Central Information Commission
Radha Raman Tripathy vs Chief Commissioner Of Income Tax (Cca) , ... on 27 September, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
िशकायत सं या / Complaint No. (s):- CIC/CCAPT/C/2018/637363-BJ+
CIC/CCAPT/C/2018/637366-BJ
Mr. Radha Raman Tripathy
.... िशकायतकता /Complainant
VERSUS
बनाम
CPIO & Jt. Commissioner of Income Tax, Range - 3
Office of the Jt. Commissioner of Income Tax
Range - 3, Bokaro, Sector - I/C, B. S. City - 827001
... ितवादीगण /Respondent
Date of Hearing : 24.09.2019
Date of Decision : 27.09.2019
ORDER
RTI - I File No. CIC/CCAPT/C/2018/637363-BJ Date of filing of RTI application 09.02.2018 CPIO's response 09.03.2018 Date of filing the First appeal Not on Record First Appellate Authority's response Not on Record Date of diarised receipt of Complaint by the Commission Nil FACTS:
The Complainant vide his RTI application sought information on 02 points in respect of JCIT, Range-3, Bokaro, regarding the total number of records destroyed during the period from 01.04.2011 to 31.03.2013 as also the copy of orders/instructions of higher authorities authorizing for weeding out of records beyond six years.
The CPIO, vide its reply dated 09.03.2018, responded to the queries of the Complainant point- wise wherein for point no. 01, it was informed that no such records was maintained by the CPIO office and for point no. 02 that no such copy of Orders/instruction of Higher authorities authorizing for weeding out of records was available. Dissatisfied due to receipt of misleading and unsatisfactory response from the CPIO, the Complainant approached the Commission.
Page 1 of 10
RTI - II File No. CIC/CCAPT/C/2018/637366-BJ
Date of filing of RTI application 10.02.2018
CPIO's response 09.03.2018
Date of filing the First appeal Not on Record
First Appellate Authority's response Not on Record
Date of diarised receipt of Complaint by the Commission Nil
FACTS:
The Complainant vide his RTI application sought information in respect of JCIT, Range-3, Bokaro, regarding the total number of records destroyed during the period from 15.06.2016 to 15.06.2017.
The CPIO, vide its reply dated 09.03.2018, responded to the queries of the Complainant stating that no such records was maintained by the CPIO office. Dissatisfied due to receipt of misleading and unsatisfactory response from the CPIO, the Complainant approached the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Mr. Radha Raman Tripathy through VC;
Respondent: Mr. Pranob Koley, JCIT, Mr. Ravi Kumar, ITO, Hq., Mr. Gopal Sonar, OS and Mr. Raj Kishore Shah, Inspector through VC;
The Complainant submitted that vague, incorrect and misleading information was provided by the CPIO and that most of his RTI applications were replied by way of a common order which was non-reasoned and a "cut paste" job done without proper application of mind. He submitted that vide his RTI applications he was seeking generic information regarding the number of records weeded out/ destroyed and that there ought to exist a guideline/ circular/ notification explaining the policy for weeding out of records in the Public Authority and stock of the records/ documents weeded out. In addition, the Complainant submitted that the information sought related to the public duty of officers and that his intention was to expose the alleged malpractices in the Respondent Public Authority. Therefore, he vehemently argued for imposition of penalty and disciplinary action against the CPIO for his casual and callous approach in dealing with such RTI applications. On a query from the Commission regarding the reasons for not filing the First Appeal in all these cases, the Complainant expressed his dissatisfaction over the First Appeal Mechanism within the Public Authority and narrated his personal experience in several other matters where the FAA had merely concurred with the CPIO without application of mind. He argued that in the year 2018, he did not file any First Appeal because of lack of trust and confidence in the institution of FAA. However, with the transfer of officials, he had since started filing the First Appeal. The Complainant raised a legal point with regard to the filing of First Appeal mandatorily as according to him there was no such provision in the RTI Act, 2005 that contained a provision to this effect. In its reply, the Respondent (JCIT, Range 1 and 2, Hazaribagh and Range- 3, Bokaro) at the outset submitted that being very recently deputed to the post JCIT and CPIO, Hazaribagh and Bokaro, he was not fully conversant with the facts of each matter. However, with regard to the instant matters, he re-iterated the replies of the CPIO but agreed that there ought to exist a guideline/ circular on the basis of which record were weeded Page 2 of 10 out in the Public Authority. There was a palpable lack of awareness amongst the Public Authority Officials about the circulars in this regard. He further assured to look into the matter and ascertain the details of the records weeded out, if any, for the period mentioned in the RTI applications. The Respondent also emphasized that being dissatisfied with the reply of the CPIO, the Complainant had the option of remedial action through the institution of FAA which he failed to exercise.
The Commission observed that the information regarding the policy for weeding out of records and the generic details regarding the number of documents/ records actually weeded out should be prepared and suo motu disclosed on the website of the Public Authority for the ease and convenience of the public at large. The Commission thus noted that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo-motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act. The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and Page 3 of 10 transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
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."
Moreover, the Commission felt that there was an urgent need to develop a robust system of record keeping in the Respondent Public Authority and to review its efficaciousness periodically. In this context, a reference was made to the decision of the Hon'ble High Court of Bombay in the matter of Union of India v. Vishwas Bhamburkar, W.P.(C) 3660/2012 dated 13.09.2013 wherein the Court had in a matter where inquiry was ordered by the Commission observed as under:
"6............It is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever an information is sought and it is not readily available, a thorough attempt needs to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the Page 4 of 10 information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired information. Even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of the record. Unless such a course of action is adopted, it would be possible for any department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act."
