Public : CENTRAL PUBLIC INFORMATION OFFICER,
Authority/Respondent DEPARTMENT OF FINANCIAL SERVICES
SHRI MANISH KUMAR, CPIO (IR) & (ESH),
ROOM NO. 6-A, JEEVANDEEP BUILDING,
PARLIAMENT STREET, NEW DELHI-110001
RTI Application filed on : 04/09/2015
CPIO replied on : 15/10/2015
First Appeal filed on : 09/06/2016
First Appellate Authority order on : __
Complaint received on : 13/06/2016
Attendance during the hearing on 17.4.2017.
The Complainant was present at the NIC Studio, Howrah.
No one was present on behalf of the Respondents.
Attendance during the hearing on 9.6.2017.
The Complainant was present at the NIC Studio, Howrah.
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On behalf of the Respondents, the following were present in person:-
1. Shri Janatosh Roy, Under Secretary and CPIO.
2. Shri Mantosh Kumar Ojha, ASO.
Attendance during the hearing on 21.8.2017.
The Complainant was present at the NIC Studio, Howrah.
On behalf of the Respondents, the following were present:-
1. Shri Vijay Malhotra, former CPIO of The Department of Financial Services.
2. Shri J. Roy, CPIO, DOFS.
3. Shri Sanjay Mishra, SO, DOFS.
Information Commissioner : Shri Sharat Sabharwal
Information sought
This matter concerns an RTI application filed by the Complainant, seeking information on eight points regarding the advertisement published on 26.2.2015 for the appointment of MDs & CEOs of different nationalised banks and related issues. The CPIO reply The CPIO stated that the information sought at point Nos. 1 & 2 was in the form of opinion and it could not be considered as "information" as defined under section 2 (f) of the RTI Act. Regarding point Nos. 3 & 4, he stated: "Does not arise." The CPIO denied the information on point Nos. 5 to 8 under section 8 (1) (i) of the RTI Act. Grounds of the First Appeal Not satisfied with the CPIO's reply.
2 Order of the First Appellate Authority No order passed.
Grounds of complaint to the CIC Information sought not provided.
Relevant facts emerging during the Hearing, Discussion and Decision Hearing on 17.4.2017 The Respondents were absent in spite of a written notice having been sent to them. The Complainant stated that he sent his written submissions dated 8.4.2017 to the Commission. These have been received from the Registry subsequent to the hearing of this matter today and have been taken on record. The complainant also questioned the decision of the CPIO to deny all the information on one ground or the other. He stated that the information on the first two points of the RTI application was denied on the ground that it sought opinion of the CPIO. The information on points No. 3 and 4 was also denied. The information on the remaining points was denied under Section 8 (1) (i) of the RTI Act, ignoring the fact that as per the above section, decisions of Council of Ministers, the reasons thereof and the material on the basis of which the decisions were taken shall be made public after the decision has been taken and the matter is complete or over. He alleged irregularities in the selection process of MDs and CEOs of different nationalised banks and stated that since these functionaries deal with large sums of public money, disclosure of the information sought by him is a matter of larger public interest.
