Central Information Commission
Sh. Md. Rafique Ansari vs Damodar Valley Corporation on 22 August, 2008
Central Information Commission
2nd Floor, August Kranti Bhawan,
Bhikaji Cama Place, New Delhi - 110 066
Website: www.cic.gov.in
(Adjunct to Decision No.2760/IC(A)/2008 dated 4th July 2008)
Decision No.3116/IC(A)/2008
F. No.CIC/MA/C/2008/00232
Dated, the 22nd August, 2008
Name of the Appellant: Sh. Md. Rafique Ansari
Name of the Public Authority: Damodar Valley Corporation
Decision
i
Background:
1. The complainant is a land oustee, displaced and physically challenged person. He has grievances relating to his rehabilitation. He has alleged that he has been discriminated against in the matter of providing employment as assured to him. He has also been denied of compensation of Rs.3 lakhs, as directed by the Court, to the physically handicapped persons.
2. In this backdrop, he had sought for certain information vide his letter dated 15/1/2008, which pertain to the status of action taken by the respondent for providing employment to him as per the seniority list prepared by the respondent in 1978-79. Since he did not receive any reply from the CPIO of the respondent, he submitted his first appeal on 20/2/2008, which was also not responded by the Appellate Authority of the respondent. The complainant has, therefore, submitted his complaint to the Commission on the ground that the DVC has not responded to his request for information as per the provisions of the Act.
3. In the course of hearing, which was held on 4.7.2008, the appellant alleged that there have been corrupt practices in providing employment to the land oustees and compensation to the displaced handicapped persons. He i "If you don't ask, you don't get." - Mahatma Gandhi 1 could not get a promised job as he could not pay bribe to the officials of the respondent. He also said that his land measuring about 20 acres was acquired for the respondent's project on the assurance of proper rehabilitation. But, this has not been done despite his oft repeated requests and representations to the respondent for over two decades. He also said that while most of the land oustees and displaced persons, including the physically challenged persons like him, have been provided jobs, he has been discriminated against, mainly on the grounds of his inability to pay bribe. Due to his physical disability, displacement and loss of the major source of income i.e. land, he suffers from all forms of poverty. He has no source of income, after the forceful acquisition of his 20 acres of land for the respondent's project by the Government.
4. The representatives of the CPIO said that the offer of jobs has been made as per Govt. of India's norms for Physically Handicapped Persons, mainly on the basis of percentage of disablement assessed by the Medical Board duly constituted by DVC. In the list of 724 displaced persons of all categories prepared on the basis of educational attainment, the appellant's name appears at Sl. No.218. The appellant alleged that persons below his name have been offered jobs many years ago.
5. After hearing both the parties, the Commission decided the matter. In its order dated 4.7.2008, the following was observed:
• "The evidences presented before the Commission indicate that the respondent has failed in so far as promotion of corporate social responsibility is concerned. While the DVC may have made significant contributions to the process of development of infrastructure, mainly power, it has also contributed to the marginalisation of displaced persons/land oustees, who have sacrificed their land for DVC's project. The DVC has not adhered to the principles of equity and justice in pursuing its objectives of providing critical services, namely power. In a democratic society, the emergence of a better off section of society cannot be justified at the cost of some people, who are marginalized or pushed to a worse off economic conditions. The story of affected persons, like the complainant, is indeed disheartening.
• The complainant's application for information dated 15/1/2008 and subsequent appeal dated 20/2/2008 have not been responded by the CPIO and the Appellate Authority of the respondent Public Authority. Both are, therefore, held responsible for violation of Section 7(1) of the Act. The CPIO is directed to explain as to why a maximum penalty of Rs.25,000/-, should not be imposed on him, u/s 20(1) of the Act, as he has not responded within the stipulated period of 30 days. He should submit his explanation within 15 working days from the date of issue of the decision. He should also appear before the Commission for a personal 2 hearing on 11th August 2008 at 2.30 p.m., failing which penalty would be imposed • The CPIO is also directed to furnish a point-wise response in respect of each points of information asked for by the complainant. He should also respond to the issues of discrimination in providing employment and compensation, as alleged by the complainant.
