Central Information Commission
D Shekhar vs Ut Of Andaman & Nicobar on 15 April, 2021
Author: Uday Mahurkar
Bench: Uday Mahurkar
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No.:- CIC/UTOAN/A/2021/107364-UM
Mr. D Shekhar
....अपीलकताग/Appellant
VERSUS
बनाम
CPIO,
O/o Municipal Council, Port Blair,
UT of Andaman & Nicobar Island - 744101
प्रनतवािीगण /Respondent
Date of Hearing : 12.04.2021
Date of Decision : 13.04.2021
Date of RTI application 05.10.2020
CPIO's response 04.12.2020
Date of the First Appeal 16.11.2020
First Appellate Authority's response Not on record
Date of diarized receipt of Appeal by the Commission 17.02.2021
ORDER
FACTS The Appellant vide his RTI application sought informationon the following 28 points:-
1. Copy of surrender certificate issued by the concerned authority.
2. Copy of NOC received from the Revenue Authority.
3. Copy of Administrative approval and expenditure sanction.
4. Copy of tender notice and Unique ID page generated after uploading in NIC.Page 1 of 7
5. Total No. of application received in response to tender notice.
6. List of rejected application if any along with reasons for rejection.
7. Copy of relevant pages of tender sale register and tender receipt register.
8. Copy of justification statement analysis of rates and comparative statement.
9. Copy of agreement.
10. Copy of in principle approval obtained in respect of extra items, substituted items and deviation items along with sanction extra items statements/ substituted items statements and deviation statements.
11. Which CPWD works manual and GCC were adopted for carry out the work.
12. Copy of test report of materials.
13. Bill vouchers of materials procured by the contractor.
14. Copy of indent submitted to store division for issue of materials stipulated in the agreement.
15. Copy of supply order / work order / quotations if any carried out under the same A/A&E/S.
16. Permit of earth cutting and transportation if earth filling is done.
17. Copy of RA bill along with relevant pages of MB in which record entries has been made.
18. Copy of final bill along with relevant pages of MB in which record entries has been made.
19. Copy of escalation if any made by contractor under clause 10C, 10 Cc or 10 CA.
20. The work was completed according to the milestone fixed or not, if not, then furnish copy of rescheduled milestone.
21. Copy of provisional extension of time given at divisional level.
22. Copy of show case notice issued to contractor ID any.
23. Copy of relevant pages of hindrance register, cement register, road roller register and material at site register.
24. Copy of reply of show case notice submitted by contractor.
25. Copy of final extending of time granted to contractor.
26. Total up to date expenditure made is above or below the permissible limit specific in CPWD works manual.
27. If the expenditure was exceeded the permissible limit then revised sanction has been obtained or not, if not reason for so.
28. As per Section 2 (j) (1) of the RTI Act, 2005, would like to inspect the all the above documents, records during the period.
The CPIO vide letter dated 04.12.2020 informed the Appellant that he may inspect the document / record on payment as per norms and after inspection specific requirement will be supplied on payment of usual charges. Dissatisfied with the response of the CPIO, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission. Thereafter, the Appellant filed a Second Appeal before the Commission with a request to provide information and impose penalty to the CPIO.
Page 2 of 7HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Absent;
The Appellant as well as the Respondent remained absent during the hearing. Ms. Kalyani, Network Engineer, studio at NIC Port Blair confirmed their absence. The Commission was under intimation by the Appellant that he would be unable to attend the hearing due to personal reasons. No intimation was received from the Respondent's side and despite prior intimation neither the CPIO nor any representative from the Municipal Council appeared before the Commission for attending the hearing through VC. As per track consignment, the notice of hearing in all the matters listed for hearing today has been delivered to Port Blair, HQ on 05.04.2021. Moreover, the FAA had not passed any order, till date as per the record. It is however noted by the Commission that there has been gross negligence and neglect in handling the RTI matters in the Public Authority which has been consistently commented adversely by the Commission from time to time.
The Commission felt that correct and timely response is the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this context, the Commission referred to the decision of the Hon'ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been held as under:
"14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy."Page 3 of 7
With regard to providing a clear and cogent response to the Complainant, the Commission referred to the decision of the Hon'ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
" 7"it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
8.............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non- disclosure."
The Hon'ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed ".....that a CPIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information. The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow".
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only.
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the Page 4 of 7 appellate authority should be a speaking order giving justification for the decision arrived at."
