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Central Information Commission

Mr.K P Mishra vs Mcd, Gnct Delhi on 28 April, 2011

                     CENTRAL INFORMATION COMMISSION
                         Club Building (Near Post Office)
                       Old JNU Campus, New Delhi - 110067
                              Tel: +91-11-26161796

                                                Decision No. CIC/SG/C/2010/000999/9959Penalty
                                                          Complaint No. CIC/SG/C/2010/000999

Complainant                      :          Mr KP Mishra
                                            H. No. D-3/517
                                            Tisra Pusta, Sonia Vihar
                                            Delhi 110094

Respondent                           :      Mr. Rajesh Kumar,
                                            JE (M-II) & Deemed PIO
                                            Municipal Corporation of Delhi
                                            South Zone, MS-II,
                                            Gulmohar Park, Delhi;

Events Chronologically:
   • RTI Application               -    10/03/2010
   • No information provided by the PIO
   • Complaint                     -    25/07/2010
   • Notice                        -    28/07/2010
      - Information to be provided
        to the Complainant before -     22/08/2010
      - Copy of information &
        PIO's explanation to be sent
        to the Commission before -      01/09/2010
   • Response of the PIO
      to the Notice                 -   04/08/2010

Facts arising from the Complaint:

Mr KP Mishra had filed a RTI application with the PIO, SP Zone, on 10/03/2010. However on not having received the information within the mandated time, the Complainant filed a complaint under Section 18 of the RTI Act with the Commission. On this basis, the Commission issued a notice to the PIO & SE, SP Zone, on 28/07/2010 with a direction to provide the information to the Complainant and further sought an explanation for not furnishing the information within the mandated time.

The Commission received a letter dated 04/08/2010 from the PIO & SE, wherein it was stated that a reply to the said RTI Application was already provided to the Complainant vide letter dated 26/07/2010. On perusal of documents, it is observed that the reply dated 26/07/2010 appears to be incomplete as the PIO has failed to scrutinize the Query No. 2 of the RTI Application closely, the Complainant is clearly asking for information w.r.t. property no. 10759, which does not overlap with the previous Query No 1; therefore the answer provided to Query No. 2 appears to be inappropriate. Further, w.r.t. Query No, 3, the Commission notes that the PIO was not able to locate the said property in question, but the reply to the same was only provided after a long period on 26/07/2010; the PIO should have sought clarifications incase of any pertaining doubt from the Complainant. The Page 1 of 5 Commission further observes that there has been a delay of over 100 days in replying to the said RTI Application.

Decision dated November 1, 2010:

The Complaint was allowed.

"In view of the aforesaid the PIO & SE, is hereby directed to provide complete and correct information to the Complainant as mentioned above w.r.t. Query No 2 & 3 of the RTI Application dated 10/03/2010 to the Complainant before 20/11/2010. Proof of dispatch of information should be sent to the Commission before 25/11/2010.

Therefore, PIO & SE, SP Zone, MCD, is hereby directed to present himself before the Commission on 16/12/2010 at 2:30 pm along with his written submissions to show cause why penalty should not be imposed and disciplinary action be recommended against him under Section 20 (1) and (2) of the RTI Act. Further, the PIO may serve this notice to such person(s) who are responsible for this delay in providing the information, and direct them to be present before the Commission on the aforesaid scheduled date and time. The PIO should also bring proof of seeking assistance from other person(s), if any. The PIO is also directed to bring along a copy of the reply sent to the Complainant along with its dispatch receipts."

Relevant facts emerging at the show cause hearing held on December 16, 2010:

The following were present:

Complainant: Ms. Ritu Saluja on behalf of the Complainant;

Respondents: Mr. N. K. Gupta, PIO & SE.

"Mr. N. K. Gupta stated that further to the order of the Commission dated 01/11/2010, information in relation to queries 2 and 3 of the RTI application dated 10/03/2010 was provided to the Complainant on 11/11/2010. Information provided in relation to query 2 appeared to be satisfactory. In relation to query 3, Mr. Gupta stated that the query was ambiguous and therefore, a joint inspection may be conducted to locate the exact properties for further action. Ms. Ritu Saluja produced certain photographs before the Commission stating that the property shown therein was the property referred to in query 3 of the RTI application. However, the Commission observed that a joint inspection must be carried out in order to exactly locate the property in question and for taking further action.

