Central Information Commission
Amresh Chandra Mathur vs Chief Commissioner Of Customs, Chennai ... on 21 November, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CUSCZ/C/2020/679227
Amresh Chandra Mathur ....िशकायतकता /Complainant
VERSUS
बनाम
CPIO,
O/o the Commissioner of Customs,
Chennai-I, Commissionerate,
AC & Nodal CPIO, RTI Cell, (Airport),
Anna International Terminal,
Chennai - 600027. .... ितवादीगण/Respondent
Date of Hearing : 22/06/2022
Date of Interim Decision : 31/08/2021
Date of Final Decision : 16/11/2022
INFORMATION COMMISSIONER : Saroj Punhani
The instant matter is being heard in pursuance of the following interim decision
dated 31.08.2021.
ORDER
1. The appellant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO) O/o. The Pr. Commissioner of Customs (Chennai-VII), Chennai. The appellant seeking information on three points, pertaining to drug Vigamox (Generic Name Moxifloxacin Hydrochloride eye drops 0.5%) imported by M/s Alcon Laboratories (India) Pvt. Ltd, Bangalore through Chennai Airport during the year in year 2015- 16, 2016-17 and 2017-18, which is as under:-
"1. Clear certified copy of documents a. provided by Drug controller of India officials (CDSCO port officials) 1 b. endorsed by Drug controller of India officials (CDSCO port officials) that authorized custom officials of Chennai Airport to clear the Consignment to be taken out of the Airport by the importer.
2. If any of the above requested information has been destroyed by Chennai Airport customs office then please provide details of information destroyed and copy of the procedure / office order based on which information has been destroyed.
3. If any of the requested information is not being provided kindly provide appropriate reason for not providing the requested information".
2. The CPIO denied the information under section 8(1)(d) of the Act. Being aggrieved with the response given by the respondent, the complainant filed a complaint u/Section 18 of the RTI Act before the Commission requesting to take appropriate legal action against the CPIO u/Section 20 of the RTI Act.
Hearing:
3. The complainant attended the hearing through video-call. The respondent, Ms. Vandana Raj, Deputy Commissioner/ CPIO attended the hearing through video- call.
4. The complainant as well as the respondent submitted their written submissions dated NIL and 25.08.2021 and the same have been taken on record.
5. The complainant submitted that complete and correct information has not been provided to him by the respondent on his RTI application dated 26.09.2018. He further submitted that initially the respondent has denied the information under Section. 8(1)(d) of the RTI Act, 2005, without application of mind and thereafter denied the information that it does not exist. The appellant also contested that the answering CPIO at the time of replying his RTI application should have appeared before the Commission to defend the case rather than the present nominated CPIO. He also pointed out that the nominated CPIO as per the records available on the website of the public authority are different from the answering CPIO and hence he pleaded that appropriate action be taken against them.
6. The respondent reiterated the reply given by the CPIO and FAA and submitted that the nationwide lockdown in respect of pandemic COVID-19 has been announced on 24.03.2020 and a reply based on the information received from the courier cell has been furnished to the complaint vide their letter dated 30.04.2020, well before the lifting of the nationwide lockdown. Thereafter at the stage of first appeal and on the basis of the written submission made by the courier cell it has been informed to the complainant vide letter dated 17.05.2020 that the information sought by the complainant is not available.
2Interim Decision:
7. The Commission, after hearing the submissions of both the parties and after perusal of records, observes that though a reply dated 30.04.2020 has been furnished by the then CPIO based on the information received from the courier cell, he has failed to apply his mind and confirm the material facts himself and furnished a self-contradictory reply vide letter dated 17.05.2020 again based on the written submissions received from the courier cell. In view of this, the Commission directs Shri Ashok Kumar, the then CPIO, to show-cause in writing the reasons that as to why penalty should not be imposed on him for contravening the provisions of the RTI Act and giving incorrect and misleading information without checking the facts as per the provisions of the RTI Act, within a period of 15 days from the date of receipt of this order. The respondent is directed to serve a copy of this order to Shri Ashok Kumar for its compliance and Shri Ashok Kumar is also directed to appear on the next date of hearing.
8. The Deputy Registrar is directed to fix hearing in the matter after 15 days. Fresh notice of hearing will be issued to the complainant, respondent and Shri Ashok Kumar.
9. Copy of the decision be provided free of cost to the parties.
Relevant Facts emerging during Hearing on 22.06.2022:
The following were present:-
Complainant: Present through intra-video conference. Respondent: Ashok Kumar, Asstt. Commissioner of Customs & Then CPIO present through video conference.
