Central Information Commission
Pawan Kumar vs Ministry Of Defence on 9 March, 2017
CENTRAL INFORMATION COMMISSION
Club building, Opposite Ber Sarai Market, Old JNU Campus, New Delhi-
110067.
Tel: 011 - 26182593/26182594
Email: [email protected]
File No : CIC/LS/C/2012/000962-AB
Sh. Pawan Kumar, R/O, A-23, Sector-71, Noida,
(UP) - 201301. ...Appellant
Vs.
CPIO, CAO (P & Legal), CAO's office, MOD, GOI, E block,
O/o JS (T), Dalhousie road, New Delhi. ....Respondent
Dates
• RTI Application = 07.04.2012
• CPIO's response = 17.04.2012
• First Appeal = nil
• FAA's response = nil
• Second Appeal = 07.06.2012
• Date of Hearing = 27.04.2016
Facts:
Information sought:
On the appointed date and time, Cdr. IN Awasthi with Lt. Vikrant Singh (AJA) were present. The appellant was not present despite valid and timely notice.
This a complaint u/s 18(1) (c). It was observed from the perusal of records that the RTI Application dated 07.04.2012 was transferred by Dy. CAO (Pers. & legal) & CPIO, MOD to DOA (CIV) under intimation to the applicant.
1This transfer was duly notified to the applicant who signed receipt of such document dated 23.04.12. A copy of such document is on record. After this transfer the CPIO (Navy) vides communication dated 25.4.12 informed the applicant that the information did not pertain to Navy. No final reply was sent to the applicant. It is surprising that instead of giving a final reply to the applicant the CPIO (Navy) choose to give an interim reply to the applicant & choose not to perceive the matter to its logical conclusion i.e. till the final reply was sent to the applicant.
Show Cause notice is directed to be issued to CPIO (Navy) for not given proper response within the time limit as prescribed under the RTI Act. After the receipt of the reply to the notice, further action as deemed appropriate will be taken.
Adjunct Decision:
The present CPIO, I N Awasthi Cdr-At-Arms submitted his written explanation in response to the show cause notice on 06.06.2016 as under:
"(a) RTI application dated 07 Apr 12 was preferred by the applicant Shri Pawan Kumar to the CPIO, Deputy CAO, CAO's Office, E-Block, Office of JS(T) & CAO, Dalhousie Road, New Delhi (Encl I).
(b) Shri Pawan Kumar had sought information regarding the official circular of NRTO against which Shri Rahul Roy Chaudhary, Assistant, in AFHQ cadre applied. The entire information had originated from either the office of NRTO of the office of CAO.
(c) Shri Manjit Singh, CPIO & Dy CAO forwarded the RTI to DOA (Civ)/IHQ of MoD(N), A-
Block Hutments on 17 Apr 12 stating that the information pertained to DOA(Civ) and requesting that reply be made directly (Encl II). It is pertinent to mention that the application was neither transferred under Section 6(3), nor was it transferred to the concerned CPIO.
2(d) DOA(Civ), A-Block hutments forwarded the RTI to PIO(N) on 18 Apr 12 (Encl III). The then PIO (N), Capt-At-Arms SK Gupta replied to the applicant on 25 Apr 12 stating that the information did not pertain to IHQ MoD(N).
(e) Hence, at the outset question of violation of Section 7(1) does not arise since the applicant was duly replied to within the stipulated time period of 30 days.
(f) Further, the reply by the then PIO(N) was the full and final reply by IHQ MoD(N), since it was clearly intimated that the information did not pertain to IHQ MoD(N).
(g) DoP&T order No. F 10/2/2008/IR dated 24 Sep 10 also stipulates that the PIO is not required to transfer the application to other public authorities. Also, from the application it was evident that the same pertained to NTRO and CAO. "
The then CPIO Navy, S K Gupta, Commodore-At-Arms, PIO (HQSNC) sent his written explanation on 09.08.2016 in response to the show cause notice where he submitted as under:
"(a) RTI application dated 07 Apr 12 was preferred by the applicant Shri Pawan Kumar to the CPIO, Deputy CAO, CAO's Office, E-Block, Office of JS(T) & CAO, Dalhousie Road, New Delhi (Encl I).
(b) Shri Pawan Kumar had sought information regarding the official circular of NTRO against which Shri Rahul Roy Chaudhary, Assistant, in AFHQ cadre applied.
The entire information had originated from either the office of NTRO of the office of CAO.
(c) DOA (Civ), A-Block Hutments forwarded the RTI to PIO (N) on 18 Apr 12. The undersigned replied to the applicant on 25 Apr 12 stating that the information did not pertain to IHQ MoD (N). This was made in pursuant to the provisions of the Act ie Public Authority is required to provide information which is held in material form subject to exemptions as provide under Section 8 of the Act. The information can not be created by the Public Authority.
(d) Hence, at the outset question of violation of Section 7 (1) does not arise since the applicant was duly replied to within the stipulated time period of 30 days.
(e) Further, the reply by the then PIO (N) was the complete and final reply by IHQ MoD(N) . Since it was clearly intimated that the information did not pertain to IHQ MoD(N).