2. The absence of the Respondents has forced us to adjourn the hearing of this matter. It shall be taken up again on 9th May 2017 at 11.00 a.m. The Respondents should depute a sufficiently senior officer to explain their case during the next hearing on 9.5.2017. The venue for appearance for the Complainant and the Respondents will be as follows:-
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For the Complainant NIC Video Conferencing Studio, District Centre, Room No. 17, 4th Floor, New Collectorate Building, Howrah - 711101 (West Bengal) (Contact Officer: Shri Sampa Das (Scientist-D), Contact No. 033 -26411224 / 26373992) For the Respondents Room No. 305, 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi - 110066 Hearing on 9.6.2017
3. The matter came up again today. The Respondents stated that the Complainant had filed his appeal to the FAA after a gap of more than five months after the receipt of the CPIO's reply dated 15.10.2015 by him on 19.11.2015. The FAA disposed of this appeal vide order dated 19.7.2016, stating that the appeal could not be accepted because of the above reason. He also noted that the CPIO had duly replied to the RTI application of the Complainant and that the information in respect of points No. 5 to 8 could not be provided as the matter was sub-judice in the Supreme Court in W. P. (C) No. 225 of 2015. The Respondents also stated that when the CPIO gave his reply on 15.10.2015, the process of appointment had not been completed and since the documents concerning the appointments were cabinet papers, the information could not have been provided in the light of Section 8 (1) (i) of the RTI Act. They further submitted that because of the pending petition in the Supreme Court, the process of 4 appointments was concluded only four to five months ago and, therefore, the exemption from disclosure under Section 8 (1) (i) continued to operate. The Complainant stated that the CPIO's reply, though dated 15.10.2015, was sent to him much later and was received by him only in November 2015. He believes that the CPIO backdated his reply. The Complainant also stated that the Respondents are wrong in saying that the process of appointments was completed only a few months ago. It was completed much earlier and he has copies of two appointment letters dated 14.8.2015 in respect of certain appointments, which show that the process had been completed by then and the exemption under Section 8 (1) (i) was no more operative. He has sent us copies of the orders dated 14.8.2015 regarding appointment of the MDs and CEOs of Bank of Baroda and Canara Bank, which were obtained by him through an RTI application.
4. We have considered the submissions of both the parties and note that the matter before us is a complaint registered under Section 18 of the RTI Act. In this connection, we further note that in his letter dated 9.6.2016 to the Commission, the Complainant had cited, inter alia, Section 18 (1) of the RTI Act which deals with complaints to the Commission. The Complainant stated that he had also filed an appeal, but was unable to provide us the registration number of such an appeal in spite of our repeatedly asking him to do so. In so far as complaints filed to the Commission are concerned, we note the following observations of the High Court of Delhi in its judgment dated 28.10.2013 in J. K. Mittal vs. Central Information Commission & Anr. [W.P.(C) No. 6755/2012]:-
5 "5. In view of the above referred authoritative pronouncement of the Apex Court, there can be no dispute that while considering a complaint made under Section 18 of the Act, the Commission cannot direct the concerned CPIO to provide the information which the complainant had sought from him. Such a power can only be exercised when a Second Appeal in terms of Sub-section (3) of Section 19 is preferred before the Commissioner."
5. In the light of the foregoing, we are not in a position to direct the Respondents to provide any information to the Complainant. However, we would like to consider the aspect of penal action, if any, against the CPIO under Section 20 of the RTI Act. On perusal of the RTI application, we note that the queries at Sl. No. 1 to 4 were in the nature of seeking the opinion of the CPIO on whether the advertisement published on 26.2.2015 was as per the provisions of certain acts / scheme and the reasons for deviating from the said act and scheme. Thus, queries No. 3 and 4 were based on the assumption that there were deviations and the CPIO was called upon to explain the same. In view of the foregoing, we see no ground to fault the decision of the CPIO not to provide any information on the above points. He claimed exemption from disclosure of information on points No. 5 to 8 under Section 8 (1) (i) of the RTI Act and, in the light of the contradictory submissions made by both the parties, there is lack of clarity on whether this Section was applicable when the replies of the CPIO and the FAA were sent to the Complainant. The appointment orders of August 2015, copies of which have been sent by the Complainant to the Commission, tend to indicate that the appointment process had been completed by then. In the light of the foregoing, the matter is adjourned to be heard