The then CPIO reiterated the submissions made by him in writing on 07.10.2021 in response to the directions contained in the averred Interim Decision stating as under:
"2. in this connection, I humbly submit that the RTI Application dated 28.02.20220 of the Complainant herein was transferred by the CPIO of Office of the Chief Commissioner of Customs, Chennai Zone vide letter T. No S2/P.11/39/2020-CCO (Prey. Legal] dated 28.02-2020 which was commonly addressed to the CPIO of Chennai Customs I and VII Commissionerate. The above letter dated 28.02.2020 transferring forwarding the RTI Application dated 28.02.2020 of the said complainant was received by the Office of CPIO of Chennai-
I Commissionerate on 20.02.2020 was the CPIO of the Chennai-I Commissionerate 3 during the relevant point of time as I was appointed as CPIO of the Chennai Commissionerate as per the Orders dated 23.12.2019 in F. No. S. Misc.47/201.5 -- Airport Admn. (Copy enclosed) by the Commissioner of Customs (Chennai-I). Like me there are 7 CMOs under Chennai Customs Zone.
3. I humbly submit further that there is no Application dated 25.09.2018 was received and dealt by me as it has been referred to in above order of Hon'ble CIC at pars 5, as it appears that the date of application has been mentioned inadvertently as 25.09.2018 instead of 28.02.2020 which is the subject matter of the above complaint. As Already stated, I was the CPIO who dealt the said application dated 28.02.2020 of the complainant herein and Ms. Vandana Raj, Deputy Commissioner is the CPIO of Chennai -- I Commissionerate now since 07.01.2021 as per the order of the Commissioner of Customs (Chennai --I) (Copy enclosed) who represented the hearing on 31.08.2021 in the capacity of CPIO of Chennai --I Commissionerate. Hence, it is not correct that the nominated CPIO as per the records available on the website of the Public Authority are different from the answering CPIO.
4. It is also submitted most humbly that as mentioned in para 6 of the order of Hon'ble IC that there was no reply letter or any other order or communication dated 17.05.2020 by the CPIO or FAA of Chennai --I Commissionerate addressed to the Applicant/ complainant herein. It Is further reiterated that as in the pare 7 of the Hon'ble VC order there is no self -- contradictory reply letter dated 17.05.2020 by me in the capacity of CPIO or otherwise.
5. I humbly submit further that it is true that a reply dated 30.04.2020 in respect of the RTI Application dated 28.02.2020 denying the information as sought for by the Applicant / complainant herein was sent by me. The above reply letter dated 30.04.2020 was on the reply note of Shri. P. Balasubrimanyam, the then Assistant Commissioner of Customs of Courier Cell. In his reply note dated 30.03.2020 it has been stated inter alia that the applicant is seeking third party Information and as per section 8 (1) (d) of the RTI Act, 2005, the details sought by the application are exempted from disclosure. I humbly submit that as I was under
the bona fide impression based on the above reply that the information is available but for the exemption as under section 8 (1) (d) of the Act ibid it was not disclosed. Therefore, the above Applicant/complainant was replied vide the above letter dated 30.04.2020. Shri. P. Balasularamanyam was retired on superannuation on 30.06.2020.
6. I also humbly submit that normally veracity of the reply / response received from the concerned sections/ Units are not verified as there was no occasion or reasons to suspect the bona-fide of the same. Therefore, I humbly submit that my reply dated 30.04.2020 is not deliberate or willful. I had no 4 intention to give any incorrect and misleading information as it has been imputed/alleged in the interim decisions of Hon'ble CIC.
7. It is further submitted that the Applicant has filed an appeal against the above reply dated 30.04.2020 before the First Appellate Authority (FAA) (Chennai--I) vide his First Appeal dated 17.05.2020 on the grounds that the information sought are not exempted as third-party information as they are regulatory information. The non-availability of the sought information was brought to the notice by the said Assistant Commissioner of Customs (Courier Cell) only on 02.06.2020 when the said first appeal was pending for disposal. The First Appellate Authority considering all the above, has passed a comprehensive order dated 09.06.2020 on the said first appeal dated 17.05.2010 covering the contentions of the Appellant/ complainant herein and also informing the Appellant / complainant about the non-availability of the information with Chennai-I Commissionerate as there was no such imports through Chennai I Commissionerate. Hence, the error got rectified at the first appeal stage.
Therefore, I submit that there was no malafide or any callousness on my part. As such 1 have not contravened any of the provisions of RTI Act, 2005 as there was no willful omissions or any other complicity on my part in this regard.