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
Furthermore, the Commission also referred to the OM No. 1/32/2007-IR dated 14.11.2007 wherein while prescribing for creation of a nodal authority for dealing with RTI applications, it was stated as under:
"It is, therefore, requested that all public authorities with more than one PIO should create a central point within the organization where all the RTI applications and the appeals addressed to the First Appellate Authorities may be received. An officer should be made responsible to ensure that all the RTI applications/ appeals received at the central point are sent to the concerned Public Information Officers/ Appellate Authorities, on the same day. For instance, the RTI applications/ appeals may be received in the Receipt and Issue Section/ Central Registry Section of the Ministry/ Department/ Organization/ Agency and distributed to the concerned PIOs/ Appellate Authorities. The R&I/CR Section may maintain a separate register for the purpose. The Officer-in-charge/ Branch Officer of the Section may ensure that the applications/ appeals received are distributed the same day."
Furthermore, in Ministry Of Railways Through ... vs Girish Mittal on 12 September, 2014 W.P.(C) 6088/2014 & CM Nos.14799/2014, 14800/2014 & 14801/2014, the Hon'ble High Court of Delhi held as under:
"15. The plain language of Section 6(3) of the Act indicates that the public authority would transfer the application or such part of it to another public authority where the information sought is more closely connected with the functions of the other authority. The reliance placed by the learned counsel for the petitioner on the provisions of Section 6(3) of the Act is clearly misplaced in the facts and circumstances of the case. This is not a case where penalty has been imposed with respect to queries which have been referred to another public authority, but with respect to queries that were to be addressed by the public authority of which petitioner no. 2 is a Public Information Page 5 of 7 Officer. Section 6(3) of the Act cannot be read to mean that the responsibility of a CPIO is only limited to forwarding the applications to different departments/offices. Forwarding an application by a public authority to another public authority is not the same as a Public Information Officer of a public authority arranging or sourcing information from within its own organisation. In the present case, undisputedly, certain information which was not provided to respondent would be available with the Railway Board and the CPIO was required to furnish the same. He cannot escape his responsibility to provide the information by simply stating that the queries were forwarded to other officials."
A reference can also be made to a recent decision of the High Court of Delhi in the matter of Shikha Bagga Vs. Public Information Officer, Directorate of Education and Another's, in W. P. (C) 4172/2017 dated 13.07.2017 wherein it was held as under:
"4. Clearly, transferring the petitioner's application to various schools is unsustainable. The PIO is required to provide all such information as sought for, subject to the exceptions as provided under the Act
5. In the circumstances, the writ petition is allowed and the impugned letters/orders dated 18.04.2017 and 22.04.2017 transferring the petitioner's application to various officers and various schools are set aside. It is directed that the petitioner's application be considered by respondent no.1 in accordance with law"
The Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. The Commission expressed its displeasure on the casual and callous approach adopted by the Respondent in responding to the RTI application. It was felt that the conduct of Respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
DECISION:
Keeping in view the facts of the case and the submissions available on record and in the light of the utter neglect and irresponsiveness in dealing with the RTI applications/ Appeals, the Commission directs the Secretary, PBMC to review the whole mechanism of dealing with RTI applications and evolve a robust and effective system of replying to such applications within the stipulated time period as per the provisions of the RTI Act, 2005. In large number of cases dealt with by the Commission from time to time, it had been consistently advised to the Public Page 6 of 7 Authority to re-organise and systematize its RTI / Grievance Redressal Mechanism but no satisfactory improvement had been observed, so far.
The Commission further directs the Respondent to offer inspection to the Appellant of the Records/ Documents pertaining to the RTI Application at a mutually convenient date and time within 30 days from the date of receipt of this order and to furnish a compliance report to the Commission after the completion of the inspection.
The Commission also directs the Respondent to depute a responsible officer to assist the Appellant during inspection and facilitate inspection of complete files and provide certified copies of selected documents to the Appellant as per Rule 4 of the RTI Act rules, 2012.
Furthermore, it is appalling to note that the FAA had not acted in accordance with the provisions of the RTI Act, 2005 and therefore is advised to be alert and cautious in the implementation of the RTI Act, 2005 with due diligence and care.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed off accordingly.
(Uday Mahurkar) (उिय माहूरकर) (Information Commissioner) (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणत एवं सत्यानपत प्रनत) (R. K. Rao) (आर.के . राव) (Dy. Registrar) (उप-पंजीयक) 011-26182598 / [email protected] दिनांक / Date: 13.04.2021 Page 7 of 7