The Hon'ble High Court of Gujarat in the matter of Chandravadan Dhruv vs. State of Gujarat and Ors, Special Civil Application No. 2398 of 2013 dated 21.12.2013 held as under:
"24. Since the issue raised by the petitioner is of a vital public importance, we, on our own, made a little research on the subject and found that the Department of Personnel and Training of the Government of India has constituted a Task Force for the effective implementation of Section 4 of the RTI Act. As a part of this Task Force, IT for Change is facilitating a sub group on 'Guidelines for Digital Publication under RTI supporting Proactive Disclosure of Information'. As a part of the work of this sub-group a one day consultation was held on the said subject i.e. 'Formulating guidelines for digital publication under RTI supporting proactive disclosure of information' in Bengaluru. 25.3 How to ensure proper record keeping?
• The required level of proactive disclosure is not possible without appropriate record keeping, and this aspect needs focused attention. There are detailed rules for record keeping and they should be strictly followed and the scheme for it should be published. Record keeping practices may have to be reviewed from the point of view of comprehensive proactive disclosure requirements, especially through digital means. • Section 4.1.a is very clear about the need for proper record keeping, inducing in digital and networked form. Funds should be earmarked for digitizing records. Complete details of all records that are maintained and available digitally, and about those which are not, with due justification thereof, should be published. Annual reports on compliance with section 4.1.a should be sought by the Information Commissions. • The costs involved in digitizing resources and maintaining networked computer based record-keeping and information systems is often cited as a major deterrent. It was felt that it is no longer a major issue. India is at par or better in terms of IT issues than many developed countries that maintain high standards of digital publishing of public information. The real cost is in terms human resources, including skills, and these are easily available at all levels in India today.
• An example was given about how a government office in Bangalore was able to scan all its documents at a very low cost. Another example that was discussed was of 'Bhoomi' project in Karnataka, whereby, it was contended that, if open public access to such complex spatial data as the land records of the entire state can be ensured, how can giving access to all textual documents of an office or department be any more difficult."Page 5 of 10
The Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
However, the Commission observed that in none of the matters, the First Appeal was filed by the Complainant. In the context of utilisation of efficacious alternative remedy, the Commission referred to the decision of the Division Bench of the Apex Court in Roshina T. vs. Abdul Azeez K.T. & Ors. CIVIL APPEAL NO.11759 OF 2018 Arising out of SLP (C) No. 30465 of 2017) dated 03.12.2018 wherein it was held as under:
"15. It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available Page 6 of 10 except where violation of some statutory duty on thepart of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies byway of a civil suit or application available to anaggrieved person. The jurisdiction under Article 226of the Constitution being special and extraordinary it should not be exercised casually or lightly on mere asking by the litigant. (See Mohan Pande vs. Usha Rani, 1992 (4) SCC 61 and Dwarka Prasad Agrawal vs BD Agrawal, (2003) 6 SCC 230)."
Moreover, in the matter of GM, Sri Siddeshwara Co-operative Bank Ltd. & Anr. vs. Sri Ikbal & Ors. in CIVIL APPEAL NOS. 6989-6990 OF 2013 (Arising out of SLP(C) Nos.17704-17705 of 2012)dated 22.08.2013, it was held as under:
"27. There is one more aspect in the matter which has troubled us. Against the action of the Bank under Section 13(4) of the SARFAESI Act, the borrower had a remedy of appeal to the Debts Recovery Tribunal (DRT) under Section 17. The remedy provided under Section 17 is an efficacious remedy. The borrower did not avail of that remedy and further remedies from that order and instead directly approached the High Court in extraordinary jurisdiction under Article 226 of the Constitution of India.
31. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented."
A reference can also be made to the decision of the Apex Court in Kanaiyalal Lalchand Sachdev and others vs. State of Maharashtra and others, 2011 (2) SCC 782, the relevant extracts of which are as under:
"23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person."
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 Page 7 of 10 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 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 Page 8 of 10 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:
"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."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the allegations levelled by the Complainant regarding the issue of non-maintenance of record relating to weeding out/ destroying records and compliance of policies/ extant guidelines regarding the same by the JCIT Hazaribagh and Bokaro, the Commission advises the CCIT, Page 9 of 10 Ranchi to look into the matter and review the process of weeding out of records as per the extant guidelines.
The Commission also observed that there is an administrative lacunae in the Respondent Public Authority in the manner of dealing with the RTI applications and record keeping as was evident from the contentions of the Complainant. Therefore, the Respondent Authority should seriously consider to expedite the process of digitizing its records for easy compilation and facilitating its access as and when required. 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.
However, the contention of the Respondent pertaining to the non-utilization of the mechanism under Section 19 (1) of the RTI Act, 2005 remained unsubstantiated and unanswered by the Complainant. Furthermore, in the light of the aforementioned judgment of the Apex Court as cited above, it is evident that in the judicial / quasi judicial process the procedures for remedial action should invariably be exhausted unless there are compelling reasons for not doing so.
The Complaints stand disposed accordingly.
(Bimal Julka) (िबमल जु का) (Information Commissioner) (सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) (K.L. Das) (के .एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 27.09.2019 Copy to:
1- The Secretary, Department of Revenue, M/o Finance, North Block, New Delhi - 110001 2- The Chairman, CBDT, Department of Revenue, M/o Finance, North Block, New Delhi - 110001;
3- The Chief Commissioner of Income Tax, Income Tax Department, Central Revenue Building , Main Road, Ranchi, Jharkhand Page 10 of 10