8. It is very pertinent to mention that the appellant / Complainant has not preferred any Appeal against the said order dated 09.06.2020. In view of the above, I submit that my reply dated 30.04.2020 got subsumed in the above order dated 09.06.2020 wherein it has been ordered specifically that no further intervention is required on my reply dated 30.04.2020 and without having any challenge by any further second appeal, my reply letter cannot be challenged at one's own convenience.
9. Notwithstanding the above, I tender my unconditional apology for any of the alleged omissions or commission on my part, if any, so felt by the Commission. I assure that in future I will be more careful and cautious in my dealing with any of the process under RTI Act."
The Appellant lamented that the CPIO and this bench should ask the previous bench about the mention of the letter dated 17.05.2020 in the Interim Decision as he claimed to have never made a reference to any such letter.
The CPIO also emphasized that he is not aware of any such letter of 17.05.2020 issued in the matter from his office as has been already explained in his written submissions.
5Decision The Commission based on the submissions of both the parties does not find any reason to proceed further with the show-cause proceedings initiated vide the averred Interim Decision.
Further, it is pertinent to note that vide his written submissions filed prior to the hearing of 22.06.2022, the Complainant has raised arguments largely related to issues that do not bear mention in the Interim Decision for consideration, nonetheless, these arguments are extracted here for clarity:
"Para 2.
Mr Ashok Kumar admits that there are 7 CPIOs belong to single Public Authority Chief Commissioners of Customs Chennai and are not CPIOs of distinctly separate of Public Authorities ,on the other hand, Ms Vandana Raj's letter dated 25-08-2021, before the Commission, in para a says "that the rejection by the FAA Shri Eswar Reddy is inter alia based on the reply of the concerned Public Authority /Courier cell" Such submission is a clear attempt to confuse the distinction between section 6(3) of the RTI Act and section 5(4) of the RTI Act 2005 with malafide intention to blur the CPIO's conduct as required under RTI Act 2005 Para 3 Mr Ashok Kumar admits that Ms Vandana Raj was not the CPIO who dealt with the RTI Application dated 28.02.2020.There is nothing on record that Mr Ashok Kumar authorised Ms Vandana Raj to represent him during hearing of the Appeal/complaint on 31.08.2021 as required u/s 19(5) of the RTI Act or during hearing of the Complaint u/s 18 of the RTI Act 2005. The RTI Application CUSCZ/R/E/20/00034 dated 28-02- 2020 was responded by 2 officials of the Public Authority- Chief Commissioner of Customs, Chennai namely 1. Shri K Ramesh of Chennai VII and 2. Shri Ashok Kumar of Chennai I. Complainant had submitted that Shri K Ramesh was not the CPIO who responded as CPIO Chennai VII to RTI Application based on reply of CPIO Chennai VII on 18-08-2021 and person who is present during hearing on 31-08-2021 is not CPIO Chennai VII on 18-08-2021 because person who attended the hearing pleaded ignorance regarding reply of CPIO Chennai VII on 18-08-2021 Para 4 Para 7 of the Hon'ble IC's order refers to 1st Appeal of Complainant dated 17-05 -2022 and its response by 1st AA Mr Eswar Reddy. Self-contradiction is manifest first denying the information u/s 8 (d) of the RTI Act, denying information on the ground that nothing was imported claiming courier cell as Public Authority Para 5 The Response of Shri Ashok Kumar is crafty mix-up of facts e.g.
1. His letter dated 30.04.2020 denying information was based on reply note of Shri Balasubrmanyam that was dated 30.03.2020.6
2. Shri Ashok Kumar has neither attached a copy of note sent by him to Shri Balasubrmanyam nor has attached a copy of note sent to him by Shri Balasubrmanyam on 30-03-2020 with his explanation dated 7.10.2021 sent to Commission.
3. Further Shri Ashok Kumar writes that information was based on Custodian i.e. Airport Authority of India Limited in response to RTI application dated 30- 06-2020 subject matter of file No CIC/CUSCZ/C/2020/682873
4. It will be pertinent to attach e book of file No CIC/CUSCZ/C/2020/682873 ( Annexure 3) for perusal of Hon'ble IC. Hon'ble may Kindly note that RTI dated 30-06- 2020 in file file No CIC/CUSCZ/C/2020/682873 Query A , B and C of the RTI application dated 30-06-2020 were directly related to complaint RTI CUSCZ/R/E/20/00034 dated 28-02-2020 that is under consideration today i.e. on 22-06-2022. CPIO Shri Ashok Kumar instead of providing any information requested in the RTI application dated 30-6-2020 said
1. himself Functious officio in respect of RTI application dated 30-06- 2020.