• The complainant has made serious allegations of neglect by the respondent in the matter of rehabilitation of land oustees and displaced persons. He has alleged that most affected persons below his name in the list of 218/724, have been duly taken care of by way of providing employment opportunities to them while, he being a physically handicapped person and unable to pay bribe, has been neglected, which has resulted in his acute poverty and economic deprivation of all forms. The Chairman, DVC is, therefore, directed to investigate the matter relating to rehabilitation of displaced persons and submit a report to the Commission at the earliest, preferably before the date of hearing as indicated above.
• The Chairman, DVC or his nominee should also explain as to why a suitable compensation under the provisions of the Act should not be awarded to the complainant for:
i) Deemed refusal of information resulting in harassment and all kinds of losses to him; and
ii) Lack of accountability of the respondent in fulfilling its social obligations towards the land oustees and displaced persons like the complainant.
He should submit his explanation within 15 working days and also appear for a personal hearing on the date and time indicated above, i.e. 11th August 2008 at 2.30.p.m. The complainant may also be present."
6. In pursuance of the directions given by the Commission as aforesaid, the respondent has submitted vide its letter dated 1st August, 2008, as under:
(i) An interim reply, informing the applicant that his letter under reference is under process, was given.
(ii) The first appeal submitted by the appellant could not be disposed of in time as the first appeal did not have relevant documents annexed and the delay was, therefore, due to non-supply of documents by the appellant to the departmental appellate authority, who disposed of the appeal vide his letter dated May 22, 2008.
(iii) As regards the appellant's claim for employment, the name of the complainant is appearing at Sl. No.218 and no displaced person 3 below his position in the panel has been given employment except SC/ST and those physically handicapped persons disablement of whose has been assessed by the Medical Board and percentage fixed for giving employment.
(iv) The complainant produced a certificate of being physically handicapped person, to the extent of 40%. His case was considered and the percentage of his disability was assessed by the Medical Board, wherein the percentage of his disability was assessed as 10% only. The vacancies meant for physically handicapped persons were filled up with those who were senior to him with regard to disability and no person junior to him in the matter of disability was considered for giving employment by DVC.
(v) It is pertinent to mention here that due to non-consideration of his case for appointment on handicapped quota, the complainant filed a writ bearing WP No.3584 of 2003 before the High Court, Jharkhand at Ranchi. The Hon'ble Court directed DVC to reconsider his case and pass appropriate order after giving the opportunity of personal hearing. Accordingly, Addl. Director of Personnel, DVC, passed an order on 20.10.2005 explaining everything.
(vi) The above order of Additional Director DVC, Maithon was not acceptable to the complainant and against the same he again filed a writ bearing WP No.362/2006 at Ranchi. The same was dismissed without merit on 18.5.2006, on the ground that "Learned Counsel for the respondent, Damodar Valley Corporation, submits that the case of petitioner will be considered from the panel, already prepared, as and when his turn will come."
(vii) As per percentage of disability, the appellant is not entitled for getting employment in DVC on physically handicapped ground.
(viii) The respondent has conceded that they are prepared to consider the appellant's claim for award of a lump sum amount of Rs.3 lakhs in lieu of employment. In the subsequent letter dated 8.8.2008, DVC has submitted that the issue concerning employment has been raised by the complainant and it was adequately replied. In a communication dated 25.6.2008, the Joint Director (P) informed the appellant that "your case does not attract the provision of employment to Group 'C' post from the approved panel."
7. The matter was heard on 11th August, 2008 in the presence of the complainant and the respondents. The complainant was personally present. The PIO, Shri Phalguni Sikdar was also present along with Senior Additional Director (Law). Both the parties were heard. On behalf of the respondents, 4 same arguments, as above, were reiterated. The petitioner stated: the issue of his being physically handicapped to the extent of 40% has been manipulated and he presented medical certificate to prove his point, the respondents have lied before the Court (Jharkhand) and the Commission of the issue of his entitlement for employment, they have given misleading information, etc. Issues for determination:
8. The Commission at this stage is concerned only to determine:
(i) Whether the information as requested by the appellant has been provided by the CPIO within the specified period and if there is a delay, is it without reasonable excuse so as to warrant imposition of penalty under Section 20(1) of the RTI Act?
(ii) Whether the facts and circumstances of the case warrant award of compensation to the complainant under Section 19(8)(b) of the RTI Act for compensating any loss or detriment suffered by the appellant?
