Central Information Commission
Sarvjit Singh vs Ministry Of Health & Family Welfare on 7 January, 2020
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/MH&FW/A/2018/135237-BJ
Mr. Sarvjit Singh
....अपीलकता/Appellant
VERSUS
बनाम
CPIO and Registrar,
Ministry of Health & Family Welfare
Post Graduate Institute of Medical Education and Research
Dr. RML Hospital, New Delhi - 110001
... ितवादीगण /Respondent
Date of Hearing : 06.01.2020
Date of Decision : 07.01.2020
Date of RTI application 12.02.2018
CPIO's response 28.02.2018/
11.04.2018
Date of the First Appeal 06.04.2018
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 05.06.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 05 points in regard to the certified copies of the Service Book updated till date of his deceased wife Dr Anju B Singh, Associate Professor, certified copy of all the noting sheets and correspondence pages which carried the minutes/observations/markings recorded by officials of the PGIMER/Dr. RML Hospital and other related issues thereto.
The CPIO, PGIMER, Dr RML Hospital, New Delhi vide its letter dated 28.02.2018 while transferring point v of the RTI application to the PAO, Dr. RML Hospital stated that the file and service book pertaining to Late Dr Anju B Singh, Associate Professor (Burns and Plastics) was pending with the Audit Team of CAG of India hence the institute was unable to provide the information. Dissatisfied with the response of the CPIO, the Appellant approached the FAA. However, subsequently, the CPIO and Sr. AO, PGIMER, Dr RML Hospital, New Delhi vide its letter dated 11.04.2018 requested the Appellant to deposit Rs. 300/- for providing certified copy of the file and service book of Late Dr Anju B Singh, Associate Professor (Burns and Plastics) to the Appellant. The order of the FAA, if any, is not on record of the Commission.Page 1 of 7
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Sarvjit Singh;
Respondent: Mr. Arvind Kumar, Registrar, ABVIMS and Ms. Lalita Maini, Sr. AO, ABVIMS;
The Appellant reiterated the contents of the RTI application and stated that although he had received information at this stage there was a palpable delay in providing the same since the information could have been collected by the Respondent from the Audit Department which was functioning from the same premise. He further submitted that the CPIO could have either transferred the application to the Audit Team or called for the files and records for furnishing the information but instead they tried to dispose off the application without supplying information by taking cover of ongoing audit. In support of his contention, the Appellant referred to the decision of the Hon'ble High Court of Delhi in Shri Vivek Mittal vs. B. P. Srivastava in W. P. (C) 19122/2006 which was referred to in the order of the Commission in the matter of T. Ganeshamoorthi vs. CPIO, DCIT, OSD (ITA-I). He also submitted that Shri Arvind Kumar, Registrar was the CPIO who had received the application and had replied on 28.02.2018 and the Act imposed duties on him being a deemed CPIO. In this context, he referred to the decision of the Commission in Ms. R. P. Aswathy vs. Girls Battalion NCC, Coimbatore in case No. CIC/SS/C/2013/900594/SD dated 23.06.2017. He therefore prayed for imposition of penalty against the erring officials. In its reply, the Respondent reiterated the reply of the CPIO / FAA as also their written submission and submitted that the delay which had occurred in providing the information was unintentional since the various correspondences referred to in their written submission clearly showed that the file and Service Book of Late Dr Anju B Singh were taken away by the Audit Team at the time of Audit in the Institute. Moreover, it was also clarified that uncertified copies of the service book and personal file were inadvertently sent to the Appellant earlier which was rectified and certified copies provided to the Appellant on 05.06.2018 without any extra charges. The First Appeal was also decided vide order dated 29.05.2018 wherein an opportunity of hearing was also provided to the Appellant which he did not avail. It was argued that the plea taken by the Appellant was nuanced to suit his convenience by playing with words whereas the Service Book was not held by them and invariably wherever terminal benefits were to be accorded to any employee, the Service Book was scrutinized by the Audit for its satisfaction and certification.