again on 21st July 2017 at 10.45 a.m. The CPIO is directed to file a report to the Commission, with a copy to the 6 Complainant, giving the timelines of the appointments, starting with the advertisement (s) and the subsequent stages and ending with the dates on which the appointments were made in various banks. The report of the CPIO should also indicate the date on which the above mentioned writ petition was filed in the Supreme Court and whether there was any stay granted by the Supreme Court (along with its date) in respect of the appointment process or any express order by any other court of law / tribunal, forbidding disclosure of information concerning the appointments process. The above report of the CPIO should reach the Commission at least two weeks before the next hearing on 21.7.2017. The CPIO should also forward to the Commission, with a copy to the Complainant, a copy of the relevant page of the dispatch register, showing the date of dispatch of the reply dated 15.10.2015. Shri J. Roy, Under Secretary and CPIO should be present at the next hearing on 21.7.2017 along with Shri Vijay Malhotra, former CPIO, who sent the reply dated 15.10.2015. The venue for the hearing on 21.7.2017 will be as follows:-
For the Complainant NIC Video Conferencing Studio, District Centre, Room No. 17, 4th Floor, New Collectorate Building, Howrah - 711101 (West Bengal) (Contact Officer: Shri Sampa Das (Scientist-D), Contact No. 033 -26411224 / 26373992) For the Respondents Room No. 305, 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi - 110066 7 Hearing on 21.8.2017
6. The hearing scheduled to be held on 21.7.2017 was postponed and took place on 21.8.2017. In keeping with the Commission's directions in paragraph 5 above, the CPIO has filed his report dated 14.7.2017, with a copy to Shri Amitava Choudhury, in which he has stated that the process of appointments started with an advertisement issued on 26.2.2015 and the last selected candidate, MD and CEO of Canara Bank joined duty on 11.9.2015. He has also stated that the writ petition No. 225 / 2015 - K. D. Khera vs. Union of India came up before the Supreme Court for the first hearing on 5.5.2015 and the Court issued its order in the above case, plus two more cases which were clubbed with it, on 23.9.2016. The representatives of the Respondents submitted that the above petitions were against the decision of the Government to invite applications from candidates in the open market besides those working in public sector banks. The earlier practice was to invite applications only from candidates working in public sector banks. The Supreme Court dismissed the petitions. According to the CPIO, the matter was sub-judice in the Supreme Court when the RTI application was filed on 4.9.2015. He states that the issue was not limited to whether the appointment process approved by the ACC was over or not. It has larger ramifications as the matter relating to disclosure of such information is pending before a Division Bench of the Delhi High Court. In this connection, the CPIO has referred to the decision dated 12.7.2010 of the Division Bench of the High Court, which stayed the order dated 30.11.2009 of a Single Member Bench upholding the decision No. CIC/WB/A/2008/00081 dated 1.2.2008 of the Commission pertaining to disclosure of certain file / records of ACC. In the above context, the CPIO has also 8 referred to the Commission order No. CIC/SS/A/2014/000125 dated 25.4.2016 in which the Commission has directed that since the matter relating to disclosure of ACC notes is sub-judice in the High Court of Delhi, it be kept in abeyance till the decision of the Division Bench of the High Court. On the issue of late receipt of the CPIO's reply by the information seeker, the CPIO states that as per the dispatch register (a copy of the relevant page has been enclosed) the reply was sent to the dispatch section of the Department on 15.10.2015. However, the Department was in the process of implementing various schemes and the resources of the Department were deployed in that process. Therefore, it is possible that the reply was sent on a later date. However, there was no attempt to backdate reply.
7. Shri Amitava Choudhury stated that the information was denied under Section 8 (1) (i) of the RTI Act and the plea of the above mentioned stay granted by the High Court was not taken by the CPIO or the FAA. Those appointed as a result of the selection process are already working and it is clear that the process was over when he sought information. He prayed again that he be provided the information sought by him and this matter be treated as an appeal under Section 19 of the RTI Act. DISCUSSION AND DECISION
8. In so far as the issue of late receipt of the CPIO's reply is concerned, the CPIO has himself admitted that the reply might have got delayed in the dispatch section of the Respondents. In this context, we direct the public authority to issue instructions to the dispatch section to ensure priority dispatch of replies to RTI applications so that such delays do not occur in future. The CPIO is directed to ensure the issuance 9 of such instructions, within twenty days of the receipt of this order, under intimation to the Commission.