(f) Dop&T order No F 10/2/2008/IR dated 24 Sep 10 also stipulates that the PIO is not required to transfer the application it was evident that the same pertained to NTRO and CAO."
3The Commission examine the above explanation of the then CPIO S K Gupta, Commodore-At-Arms, PIO (HQSNC), and consider it not acceptable. Therefore, he is directed to present before the Commission on 25 Nov 2016 at 3.00 pm to explain why penalty should not be imposed on him u/s 20(1) of the RTI Act.
FINAL ORDER (25.11.2016):
The respondent S. K. Gupta (Commodre-At-Arms) the then CPIO was present before the Commission on 25.11.2016 at 3.00 pm through VC and requested for withdrawal of showcause notice. It is relevant to note that no relevant explanation was forwarded by him. He simply reiterated his explanation dated 09.08.2016.
The Commission does not agree with the CPIO's submission. He was duty bound to transfer the RTI application to the concerned CPIO, NTRO to enable the applicant to get the requisite information. There was complete dereliction of duty by the then CPIO under the RTI Act. The CPIO's action amounts to obstruction of information which should attract penal action u/s 20 of the RTI Act.
In the matter of Prem Lata Vs. Central Information commission & Ors [W.P (c) No. 2458/2012], the Hon'ble Delhi High Court while interpreting the provision of Section 20 of RTI Act had observed as follows:
"25. The submission of the petitioner that the CIC cannot impose penalty under Section 20 (1) of the Act without recording a finding as to the malafides on the part of the CPIO is entirely misconceived and untenable..................
26. Therefore for the CIC to impose penalty under Section 20 (1) of the Act it has to be of the opinion that the CPIO has, without any reasonable cause,:
(i) refused to receive an application for information; or
(ii) not furnished information within the time specified under subsection (1) of section 7; or
(iii) malafidely denied the request for information; or
(iv) knowingly given incorrect, incomplete or misleading information; or
(v) destroyed information which was the subject of the request; or
(vi) Obstructed in any manner in furnishing the information.
The use of the word or repeatedly in section 20 shows that the various situations/contingencies dealt with in section 20 are disjunctive. The PIO concerned would invite penalties under section 20 of the Act upon the occurrence of any of the contingencies mentioned herein above. A recording that the CPIO has acted 4 malafidely in denying the request for information is not the sole criterion for imposing penalty. The CIC by the impugned order dated 07.02.2012 has imposed penalty since the petitioner has, without any reasonable cause, not furnished the information within the time specified under subsection (1) of Section 7."
In the light of the above decision it is settled that the obstruction of information under the RTI Act is also a criteria which may attract penalty under the same Act.
Sec 6(3) of the RTI Act mandatorily requires the Public authority to transfer the RTI application or part there of to the concerned public authority within 5 days from the date of receipt of the application. The then CPIO Cdr S.K. Gupta had not submitted any cogent reason for not forwarding the said RTI application to CPIO, NTRO who was the holder of the information sought for in the said RTI application. It is a serious lapse and without doubt it did amount to obstruction of information under the RTI Act.
The CPIO was given ample opportunity to explain the circumstances leading to such obstruction of information under the RTI Act but he was unable to furnish valid reason for committing such lapse. Due to non transfer of the said RTI application, the applicant was deprived of the information sought for validly under the RTI Act. The CPIO was under a legal duty to transfer the RTI application to the concerned CPIO u/s 6(3) of the RTI Act. This duty was owed to the appellant. The CPIO committed breach of such duty. The breach of duty was the direct and proximate cause for the obstruction of information sought for in the said RTI application.
It is relevant to note here that the reliance of the PIO (N) on DoP&T order No. F 10/2/2008/IR dated 24 Sept 2010 is misplaced. The DoP&T order is not a settled law and moreover it is in direct contravention of the provisions of Sec 6(3) of the RTI Act. The legislative vision behind enactment of Sec 6(3) of the RTI Act is to facilitate the supply of information.
In the present context, the reply dated 25.04.2012 of PIO (N) blocked the information providing mechanism.
The specific omission on the part of the said defendant is qualified as negligent conduct.
The CPIOs have certain duties like duties to see that the appellant receives information on time, to decide to whom to transfer RTI application or part thereof for expeditious furnishing of information under the provisions of the RTI Act. Ignorance of law 5 is not an excuse in the present case. Hence, the Commission finds it a fit case for imposing penalty on the then CPIO.
For the reasons mentioned above, the Commission finds it proper to impose penalty of Rs 25,000 upon Sh. S.K. Gupta (Commodre-At-Arms), the then CPIO. The appellate authority is directed to recover the amount of Rs 25,000/- from the salary payable to Sh. S.K. Gupta, by way of Demand Draft drawn in favour of 'PAO CAT' in 5 equal monthly instalments. The first instalment should reach the Commission by 23.04.2017 and the last instalment should reach by 23.08.2017. The Demand Draft should be sent to Shri S.P Beck, Joint Secretary & Additional Registrar, Room No 302, Central Information Commission, B- Wing, 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110066.
A copy of this order shall be sent by the registry of the Commission to the Chief of Naval Staff for record.
With the above direction, the complaint is disposed of.
(Amitava Bhattacharyya) Information Commissioner Authenticated true copy (A.K. Talapatra) Dy. Registrar 6