The Commission was in receipt of a written submission from the Appellant during the hearing wherein it was inter alia stated that no action was taken to furnish information to him despite reminders dated 15.03.2018, 16.04.2018, 01.05.2018 and 18.05.2018 which reflected on his callous attitude towards the statutory duty. In support of his contention, the Appellant referred to the decision of the Hon'ble High Court of Delhi in Shri Vivek Mittal vs. B. P. Srivastava in W. P. (C ) 19122/2006 which was referred to in the order of the Commission in the matter of T. Ganeshamoorthi vs. CPIO, DCIT, OSD (ITA-I). Thus he submitted that had the CPIO been sincere about the discharge of their duty under the Act, they could have either transferred the application to the Audit Team or called for the files and records for furnishing the information but instead they tried to dispose off the application without supplying information by taking cover of ongoing audit. Furthermore, the Audit Team during audit was stationed only in the same building as the CPIO's and that they could have very well called records for providing information. Thus he stated there was no reasonable cause in not complying with the time frame under Section 7 (1) of the RTI Act, 2005. The Appellant prayed for imposition of penalty Page 2 of 7 against the CPIO. He also submitted that Shri Arvind Kumar, Registrar was the CPIO who had received the application and had replied on 28.02.2018 and the Act imposed duties on him being a deemed CPIO. In this context, he referred to the decision of the Commission in Ms. R. P. Aswathy vs. Girls Battalion NCC, Coimbatore in case No. CIC/SS/C/2013/900594/SD dated 23.06.2017. Hence the consequences of failure to comply with the provisions of the Act also fell upon Shri Arvind Kumar.
The Commission was also in receipt of a written submission from the Respondent dated 01.01.2020 wherein it was stated that the file and service book of Late Dr. Anju B Singh was handed over to the audit team on 16.02.2018. While referring to Point No 4 of the letter dated 08.05.2018 of the O/o the DG of Audit addressed to Shri Sarvjit Singh, wherein on a query of Shri Sarvjit Singh, O/o the DG had replied that all the requisitioned records were returned to the audited entity on the completion of scrutiny. The Audit Party vide letter dated 09.05.2019 had raised an Audit Memo seeking some information about Late Dr Anju B Singh from the institute. The reply to the same was sent to the Audit on 26.05.2019. All the above clearly showed that the file and Service Book of Late Dr Anju B Singh were taken away by the Audit Team at the time of Audit in the Institute. In respect of the complaint of the Appellant it was clarified that inadvertently uncertified copy of the service book and personal file were sent to the Appellant on 04.05.2018 and on the request of the Appellant, the certified copies were sent to him on 05.06.2018 without any extra charges which was received personally by the Appellant. The First Appeal was also disposed by the FAA vide order dated 29.05.2018 as the Appellant had refused to appear before the FAA. In view of the above it was prayed to dismiss the Appeal.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(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 ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."Page 3 of 7
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
The Commission observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."Page 4 of 7
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
With regard to the imposition of penalty on the CPIO/PIO under Section 20 of the RTI Act, 2005, the Commission took note of the ruling of Hon'ble Delhi High Court in W.P.(C) 11271/2009 Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. (delivered on:
01.06.2012) wherein it was held:
" 61. Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. It can happen that the PIO may genuinely and bonafidely entertain the belief Page 5 of 7 and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a showcause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to ful fill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute."
Similarly, the following observation of the Hon'ble Delhi High Court in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 are pertinent in this matter:
"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."
Furthermore, the High Court of Delhi in the decision of Col. Rajendra Singh v. Central Information Commission and Anr. WP (C) 5469 of 2008 dated 20.03.2009 had held as under:
"Section 20, no doubt empowers the CIC to take penal action and direct payment of such compensation or penalty as is warranted. Yet the Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely.
......The preceding discussion shows that at least in the opinion of this Court, there are no allegations to establish that the information was withheld malafide or unduly delayed so as to lead to an inference that petitioner was responsible for unreasonably withholding it."
The Complainant could not substantiate his claims regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause. A similar matter was heard and adjudicated by the Commission in CIC/DRMLD/A/2018/117116-BJ dated 03.10.2019.
Page 6 of 7DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above, no further intervention of the Commission is required in the matter. For redressal of his grievance, the Appellant is advised to approach an appropriate forum.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का) (Information Commissioner) (सूचना आयु ) Authenticated true copy (अ भ मा णत स या पत त) (K.L. Das) (के .एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 07.01.2020 Page 7 of 7