Analysis and Findings:
9. The facts of the case reveal that the RTI application was sent by the applicant to the PIO on 15.1.2008 by registered post. Being a person from BPL, no fee was payable by him and he submitted a photo copy of the BPL list wherein his name was duly recorded. He submitted another application on 24.1.2008. Since no response was received by him, he submitted his first appeal under the RTI Act which was addressed to the Secretary, Damodar Valley Corporation and sent on 20th February 2008. As no response was received even from the first appellate authority, the appellant approached this Commission by filing a complaint petition which was received on 4.4.2008 and registered under Section 18 of the RTI Act.
10. From the records, it further appears that the first response to the request under the RTI Act was sent by the PIO vide his letter dated May 22, 2008. The department has duly acknowledged the receipt of the RTI application dated 15.1.2008 and also the first appeal dated 20.2.2008. The PIO, apart from intimating the applicant on 25.1.2008 that the matter is under process, did not provide any information to the applicant. The Public Authority has also acknowledged the receipt of the first appeal dated 20.2.2008 on 27.2.2008. The response to this appeal petition was given after about a month on 26.3.2008 asking the appellant to submit copies of some document but no information perse was provided till May 22, 2008. Thus, the response was given after four months and as such there is inordinate delay of over four months. Neither the desired information was given nor a plausible explanation has been submitted by the PIO, Shri Phalguni Sikdar, for the inordinate delay of over four months.
511. Under the circumstances, since there is an unexplained delay of over 100 days, and that without furnishing the required information in a truthful manner, the PIO is liable to pay a maximum penalty of Rs.25,000/- u/s 20(1) of the Act.
12. The Commission once again reiterates that the respondent Public Authority has failed to promote corporate social responsibility. The DVC has contributed to the marginalisation of displaced persons/land oustees, who have sacrificed their land for DVC's project in the national interest. The DVC, as an instrument of the State, has not adhered to the principles of equity and justice in pursuing its mandatory objectives.
13. The DVC has admitted that land of about 23.139 acres was acquired from the petitioner. The petitioner having sacrificed over 23 acres of his land, the main source of livelihood, has been thrown into the quagmire of poverty, for no fault of his. He is now a BPL card holder. In a democratic society, enrichment of a few cannot be justified at the opportunity cost of others who are marginalized or pushed to a worse off economic conditions, merely to suffer as a member of the BPL category. The story of affected persons, like the complainant, is indeed disheartening. And, it agitates against the national efforts to alleviate all forms of poverty. Under the NRGES, for instance, every BPL card holder is offered jobs on demand so as to assure a minimum income for maintaining a decent standard of living. In the instant case, his entitlement for Government job, in lieu of land, has been denied.
14. The Commission is indeed concerned to determine as to whether any detriment or loss has been suffered by the appellant on account of non-furnishing of information by the Public Authority. In this case, this loss and detriment has been clearly established, as the DVC itself concedes as under:
• appellant is eligible and may be considered for payment of a lump sum amount of Rs.3 lakhs in lieu of employment;
• The respondent has acquired land of about 23.139 acres in early fifties and that the appellant's name is listed under Sl. No.218/724 for employment on the basis of educational qualifications;
• The Hon'ble High Court of Jharkhand has observed as under:
"Learned Counsel for the respondent, Damodar Valley Corporation (DVC) submits that the case of the petitioner will be considered from the panel, already prepared, as and when his turn will come".
(W.P.(s) No.362 of 2006 dated 23.5.2006).
• A Committee of four senior officers of DVC verified the records of the physically challenged persons on 3.1.2001 and noted that 'the expert opinion of the medical officer-in-charge is in favour of all the (8) 6 candidates. The candidates were found physically handicapped' including the petitioner.
• The DVC states that the petitioner is visually handicapped to the extent of 10 per cent as per its own medical board, whereas the certificate submitted by the petitioner, issued by the competent authority, demonstrates that he is handicapped to the extent of 40%, and thus eligible for employment.
• In separate communications, the respondent has informed the petitioner that 'your case does not attract the provision of employment'. Therefore, the DVC has offered a compensation of Rs.3 lakhs in lieu of employment.
• The petitioner has stated that the DVC has denied him job, while most of the land oustees and displaced persons have been provided jobs. After his prolonged economic sufferings, the DVC is offering compensation of Rs.3 lakhs only in lieu of about 23 acres of land acquired from him in fifties. He also said that since his main source of income i.e. land was acquired, he now belongs to the BPL category. And, he is so poor that he could not support education of his son, who passed High School in 1st Division, the proof of which has been submitted to the Commission.