9. As regards penal action against the CPIO, it is noted that the decision of the Government to invite applications from the open market for the selection process in question was under challenge before the Supreme Court from at least May 2015 to September 2016. Shri Amitava Choudhury has brought to the notice of the Commission two notifications dated 14.8.2015 of the Ministry of Finance, DOFS regarding appointments of MDs and CEOs of Bank of Baroda and Canara Bank, to establish that the selection process was over by August 2015. However, it is noted that in both the notifications, it was mentioned that the appointments were subject to outcome of writ petition (C) No. 225 of 2015 in the Supreme Court in the matter of K. D. Khera vs. UOI & Ors. From the above, it is clear that the matter had not attained finality and the appointments were subject to the decision of the Supreme Court. In this context, we note the following observations made by the High Court of Delhi in its judgment dated 3.12.2007 in Bhagat Singh vs Chief Information Commissioner & Ors. [W.P.(C) No. 3114 / 2007]:-
"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."10
In the light of the foregoing, it cannot be concluded that there was no ground whatsoever for the Respondents to invoke Section 8 (1) (i) of the RTI Act or that the CPIO denied the information on points No. 5 to 8 out of a malafide intent. Therefore, we do not regard it as a fit case for penal action against the CPIO.
10. As for disclosure of information, sought at points No. 5 to 8 of the RTI application, with reference to paragraph 4 above, Shri Amitava Choudhury has stated in a communication to the Commission that though initially he had made a complaint under Section 18 (1), but after receiving a letter from the CIC, the formalities as per Section 19 (3) were complied with by way of filing of an appeal under Section 19 (1) to the FAA and he also received a reply from the FAA, (referred to in paragraph 3 above). On perusal of the records concerning this matter, it is seen that on receipt of a complaint dated 9.11.2015 from Shri Amitava Choudhury, the Commission responded on 2.5.2016, referring to his "second appeal" and asking him to forward, inter alia, self attested copy of the appeal to the First Appellate Authority and of the reply, if any, received from the FAA. At this point, Shri Amitava Choudhury filed the above mentioned appeal dated 9.6.2016 to the FAA. He wants the information sought by him at points No. 5 to 8. In many cases, it has come to the notice of the Commission that not knowing the distinction between the action admissible under Sections 18 and 19, the applicants file complaints under Section 18, even though they desire the Commission to give a direction for disclosure of the information sought by them. In this case, it is clear that Shri Amitava Choudhary did file an appeal to the FAA. Though the FAA refused to accept the appeal, he gave the additional ground of 11 pendency of the writ petition before the Supreme Court for denial of information. Therefore, we would not like to deprive Shri Amitava Choudhury of the opportunity of seeking a direction from the Commission to the Respondents for disclosure of such information, as may be admissible under the RTI Act, because of mere technical reasons. Accordingly, in the light of the new facts placed before us, we have decided to treat this matter, arising from the RTI application dated 4.9.2015 of Shri Amitava Choudhury (henceforth referred to as Appellant), as an appeal under Section 19.
11. Section 8 (1) (i) exempts from disclosure Cabinet papers, including records of deliberations of the Council of Ministers, Secretaries and other officers, but provides that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken and the matter is complete, or over. The Supreme Court having disposed of the writ petition No. 225 / 2015 on 23.9.2016, there is now no doubt whatsoever that the matter has attained finality and is complete. Therefore, in our view, there is no ground for denial of the information sought at points No. 5 to 8 in the RTI application dated 4.9.2015. However, the Respondents have referred to the stay granted by a Division Bench of the High Court of Delhi vide order dated 12.7.2010 mentioned above. It is noted from a subsequent order dated 15.3.2017 of the Division Bench that four other cases (LPA 436/ 2014, LPA 568/2014, LPA 569/2014 and LPA 570 / 2014), in which Single member Benches of the Court had directed disclosure of papers related to ACC decisions, have also been clubbed for hearing with the case UOI vs. P. K. Khandelwal in which stay was given on 12.7.2010. In the light of the foregoing and to avoid multiplicity of litigation, the matter concerning disclosure of 12 information in response to points No. 5 to 8 of the RTI application dated 4.9.2015 is adjourned sine-die. The Appellant shall be at liberty to agitate the matter again after the Division Bench of the High Court of Delhi has taken a decision in the above cases.
12. Copies of this order be given free of cost to the parties.
Sd/-
(Sharat Sabharwal) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Vijay Bhalla) Deputy Registrar 13 Copy to:
Complainant / Appellant:
SHRI AMITAVA CHOUDHURY 2 C, GEETANJALI APARTMENT, RAMCHARAN SETT ROAD, RAMRAJATALA, HOWRAH, W.B.-711104 14