Central Information Commission
Gopal Krishan Gupta vs Indian Air Force on 29 September, 2023
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: CIC/IAIRF/A/2022/124723+
CIC/IAIRF/C/2022/140774
In the matter of
Gopal Krishan Gupta
... Appellant/ Complainant
VS
1. CPIO
Directorate of Personal Services,
Indian Air Force
Air Head Quarters (Vayu Bhawan)
Rafi Marg, New Delhi110011
2. CPIO
HQ South Western Air Command (SWAC),
Indian Air Force
Vayu Shakti Nagar Lekhawada,
Gandhinagar382042
3. CPIO
Department of JAG (Air),
Air Head Quarters, Vayu Bhawan
Rafi Marg, New Delhi - 110011
... Respondent
File No. : 124723 140774
RTI application filed on : 07/02/2022 07/02/2022
CPIO replied on : 07/03/2022 07/03/2022
First appeal filed on : 19/03/2022 19/03/2022
First Appellate Authority order : Not on record 22/06/2022
Second Appeal/Complaint filed on : 21/05/2022 21/08/2022
Date of Hearing : 28/02/2023, 28/02/2023,
25/09/2023 25/09/2023
Date of Decision 28/02/2023 28/02/2023
29/09/2023 29/09/2023
The following were present:
Appellant/ Complainant: Present over VC
1
Respondent: Wing Commander M.K Singh, CPIO 1;
Wing Commander Sandeep Sharma, CPIO 2;
Wing Commander U.N Pathak, CPIO 3
Information Sought:
The appellant/complainant has sought the following information:
a. Provide the complete status and action, if any, taken by the competent
authorities concerned on the representation/appeal dated 31/08/2021 and its
reminder dated 08/11/2021 preferred by the applicant before the Chief of Air
Staff.
b. Provide the complete status and action, if any taken by the competent
authorities concerned on the application dated 19/01/2022, preferred by the
applicant before the Chief of Air Staff.
c. Provide the copies of all the correspondence made in respect of the
representation/appeal dated 31/08/2021, its reminder dated 08/11/2021 and
application dated 19/01/2022 made before the Chief of Air Staff.
d. And other related information.
Grounds for Second Appeal / Complaint
The CPIO did not provide the desired information.
Submissions made by Appellant / Complainant and Respondent during
Hearing:
The appellant submitted that he had not received the written submissions of
the CPIO.
The CPIO vide written submissions dated 23rd February, 2023 submitted that
on 07.03.2022 a suitable reply was provided to the appellant. Furthermore, the
FAA had disposed of the first appeal vide a speaking order on 22.06.2022.
He further submitted that there is no record of receipt of the representation
dated 31 Aug 21 and its reminder dated 08 Nov 21 mentioned in Para 5(a) of
the RTI application and therefore, the requested information was not available
on record.
Observations:
The Commission observed that on 07.03.2022 the CPIO replied on points no.
(a) to (e) that parawise comments on his representation/appeal had been
sought from HQ SWAC lAF. On receipt of the same, the representation would
be processed further by the competent authority for consideration. In respect
of point no. (f) it was replied that comments were sought from Department of
JAG (AIR).
2
The FAA vide order dated 22.06.2022 disposed of the appeal and held that the
CPIO in his reply had provided the present status of the representation/appeal
which was forwarded by the appellant to Chief of Air Staff. Further, on perusal
of the appeal it was noted that status of the representation dated 19.01.2022
was intimated to the appellant on 13.04.2022.
The reply dated 13.04.2022 provided by Group Captain KK Sharma, JT JAG (Air)
was examined which stated that on scrutiny of the record available at their HQ,
the copy of dismissal order circulated vide SWAC/C/ 3420/4/P1 dated
16.10.2003 was not found available since the case is more than 18 years old.
The representation dated 19.01.2022 was disposed of accordingly.
He further submitted that points no. (a) to (e) is covered in the above reply
dated 13.04.2022.
The appellant contended that action taken was not provided. The CPIO
clarified that the custodian had informed that the case is more than 18 years
old and information sought was not available.
The CPIO however agreed to provide the internal communications also which
was made with SWAC in this regard.
The appellant then requested for a copy of the JAG comments, to which he
was informed that the same was not asked for in his RTI application.
In respect of point no. (f) name and designation can be given if not exempted.
A written submission dated 20.02.2023 was received from the CPIO, SWAC
where it was stated that they had not received any RTI application. The fact is
that no final point-wise reply was provided on any of the points to the
appellant as per the record.
Decision:
In view of the same, the CPIO is directed to provide a final consolidated reply
on all the points as provided by the concerned custodians within 7 days from
the date of receipt of this order.
