Central Information Commission
Binod Kumar Singh vs Comptroller & Auditor General on 2 July, 2020
के य सचू ना आयोग
Central Information Commission
बाबा गंगनाथ माग, मु नरका
Baba Gangnath Marg, Munirka
नई द ल , New Delhi - 110067
वतीय अपील सं या / Second Appeal No.:- CIC/CAGIN/A/2018/153105-BJ
Mr. Binod Kumar Singh
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Sr. Dy. Accountant General (Audit)
Office of the Pr. Accountant General (Audit)
Ranchi - 834002, Jharkhand
... तवाद गण /Respondent
Date of Hearing : 30.06.2020
Date of Decision : 02.07.2020
Date of RTI application 14.05.2018
CPIO's response 08.06.2018
Date of the First Appeal 17.07.2018
First Appellate Authority's response 25.07.2018
Date of diarised receipt of Appeal by the Commission 29.08.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information/clarifications on 06 points regarding the reason for treating provisional payments made by A.G (Audit) Patna as pay fixed at Rs. 4000 per month with effect from September 2000 consequent upon his joining to the post of Auditor in September 2000 when pay and allowances already defrayed to him by the A.G (Audit) office, Ranchi from September to December 2000 was Rs. 5850 and other issues related thereto.
The CPIO, vide its letter dated 08.06.2018 provided a point wise information to the Appellant. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 25.07.2018 stated that the information sought by the Appellant had already been provided to him vide letter dated 08.06.2018.Page 1 of 7
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Binod Kumar Singh through TC;
Respondent: Mr. Sanjeev Kumar, CPIO through TC;
The Appellant reiterated the contents of the RTI application and stated that the clarifications/reasons sought by him in his RTI application had not been received, till date. He emphasized that as per Section 4(1) (d) of the RTI Act, 2005, reasons for its administrative or quasi-judicial decisions to the affected persons should be communicated. In its reply, the Respondent reiterated the replies of the CPIO/FAA and stated that a point-wise response as available on record had already been shared with the Appellant, as per the provisions of the RTI Act, 2005. It was further submitted that reasons/ clarifications did not come under the purview of the RTI Act, 2005 and accordingly, a suitable reply was provided, receipt of which was denied by the Appellant. The Appellant further argued that the FAA had referred to the reply of the CPIO dated 08.06.2018 but the same was not enclosed with the order. Therefore, penalty should be imposed on the erring CPIO as per the provisions of the RTI Act, 2005, for not furnishing the information, till date. The Appellant alleged corruption and malpractices within the Respondent Public Authority. The Respondent consistently maintained that the available information had already been shared with the Appellant within the stipulated time period by the CPIO/FAA. On being queried by the Commission whether any Court Case pending adjudication in the matter, the Appellant replied in the negative. On a further query regarding any Complaint made to the DAG/Senior Officer in this regard, the Appellant replied in the affirmative and stated that no action had been taken.
The Commission was in receipt of an email from the Appellant dated 29th June, 2020 wherein it was stated that he is stranded at his native village Bihari Bigha under Patna District in Bihar during lockdown and therefore, requested to contact him on his mobile number for any queries or clarification during the hearing before the Commission on 30 June 2020.
The Commission was in receipt of a written submission from the Respondent dated 23.03.2020 wherein a point-wise response to the queries raised by the Appellant was furnished. It was further stated that the CPIO had provided the information and the FAA had decided the Appeal as per the provisions of the RTI Act, 2005. The copy of written submission was not endorsed to the Appellant. The Respondent however agreed to email the copy of the submission to the Appellant at the given email id ([email protected]).
The Commission noted that in number of queries the Appellant had sought for the reasons for treating provisional payments made by A.G (Audit) Patna as pay fixed at Rs. 4000 per month with effect from September 2000 consequent upon his joining to the post of Auditor in September 2000; reasons for terminating his lien; reasons for not acceding to his request for holding lien on the post of Senior Auditor, etc., which did not fall within the ambit of Section 2(f) of the RTI Act, 2005 and the same was confirmed by the Hon'ble Courts in plethora of judgments. Moreover, the CPIO had responded suitably by referring to several DOPT Letters in respect to the queries raised by the Appellant.Page 2 of 7
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 and Anr. Vs. Aditya Bandopadhyay and Ors), 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."
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."
Page 3 of 7Furthermore, The High Court of Bombay in Dr. Celsa Pinto, Ex-Officio Joint Secretary (School Education) vs The Goa State Information Commission on 3 April, 2008 (2008 (110) Bom L R 1238) had held as under:
"Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information."
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information."
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."
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 Page 4 of 7 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.
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 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 Page 5 of 7 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 Commission also observed that the Hon'ble High Court of Delhi in the matter of R.K. Jain v. V.P. Pandey, CPIO, CESTAT, New Delhi in W.P. (C) No. 4785/ 2017 dated 10.10.2017 adjudicated on the correctness of an order of the Commission dated 17.04.2017 whereby the Respondent was cautioned to exercise due care in future and to ensure that correct and complete information is furnished to the RTI applicants. It was decided that:
"2. The grievance of the petitioner is that although the CIC had accepted that there was a delay in providing the necessary information to the petitioner, the CIC had not imposed the penalty as required under Section 20(1) of the Right to Information Act, 2005. It is well settled that imposing of the penalty is a discretionary measure. In Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 a division bench of this Court had considered the question whether the levy of penalty was discretionary and held as under..........
3. In this case it is apparent that the CIC had in its discretion considered that a order cautioning the CPIO would be sufficient. This Court is not inclined to interfere with such exercise of discretion."
Furthermore, the Hon'ble High Court in the matter of R.K. Jain v. CIC and Anr. in W.P.(C) 4152/2017 dated 10.10.2017 had held as under:
Page 6 of 7"5. The question whether the CIC had the discretion to restrict the penalty or whether penalty as provided under Section 20 of the Act is mandatory, is no longer res integra. The said question was considered by a Division Bench of this Court in Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 and the relevant extract of the said decision is set out below....
6. In view of the above, this Court finds no reason to interfere with the discretion exercised by the CIC. The petition is, accordingly, dismissed."
The High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition No.6504 of 2009 Date of decision: 04.03.2010 (State of Punjab and others vs. State Information Commissioner, Punjab and another); had held as under:
"3. The penalty provisions under Section 20 is only to sensitize the public authorities that they should act with all due alacrity and not hold up information which a person seeks to obtain. It is not every delay that should be visited with penalty. If there is a delay and it is explained, the question will only revolve on whether the explanation is acceptable or not. If there had been a delay of a year and if there was a Superintendent, who was prodding the Public Information Officer to act, that itself should be seen a circumstance where the government authorities seemed reasonably aware of the compulsions of time and the imperatives of providing information without any delay. The 2nd respondent has got what he has wanted and if there was a delay, the delay was for reasons explained above which I accept as justified."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, 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 Respondent is however instructed to forward a copy of CPIO's reply dated 08.06.2018 as also the copy of written submission dated 23.03.2020 sent to the Commission to the Appellant within a period of 15 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email ([email protected]), as agreed.
The Appeal stands disposed accordingly.
(The order will be posted on the website of the Commission) (Bimal Julka) ( बमल जु का) (Chief Information Commissioner) (मु य सूचना आयु त) Authenticated true copy (अ भ मा णत स या पत त) (K.L. Das) (के.एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26186535/ [email protected] दनांक / Date: 02.07.2020 Page 7 of 7