Ms. Saluja initially did not cooperate inasmuch as she neither agreed to a joint inspection nor provide any dates for the said inspection. Ultimately, she agreed to a joint inspection of the concerned property on 23/12/2010 from 11:00 am onwards. Mr. Gupta confirmed the same by telephone.

Further, Mr. Gupta stated that the RTI application dated 10/03/2010 was transferred to the AE (B), who forwarded the same to Mr. Rajesh Kumar, JE (B). Mr. Rajesh Kumar, JE (B) received the RTI application on 07/04/2010 and was required to provide the information. In this regard, Mr. Gupta produced a copy of the relevant page of the dak movement register before the Commission. It appears that Mr. Rajesh Kumar, JE (B) responded to the RTI application only on 23/07/2010 i.e. beyond the prescribed time limit."

Adjunct Decision dated December 16, 2010:

"Mr. N. K. Gupta, PIO & SE is hereby directed to conduct a joint inspection of the property mentioned in query 3 of the RTI application dated 10/03/2010 with the Complainant on December 23, 2010 from 11:00 am in order to ascertain the exact location of the relevant property for further action. A joint inspection report shall be prepared that shall be signed by both parties, a copy of which shall be sent to the Commission before January 3, 2011.

Further, Mr. N. K. Gupta, PIO & SE and Mr. Rajesh Kumar, deemed PIO & JE (B) are hereby directed to appear before the Commission for a show cause hearing at the above address on January 10, 2011 at 3:30 pm. They may make oral or written submissions to the Commission on that date to show cause why penalty under Section 20(1) should not be imposed on them. They may also make oral or written submissions to the Commission on that date to show cause as to why disciplinary action under Section 20(2) of the RTI Act shall not be recommended against them.

They are directed to produce before the Commission any relevant document that they may have relied on in their written submissions. If there are other persons responsible for not providing the information sought within the prescribed time limit who have not been included in this show cause notice, they are directed to serve this show cause to them and direct them to appear before the Commission on 10/01/2011 along with them."

Relevant facts emerging at the show cause hearing held on 10 January 2011: The following were present:

Complainant: Ms. Ritu Saluja on behalf of the Complainant;

Respondents: Mr. Kishan Lal, PA to Mr. N. K.Gupta PIO & SE; Mr. S. R. Lakhan, AE(B);

"The joint inspection had been carried out with the complainant's representative and a joint inspection report has been prepared. The respondents claim that this has been sent by speed post on 04/01/2011 speed post receipt no. ED 198263580IN to the complainant's representative Ms. Ritu Saluja. The PIO is directed to give a copy of this to the representative of the Complainant Ms. Ritu Saluja before the Commission.

The Deemed PIO Mr. Rajesh Kumar, Junior Engineer(JE) has not appeared before the Commission to showcause whey penalty under Section 20(1) should not be levied on him. The Commission would like to give him one more opportunity to give reasons before the Commission on 20 January 2011 at 12.00PM"

Adjunct Decision dated 10/01/2011:

"The information has been provided to the Complainant. The Commission is giving one last chance to Mr. Rajesh Kumar, JE & Deemed PIO to appear before the Commission on 20 January 2011 at 12.00PM to showcause why penalty under Section 20(1) should not be levied on him and disciplinary action under Section 20(2) should not be recommended."

Facts leading to showcause hearing on 28/04/2011:

Mr. Rajesh Kumar did not appear on 20/01/2011 before the Commission and the Commission did not receive any written submissions from him explaining his absence. However, the then PIO & SE, SP Zone Mr. N.K. Gupta appeared in another matter before the Commission and informed that the Deemed PIO Mr. Rajesh Kumar had been transferred to South Zone, Maintenance Division.