The appeals are disposed of accordingly.
Note: The Appellant/ Complainant approached the Hon'ble High Court of
Punjab and Haryana with a prayer to set aside the order of the Commission
dated 28.02.2023 on the ground that the appeals have been disposed off
without any final adjudication of the matter.
3
The Hon'ble High Court of Punjab and Haryana vide order in CWP No 15500-
2023 decided on 21.07.2023 and held as under:
"9. A conjoint reading of the above reproduced provisions would show
that once a second appeal has been filed by an aggrieved person, then,
after considering all the aspects, the matter is required to be finally
adjudicated. In case, the Information Commissioner is of the opinion that
the ingredients, as specified in Section 20 of the RTI Act are met,
appropriate action is also required to be taken. In the present case, after
prima facie holding in favour of the petitioner with respect to points No.
(a) and (b) and after directing the CPIO to file a revised reply, the appeals
have been disposed of by respondent No.2 without waiting for the said
reply and without finally adjudicating the matter and thus, to the said
extent, the impugned order deserves to be set aside
10. Keeping in view the above said facts and circumstances, the present
petition is partly allowed and the order dated 28.02.2023 (Annexure P-
11) to the extent that the statutory second appeal filed by the petitioner
has been disposed of, is set aside and a direction is issued to the Central
Information Commission to finally adjudicate the said appeal after taking
into consideration the final consolidated reply filed by the CPIO as
directed by the Information Commissioner in the impugned order and
after considering the pleas raised by both the parties in accordance with
law.
11. It is made clear that this Court has not opined on the merits of the
case and the concerned authority would decide the matter
independently, in accordance with law. "
Consequent upon demitting of charge of Information Commissioner Mrs
Vanaja N Sarna, reallocation of Second Appeals/ Complaints of Ministry of
Defence to Shri Y.K. Sinha, Chief Information Commissioner was notified by
the Commission on 20.06.2023. On receipt of the order of the Hon'ble High
Court of Punjab and Haryana dated 21.07.2023, the registry of this bench vide
notice dated 18.08.2023 initially listed the matter for hearing on 12.09.2023
which was later cancelled due to administrative reasons on 06.09.2023.
Thereafter, vide notice dated 12.09.2023, the matter was listed for
25.09.2023.
4
Facts emerging during the hearing on 25.09.2023
1. In compliance with the direction of the Commission dated 28.02.2023, the following reply dated 07.03.2023 was provided by the CPIO and Wing Commander, D/o Personnel Services, Air HQ, New Delhi:
a) It is informed that there is no record of receipt of your/representation / appeal dated 31 Aug 21 and its reminder dated 08 Nov 21 cited in Para 5 (a). (c). (d) & (e) of the RTI application with this public authority. Hence, the information sought in respect of this representation is not available with this public authority
(b) With regard to Para 5 (b) & (d), the status of the representation dated 19 Jan 22 was intimated to you vide Air HQ/C 23406/685/Discip dated 13 Apr 22 and the copy of the same is annexed herewith.
(c) With regard to Para 5 (c) & (e) a certified copies of all internal communications which were made with HQ SWAC in connection with your representation dated 19 Jan 22 are annexed after obliterating that part of information which is personal Information and exempted from disclosure under Section 8 (1) (j) as per Section 10 (2) (a) of the RTI Act, 2005,
(d) With regard to Para 5 (f), this public authority had sought assistance of Department of JAG (Air) under Section 5 (5) of the RT! Act in connection with your various RTI applications as mentioned vide this para. However, with regard to Name and Designation of the officer whose assistance sought, the same is 'personal information' the disclosure of which has no relationship to any public activity or interest, and it would cause unwarranted invasion of the privacy of the individual. The same is exempted under Section 8 (1) (j) of RTI Act, 2005.
2. In addition, a written submission was also received from the CPIO and Wing Commander, AIR HQ (VB), vide letter dated 04.09.2023, wherein the above reply was reiterated.