15. Clearly, the respondent has backtracked on the issue of providing the job to the petitioner. There are contradictions in the statements given by the DVC on the issue of offer of jobs to the land oustees. The information given on this issue is misleading, as evident from the following:
• A panel of eligible candidates for job was prepared, in which the petitioner's name is listed at Sl. No.218.
• He could not be offered job either under general category or under the physically handicapped category though the expert medical advice dated 3.1.2001 was in favour of the petitioner.
• Hon'ble High Court of Jharkhand was informed that he would be offered a job on his turn. (W.P.(s) No.362 of 2006 dated 15.6.2006) • Petitioner has also been told that 'your case does not attract the provision of employment to group 'C' posts from the approved panel'.
• And, finally, he has been offered a compensation of Rs.3 lakhs in lieu of his claim for employment.
16. Evidently, the reasons for not providing employment have varied which is attributable to malafide intentions to deprive him the right to work. The offer of 7 Rs.3 lakhs as compensation in lieu of job establishes the fact that the DVC have had no intention of providing the jobs to the land oustees, particularly the petitioner. There is a lack of consistency in the information and responses given to the petitioner, the Court and this Commission, as described above.
17. The Chairman, DVC, has, unfortunately, paid scant regard to our direction vide Decision dated July 4, 2008, through which he was asked to investigate the matter relating to rehabilitation of displaced persons and submit a report to the Commission at the earliest. He has ignored this direction, which shows lackadaisical attitude of the Chairman and his team of officials who have shown no concern for the plight of the land oustees, who seek justice in terms of the understanding reached between the parties at the time of acquisition of land.
18. The respondent public authority has been playing hide and seek for about 20 years, since 1978, when the panel of eligible land oustees for employment was finalized. Now the hopes of aspirants are shattered as the DVC has offered a compensation in lieu of jobs. But, what about the foregone benefits or the opportunity costs to the people who sacrificed their precious land without realizing that they would be forced to live in abject poverty. One would hardly imagine that a State, or its instrumentality, in any civilized and democratic country like ours can venture to make its poor citizens even poorer. The State/DVC has belied the expectations of the land oustees, on whose resources it has been thriving, without sharing the benefits of its growth among the people who sacrificed the main source of living i.e. land. The DVC owes to them a debt, which it should pay, in adherence to our Constitutional principles of equity and justice.
19. In view of the foregoing, the following decision notice is issued.
Decision Notice:
20. There is not only an unexplained delay of over four months, but also a malafide intention to provide misleading information about the status of the petitioner's claim for employment. The petitioner's name was listed for a Govt. job. And, later he was informed that he could not be offered employment. Against this, the Court was informed that he would get the job on his turn. Finally, he has been offered Rs.3 lakhs in lieu of job and asked to give up his claim for job. Obviously, the respondent has given contradictory and misleading information, for which the PIO is liable to pay a maximum penalty of Rs.25,000/-, u/s 20(1) of the Act. This Commission accordingly directs the Chairman, DVC to deduct the same from the salary of the PIO, Shri. Phalguni Sikdar, in five monthly installments of Rs.5,000/- each. The amount thus deducted should be deposited in favour of Pay and Accounts Officer, Central AdministrativeTribunal, New Delhi, under intimation to Shri. M.C. Sharma, Asstt. Registrar, CIC, New Delhi.
821. There is a breach of trust and confidence between a citizen, the information seeker, and the respondent, the information provider, which acquired land of about 23.139 acres for development of infrastructure in the national interest. This action was taken under the Land Acquisition Act, without obtaining consent of the owner and that under deceitful assurance of guaranteeing a rosy life through a promised Government job, which was not to be given in any circumstances.
22. While the prices of land have increased manifold to enrich the acquirer of land, i.e. respondent public authority, the real owner, the petitioner and his family, has sunk in the quagmire of poverty due to an action by the Government. Had he not sacrificed the land under the draconian laws framed under British rules, he would have been the proud owner of an asset worth Rs.115 lakhs (23.139 acres x say Rs.5 lakhs per acre). A simple bank interest @ 5 per cent per annum would have assured him a return of Rs.48,000/-per month, which is indeed a reasonable amount to maintain a decent standard of living for a family. The petitioner is, however, not so fortunate and his land acquirer cannot appreciate his economic difficulties, for the reasons of lack of concerns towards the physically handicapped and displaced persons. His destiny to hold a BPL card today is owing mainly to the establishment of the DVC, which owes a debt to the petitioner who is running from pillar to post for a justice that has been denied to him. The DVC is held responsible for both denial of justice to the petitioner as well as lack of its accountability to the members of the society, particularly land oustees.