2. information was based on Custodian i.e. Airport Authority of India Limited
3. names of ACPIOs, whom 1st Appellate Authority has consulted while writing his order cannot be disclosed Para 6 Section 5(5) of the RTI Act clearly deals with such situation. Those named by CPIO Mr Ashok Kumar should be summoned under section 18 of the RTI Act for Action u/s 20 of the RTI Act Para 7 1st AA' s order is in it-self is self-contradictory. On the one hand he justifies denial of information u/s 8(1)(d) and on the other hand he says information was not available because nothing was imported based on sources he did not identify in the order. Unnamed ACPIOs on whose basis 1st AA has written order are not custodians of information as per RTI Act. ACPIOs job has been clearly defined u/s 5(2) of the RTI Act 2005 Para 8 Shri Ashok Kumar's response in para 8 is fallacious because RTI Act provides 2 remedies against CPIO's one u/s 18 of the RTI Act 2005 and another u/s 19 of the RTI Act. This position has been clearly clarified by Hon'ble High Court of Delhi in the judgment of Hon'ble High Court of Delhi, in the matter of Dr. Deepak Juneja vs Central Information Commission 29 April, 2019 in WP (C) 11489 of 2016, Annexure 1) that clearly explained the difference between section 18 and 19 of the RTI Act 2005. In view of the afore mentioned order of the Delhi High Court Complainant purposely filed complaint CIC u/s 18 has to examine conduct of CPIOs as a civil court because different CPIOs of the same Public Authority i.e. Chennai Customs were denying the requested information on widely varied grounds like Information very old, Information Lost due to Chennai Floods, providing irrelevant information, denying information u/s 8 and then self-contradicting later that no information was awailable with him.7
Para 9 Hon'ble IC to decide after completing inquiry u/s 18 of the RTI Act 2005 taking into account submissions of CPIOs/deemed CPIOs in respect of RTI Applications mentioned in para 8 under oath and perusal of records of concerned Public Authotities/Public offices.
6. That Ms Vandana Raj CPIO vide her submissions dated 25-08-2021 that was received by the Complainant on 02- 09-2021 i.e. 2 days after hearing on 31-08-2021 and as such Complainant was deprived of filing rejoinder to the submissions of Ms Vandana Raj CPIO . It is submitted that
1. That as per records provided by CPIO CIC Ms Vandana Raj CPIO submissions were neither authorised by any of the CPIOs of Chennai Customs namely i. Shri K Ramesh ii. Shri Ashok Kumar who responded to RTI application nor by Shri V Asokan CPIO, who did not respond to RTI Application, inspite of being nominated CPIO during the period RTI Application was responded.
2. That Ms Vandana Raj CPIO in submissions dated 25-08-2021 has alleged that complainant has submitted a large no of RTI applications on the same issue to Chennai Customs is fabricated and is false.
7. That M ALAGESAN CPIO Chennai VII vide submissions dated 28-08-2021 ( Copy Annexed as Annexure 2) in respect of File Nos CIC/CUSCZ/A/2019/657148 (related to RTI Application CUSCZ/R/2019/50101 dated 8-09-2019) and CIC/CUSCZ/A/2020/678002 (related to RTI Application CUSCZ/R/E/20/00034 dated 28-02-2020, subject matter of present case ). Gist of his submissions are i. electronic records of information requested or a reference to them are available since 1998 ii. CDSCO Port Office Chennai gives NOC a. either through separate memo b. or through endorsement at the back of Bill of Entry.
Plain reading of M ALAGESAN CPIO Chennai VII, submissions dated 28-08-2021, clearly indicate that he was aware beforehand, of the likely decisions of File Nos CIC/CUSCZ/A/2019/657148 (related to RTI Application CUSCZ/R/2019/50101 dated 8-09-2019) and CIC/CUSCZ/A/2020/678002 (related to RTI Application CUSCZ/R/E/20/00034 dated 28-02-2020, ELSE he would have disclosed the requested information and closed the Appeals/Complaints much before the hearing that commenced on 31-08-2021 before Information Commission...."
Even by according a liberal interpretation to the additional arguments tendered by the Complainant, the Commission is unable to appreciate his dissatisfaction as there is no material on record to warrant any adverse action against the present or former CPIOs in the matter. The arguments of the Complainant as narrated 8 above being prima-facie laboured and far stretched render his cause of action as rather misplaced and bereft of merit.
Having observed as above, no action is warranted in the matter.
The Complaint is disposed of accordingly.
Saroj Punhani(सरोजपुनहािन) Information Commissioner (सू सूचनाआयु ) Authenticated true copy (अिभ मािणतस!यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ,उप-पंजीयक दनांक / Date 9