3. The Appellant participated in the hearing through video conference. He argued that certified copy of the annexed documents was not provided with the reply dated 07.03.2023. He also submitted that the reply provided was incorrect to the extent that it mentions that the representation dated 31.08.2021 and its reminder dated 08.11.2021 were not received by the public authority. During the hearing, the Appellant produced a copy of letter dated 5 26.11.2021 sent by the Dy Director AV (Audit and Accounts), D/o Air Veterans wherein the action taken on the reminder letter dated 08.11.2021 was provided which established that the reminder letter was received by the public authority. In addition, the Appellant referred to his written submission dated 25.09.2023 submitted to the Commission during the hearing, the relevant extracts of which are as under:
"Air HQ (VB), New Delhi
a) The vide Appeal/representations dated 31.08.2021, its reminder dated 08.11.2021 and application dated 19.01.2022, preferred before the Chief of Air Staff, the appellant/complainant prayed for granting certain relief and for fixation of responsibility of the erring official of the Indian Air Force because it's a mandatory duty of authority concerned to protect the rule of law and book the offenders.
b) When no reply received in respect of the above said appeal/representations/application, then along with requisite fee vide RTI application dated 07.02.2022, preferred under RTI Act, 2005 before the CPIO of Air HQ (VB), New Delhi, the complete status and action taken report of the above has been asked, in which initially, Wing Commander S.K. Ojha, CPIO HQ (VB), New Delhi vides its reply letter bearing no. Air HQ/23401/204/4/24597/E/PS dated 07.03.2022 has informed that, "Para wise comments on your representation/appeal has been sought from HQ SWAC, IAF and Dept of JAG (Air) and on receipt of the same, representation will be processed further to competent authority of consideration." A First Appeal dated 19.03.2022 has been preferred before the FAA of Air HQ (Vayu Bhawan), New Delhi, in which reply dated 23.06.2022 was received after much delay only on 30.06.2022 but reply is false and not satisfactory. For which reasons, the present appeal and complaint has been preferred before this Hon'ble Authority.
c) After passing of final orders on 28.02.2023 by Ms. Vanaja, CIC, the CPIO of Air HQ (VB), New Delhi has surprisingly took U turn from their earlier reply dated 07.03.2022 and vides their office letter no. Air HQ/99673/8/165/2022/AOA dated 07.03.2023 has falsely replied that, "It is informed that there is no _ record of receipt of your representation/appeal dated 31.08.2021 and its reminder dated 08.11.2021 cited in Para 5(a), (c), (d) & (e) of the RTI application with this public authority. Hence, the information sought in respect of this representation is not available with this public authority."6
d) The proof of receipt of representation/appeal dated 31.08.2021 and its reminder dated 08.11.2021 by the Air HO (VB) New Delhi cited in Para 5(a), (c), (d) & (e) of the RTI application dated 07.02.2022 is annexed herewith, which clearly falsifying their reply and further which confirmed that, the desired information's has been withheld intentionally and deliberately and the respondents has knowingly created a sheer mockery of the RTI Act, 2005 by creating a situation of impasse by each of their whimsical approach towards the RTI application under reference."
4. The Respondent represented by Wg. Cdr. B Mishra, CPIO, Air HQ, New Delhi and Sgt. Abhimanyu Pratap, Air HQ, New Delhi participated in the hearing through video conference. Wg. Cdr. Mishra reiterated the reply of the CPIO, Air HQ (VB) dated 07.03.2023 and stated that the earlier direction of the CIC has been suitably complied with as point wise information as per available record was provided to the Appellant. He specifically emphasized that copies of all communications between them and HQ, SWAC in connection with the representation dated 19.01.2022 was provided to the Appellant. However, no record of receipt of representation/ appeal/ reminder dated 31.08.2021 and 08.11.2021 were available with D/o Personnel Services and the response dated 26.11.2021 cited by the Appellant during the hearing was provided by another department i.e., D/o Air Veterans.
Decision
5. Keeping in view the facts of the case and the submissions made by both the parties and taking into consideration the directions of the Hon'ble High Court of Punjab and Haryana, it is clarified at the outset that the Commission herein is only examining the limited issue of compliance of the earlier order dated 28.02.2023 pronounced by its predecessor bench. The orders passed herein are final and binding upon parties as per Section 19 (7) of the RTI Act, 2005. On perusal of the records, the Commission is of the view that the earlier direction of the Commission dated 28.02.2023 has been appropriately complied with as point wise information as per available record has been provided to the Appellant.
6. As per Section 2 (j) of the RTI Act, 2005:
"(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 ........"7
7. Hon'ble Supreme Court in its judgement in CBSE & Anr vs Aditya Bandopadhyay and Ors Civil Appeal No 6454 of 2011 decided on 09.08.2011held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of `information' and `right to information' under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non- available information and then furnish it to an applicant."
8. Regarding the Complaint filed u/s 18 of the RTI Act, 2005, it is noted that in such cases, the Commission is only required to ascertain if the information has been denied with malafide intent or due to an unreasonable cause which the Commission is unable to conclude in the present instance. Hence, no further intervention of the Commission is required in the instant Complaint. With the above observations, the Second Appeal and Complaint stand disposed off accordingly.
Y. K. Sinha (वाई. के . िस हा) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) S. K. Chitkara (एस. के . िचटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 8