23. In view of the foregoing, the Chairman, DVC is directed, u/s 19(8)(b) of the Act, to pay suitable compensation as under:
a) As there is a breach of trust between the parties, the DVC should provide land, for the land acquired from the petitioner, and, thus, return a cultivatable piece of land of the same size as acquired from the petitioner. This should partially meet the requirements of natural justice, since the act of acquisition of land from the petitioner has severally harmed him and his family and there is no way that his wounds could be healed for the sufferings undergone by him during the last 60 years.
Alternatively, he should be paid financial compensation at the rate of at least Rs.5 lakhs per acre, net of capital appreciation of money already paid to him, if any.
b) In case, however, the land for land cannot be given or the amount of money in terms of the current value of the land cannot be paid due to administrative or legal reasons, the petitioner should be paid at least a financial package equal to the amount paid to the employee of DVC, who was listed just below his name, under 9 Sl. No.218, in the panel of candidates eligible for the jobs, as prepared in 1978-79.
c) Or, he should be paid an amount equivalent the salary of an attendant at the rate of Rs.5000/- per month for the period effective from the date of finalization of the panel i.e. January 1, 1979 till date. The total payable amount under any of the criteria of (a) or (b) or (c), as above, should be released through a Bank Draft in favour of the petitioner latest by September 30, 2008, failing which penal interest at the rate of 10 per cent per annum would be applicable.
d) In addition, he should also be paid Rs.3 lakhs, as offered by DVC, to compensate all kinds of losses and detriment suffered by him for seeking justice in the last 20 years in the matter of his entitlement for right to work, on the ground of his sacrifice of land in the national interest.
24. With a view to ensuring accountability and good governance, including adherence to the principles of equity and justice, the DVC is advised u/s 25(5) of the Act, to consider inclusion of all the land oustees and displaced persons as shareholders of the Company in proportion of the size of land sacrificed by them for promotion of the Power Projects of the respondent. The Chairman, DVC, should examine the feasibility of sharing the benefits of development among the land oustees.
25. The Commission vide its Decision dated 4th July 2008 had directed the Chairman, DVC, to investigate the matter relating to rehabilitation of displaced persons and submit a report to the Commission at the earliest. He has, however, not taken any action in this regard, which clearly reflect a lackadaisical attitude of the DVC towards the affected persons. The Secretary to the Govt. of India, Ministry of Power, is, therefore, directed to Institute a high power committee to examine the grievances of the land oustees, who have been agitating for their rightful claims in the benefits of development, at least to the extent of their contributions made by way of sacrificing precious land in the national interest. A compliance report should be submitted to the Commission within three months from the date of issue of this decision.
26. It must also be said that denial of justice to the land oustees, especially the physically challenged persons like the petitioner would be a blot on the face of shining India, which the economic historians can hardly afford to ignore. It is for all the stakeholders of DVC to deliver justice in an equitious manner, since a citizen of BPL category has miserably been defeated by the system in his fight for rights. A question however remains and that is: Is any one listening to the plight of poor land oustees, Dil se?
1027. The Chairman, DVC and the Secretary, Ministry of Power, GOI, should submit a compliance report to the Commission at the earliest, preferably within three months from the date of issue of this decision.
28. The petition is thus disposed of.
Sd/-
(Prof. M.M. Ansari) Central Information Commissioner ii Authenticated true copy:
(M.C. Sharma) Assistant Registrar Name & address of Parties:
1. Sh. Md. Rafique Ansari, Village: Pakdih, P.O. Bena, Dist. Jamtara, Jharkhand
2. Sh. Phalguni Sikdar, PIO, Damodar Valley Corporation, D.V.S. Towers, V.I.P. Road, Kolkata - 700 054.
3. The Chairman, Damodar Valley Corporation, D.V.S. Towers, V.I.P. Road, Kolkata - 700 054.
4. The Secretary, Ministry of Power, Shram Shakti Bhawan, Rafi Marg, New Delhi - 110 001.
ii "All men by nature desire to know." - Aristotle 11