The Commission therefore decided to schedule another hearing on 28/04/2011 at 02.30 p.m. Deemed PIO Mr. Rajesh Kumar was directed to appear before the Commission on 28/04/2011 along with his written submissions to show cause why penalty under Section 20(1) should not be levied on him and disciplinary action under Section 20(2) should not be recommended against him for not providing the information within the stipulated time and further not to comply with the Commission's order. Mr. Rajesh Kumar was directed to produce before the Commission any document he may wish to rely on in his written submissions.

Relevant facts emerging during the showcause hearing on 28/04/2011: Complainant: Absent;

Respondent: Mr. Rajesh Kumar the then JE SP Zone & Deemed PIO presently JE(M-II) South Zone, MS-II Gulmohar Park, Delhi;

During the hearing held on 16/12/2010 the then PIO/SE(SP Zone) Mr. N. K. Gupta had stated that the RTI application dated 10/03/2010 was transferred to the AE (B), who forwarded the same to Mr. Rajesh Kumar, JE (B). Mr. Rajesh Kumar, JE (B) received the RTI application on 07/04/2010 and was required to provide the information. In this regard, Mr. Gupta produced a copy of the relevant page of the dak movement register before the Commission. It appears that Mr. Rajesh Kumar, JE (B) responded to the RTI application only on 23/07/2010 i.e. beyond the prescribed time limit. The RTI application was received by Mr. Rajesh Kumar, JE(B) on 07/04/2010 and even if we assume that he could be allowed to take 30 days to provide the information he should have given the information before 07/05/2010 instead of which he gave the information on 23/07/2010 i.e. after a delay of 76 days.

The Commission asked Mr. Rajesh Kumar to explain the reasons for the delay. He states that he was not clear about what information is being sought. The Commission asked him why he did not seek clarification for whatever was not clear to him. He has no evidence to show that he asked for any clarification or help in providing the information.

Section 20 (1) of the RTI Act states, "Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty five thousand rupees;

Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:

Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be." A plain reading of Section 20 reveals that there are three circumstances where the Commission must impose penalty:

1)     Refusal to receive an application for information.
2)     Not furnishing information within the time specified under sub-section (1) of section 7 - 30
       days.
3)     Malafidely denying the request for information or knowingly giving incorrect, incomplete or

misleading information or destroying information which was the subject of the request

4) Obstructing in any manner in furnishing the information.

All the above are prefaced by the infraction, ' without reasonable cause'.

Section 19 (5) of the RTI Act has also stated that "In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request."

Thus if without reasonable cause, information is not furnished within the time specified under sub- section (1) of section 7, the Commission is dutybound to levy a penalty at the rate of rupees two hundred and fifty each day till the information is furnished. Once the Commission decides that there was no reasonable cause for delay, it has to impose the penalty at the rate specified in Section 20 (1) of the RTI Act and the law gives no discretion in the matter. The burden of proving that denial of information by the PIO was justified and reasonable is clearly on the PIO as per Section 19(5) of the RTI Act.

Mr. Rajesh Kumar the then JE SP Zone & Deemed PIO has not been able to offer any reasonable explanation for the delay in providing the information to the Complainant. The Commission therefore imposes a penalty on Mr. Rajesh Kumar as per Section-20(1) of the RTI Act for the delay of 76 days at the rate of `250/- per day of delay i.e. `250/- X 76 days = `19000/-.

Decision:

As per the provisions of Section 20 (1) RTI Act 2005, the Commission finds this a fit case for levying penalty on Mr. Rajesh Kumar the then JE (SP Zone) & Deemed PIO. Since the delay in providing the information has been of 76 days, the Commission is passing an order penalizing Mr. Rajesh Kumar `19000/-.

The Commissioner, Municipal Corporation of Delhi is directed to recover the amount of `19000/- from the salary of Mr. Rajesh Kumar 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 `4750/- per month every month from the salary of Mr. Rajesh Kumar and remitted by the 10th of every month starting from June 2011. The total amount of `19000/- will be remitted by 10th of September 2011.

Shailesh Gandhi Information Commissioner 28 April 2011 In any correspondence on this decision, mention the complete decision number.)(JA) CC: To, 1- Commissioner Municipal Corporation of Delhi Town Hall, Delhi- 110006

2. Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi - 110066 Page 5 of 5