Central Information Commission
Dr Sagar Mitrajit Gaikwad vs Department Of Health & Family Welfare on 18 February, 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/MOHFW/A/2018/610798-BJ-Penalty
Dr. Sagar Mitrajit Gaikwad
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Ministry of Health and Family Welfare
Dept. of Health and Family Welfare
Nirman Bhawan, New Delhi - 110011
... ितवादीगण /Respondent
Date of Hearing : 17.02.2020
Date of Decision : 18.02.2020
Date of RTI application 04.11.2017
CPIO's response Not on Record
Date of the First Appeal 09.12.2017
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide his RTI application sought information on 05 points regarding the copy of complete file or proceeding or minutes or all information available which led to inclusion of diploma courses of college of Physicians and Surgeons, Mumbai, in First Schedule of the MCI Act, 1956, by Gazette Notification dated 17th October, 2017 and issues related thereto.
Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. The reply of the CPIO/ order of the FAA, if any is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 7
Appellant: Dr. Sagar Mitrajit Gaikwad, arrived late, through VC;
Respondent: Mr. Amit Biswas, US, MoHFW and Mr. D. V. K. Rao, Dy. Secretary (Former CPIO);
The Appellant remained absent during the hearing. Mr. Mohan Kumar, DIO NIC studio at Solapur confirmed the absence of the Appellant. However, the Appellant arrived after completion of the hearing and while tendering his unconditional apology for the delay in arrival submitted that the information sought was not received by him, till date. On being enquired by the Commission whether any e-mail/speed post was received from the Respondent, the Appellant acknowledged that an e-mail had been received but he had not yet perused the same. In its reply, the Respondent while tendering unconditional apology for ignoring the initial response to the RTI application informed the Commission that 500 pages of information had since been furnished to the Applicant through speed post and e-mail. The former CPIO, Mr. D. V. K. Rao, Dy. Secretary present at the hearing profusely pleaded for pardon for the delay that occurred due to other pressing legal work in the Ministry. The Commission was in receipt of a written submission from the Respondent dated 14th February, 2020, wherein it was submitted that the Ministry had given reply to the Applicant on 12.02.2020 without receiving requested money. Furthermore, it was submitted that the Ministry also keeps updating and uploading information on its official site.
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."
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:Page 2 of 7
"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."
Having heard both the parties and on perusal of the available records, the Commission at the outset was appalled to learn about the callous and casual approach exhibited by the Respondent Public Authority Officials in replying to the RTI application/ First Appeal. The Commission observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon'ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was 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."
With regard to providing a clear and cogent response to the Appellant, 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 Page 3 of 7 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."
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."
A reference can also be made to the decision of the Hon'ble High Court of Himachal Pradesh in the matter of Block Development Officer, Paonta Sahib vs. State Information Commission and Anr., CWP No. 6072 of 2012 dated 27.06.2018 held as under:
"9. It is vehemently urged by learned counsel for the petitioner that the impugned order suffers from vice of arbitrariness and, therefore, should be quashed and set aside. It was further argued that the petitioner on receipt of the application had transferred it to the concerned authorities and, therefore, there was no lapse on his part. He would also urge that the petitioner did not know the intricacies of the RTI Act and, therefore, he could not have been penalized.
10. I find no merit in the contention put-forth by the petitioner. It is more than settled that ignorance of law can be no excuse. Once the petitioner is designated as PIO, then all the more he is deemed to have knowledge and even otherwise the least that was required of him was to have acquainted himself thoroughly with the provisions of the RTI Act. Therefore, the explanation as sought to be put-forth by the petitioner at this stage clearly reflects the lackadaisical attitude of the petitioner. The only reasonable explanation for the cause of delay can be accepted and not lame excuses."
Moreover, the Commission observed 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, 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:
Page 4 of 7"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 appellate authority should be a speaking order giving justification for the decision arrived at.
5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. "
The Commission also observed that the Hon'ble High Court of Delhi 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 on the issue of power of the Commission to impose penalty :
"4. The petitioner's case is that once having rejected the explanation submitted by the CPIO (respondent no.2), the CIC was left with no discretion except to levy a penalty at the rate of ₹250/- per day, subject to maximum of ₹25,000/-. The petitioner contends that the CIC had grossly erred in restricting the penalty to only ₹5,000/- as the delay in providing the information was quantified for 485 days.
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 Commission thus 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.
Page 5 of 7DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in light of the decisions cited above, the Commission finds that as per the provisions of Section 20(1) of the RTI Act, 2005, this is a fit case for levying a penalty of Rs. 2,000/- on Mr. D. V. Kameshwara Rao, Dy. Secretary and the then CPIO for not providing the information to the Appellant within the stipulated time frame in contravention to the provisions of the RTI Act, 2005.
The FAA, Ministry of Health and Family Welfare, Dept. of Health and Family Welfare is directed to recover the amount of Rs 2,000/- from the salary of Mr. D. V. Kameshwara Rao, Dy. Secretary and the then CPIO on receipt of this order and remit the same by way of Demand draft drawn in favour of "Pay and Accounts Officer, CAT" payable at New Delhi and send the same to Dy. Registrar, (CR-II) email: [email protected], Room No. 106, First Floor, Central Information Commission, CIC Bhavan, Baba Gangnath Marg, Munirka, New Delhi-110067 within 30 days from the date of receipt of this order.
The Commission further instructs the Respondent 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. Furthermore, it is appalling to note that the FAA had also 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 Appeal stands disposed with the above directions.
(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: 18.02.2020 Page 6 of 7 Copy to:
1. The Secretary, Ministry of Health and Family Welfare, 'A' Wing, Nirman Bhawan, New Delhi-110011 (with the instruction to ensure discipline with regard to the replies to the RTI applications within the stipulated time period as per the provisions of Section 7 (1) and 19 (6) of the RTI Act, 2005)
2. Mr. Devesh Deval, FAA and Director, Ministry of Health and Family Welfare, Dept. of Health and Family Welfare, Room No. 243, "A" Wing, Nirman Bhawan, New Delhi - 110011 Page 7 of 7