Central Information Commission
R K Jain vs Central Board Of Excise And Customs - ... on 11 October, 2017
CENTRAL INFORMATION COMMISSION
2nd Floor, C-Wing, August Kranti Bhawan,
Bhikaji Cama Place, New Delhi -110066.
Tel: 011 - 26182597, 26182598
Email: [email protected]
Complaint No.:-CIC/SB/C/2016/000223-BJ-Adjunct-I
Complainant : Mr. R K Jain
Respondent : I. Mr. V.P. Pandey,
CPIO & Assistant Registrar,
Customs Excise & Service Tax
Appellate Tribunal, New Delhi
II. Mr. Rajendra Prasad,
CPIO & Accounts Officer,
Customs Excise & Service Tax
Appellate Tribunal, New Delhi
III. Mr. A. Mohan Kumar
Registrar, Customs Excise & Service Tax
Appellate Tribunal, New Delhi
IV. Mr. S.K. Verma,
Assistant Registrar and Former CPIO
Customs Excise & Service Tax
Appellate Tribunal, Kolkata
V. Mr. Kripa Shanker,
Assistant Registrar,
Customs Excise & Service Tax
Appellate Tribunal, Hyderabad
Date of Hearing : 28.02.2017, 04.09.2017, 10.10.2017
Date of Decision : 28.02.2017, 04.09.2017, 10.10.2017
Date of filing of RTI application 26.05.2014
CPIO's response 27.05.2014, 10.10.2014 &
17.12.2014
Date of filing the First Appeal 08.07.2014
First Appellate Authority's response 22.08.2014
Date of diarised receipt of complaint by the 13.04.2016
Commission
ORDER
FACTS:
Page 1 of 17The complainant vide his RTI application sought information on 07 points (A to G) regarding the court supplementary cause list for all CESTAT Benches at Delhi from 01.01.2014 till date, inspection of court master dairy for the years 2012,2013 and 2014 for all the CESTAT Benches at Delhi, details and list of diaries and registers maintained by all the Court Masters and the Assistant Registrar( ARs) of all the benches at CESTAT, Delhi, inspection of daily diary of Court Master and AR, CESTAT, Delhi in form XXXVI & XXXVII for the year 2012, 2013 and 2014, date when the notice for hearing of Appeal no. E/29/02 of the Ahmedabad Bench was decided by Delhi Bench, copies of note sheets and correspondence pages of the RTI dealing with the said matter and the list of files from which information is sought for the instant RTI application etc. The Accounts Officer/CPIO vide its letter dated 22.05.2014 transferred the RTI application to the deemed CPIOs under Section 6(3) and Section 5(4) read with Section 5(5) of the RTI Act, 2005 with the request to provide information on or before 12.06.2014. Dissatisfied by non-receipt of any information, the complainant approached the FAA. The FAA vide its order dated 22.08.2014 directed the CPIO to furnish the required information within two weeks time. Thereafter, the CPIO vide its letter dated 04.09.2014 and 17.12.2014, transferred the RTI Application to Assistant Registrar, CESTAT. However, The CPIO vide its letter dated 10.10.2014 provided a document enclosed with it that contained a note from the Assistant Registrar which inter-alia offered inspection of the documents on 14.10.2014.
HEARING:
Facts emerging during the hearing on 28.02.2017:
The following were present:
Complainant: Mr. R. K. Jain;
Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar;
The complainant reiterated the contents of RTI application and stated that he had sought copies of supplementary cause list, inspection of Court Master Diary, dates when notice of hearing were issued for Appeal No. E/29/2000- Larger Bench of 09.06.2014, etc. It was stated that no reply was provided to him despite transfer of the RTI application by CPIO vide letter dated 27.05.2014 to AR (Excise)/AR (Customs/ AR (SM)) which prompted him to file the first appeal. It was also submitted that the order of the First Appellate Authority (FAA) dated 22.08.2014 directing the CPIO to provide the information in two weeks had also not been complied with. The complainant explained that subsequently, the AR, Excise vide its letter dated 29.09.2014 provided incorrect information on point (A) by stating that the information on cause lists including supplementary cause list was provided in another RTI ID No. 136/2014 dated 05.09.2014. During the course of hearing, the complainant drew reference to the other RTI application no. 8543 dated 06.08.2014 referred by AR, Excise in his response to convey that the information sought in that particular RTI application related to the period 25.05.2014 to 07.08.2014 while in the Page 2 of 17 present RTI application information was sought for the period between 01.01.2014 to 25.05.2014, hence it was misunderstood and misquoted by the respondent. It was also argued that false information was provided on point no. C and that on points E, F and G, the AR (Excise) ought to have forwarded the RTI application to the holder of information instead of stating that the points did not belong to the Excise Branch.
In reply, the respondent submitted that all available information was provided by them vide letter dated 29.09.2014. It was also submitted that they were willing to provide any other document in the context of RTI application and facilitate inspection of records, if required. On a query from the Commission, regarding the reasons why the AR (Customs) and AR (Single Member) did not respond to the RTI application consequent to its transfer dated 27.05.2014, no satisfactory response could be provided by the respondent.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, it is evident that no reply had been provided by the respondent, CPIO and AR, Customs and CPIO (Single Member), CESTAT, New Delhi in the matter, which is a grave violation of the provisions of the RTI Act, 2005. The Commission, instructs the CPIO and AR, Customs and CPIO (Single Member), CESTAT, New Delhi to showcause why action should not be taken under the provisions of Section 20 (1) of the RTI Act, 2005 for this misconduct and negligence within 15 days from the date of receipt of this order.
The Commission 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.
The public authority is also advised to re-examine its methodology by which the RTI applications are dealt with in this organization and evolve a robust mechanism for quick disposal of RTI matters in letter and spirit respecting the provisions of RTI Act. It was noted that the Administrative work in the Public Authority office is not being meticulously carried out resulting in poor documentation, record keeping, inefficient handling of RTI applications etc. causing dissatisfaction and disgruntlement amongst the staff and the information seekers. There is an urgent need therefore, to adopt modern technological tools to revamp and revive the administrative setup to instill confidence amongst its employees and provide better working environment. The complaint stands disposed accordingly.Page 3 of 17
Note: Subsequent to receipt of replies to show cause notice, the Dy. Registrar, vide its letter dated 16.08.2017 fixed 04.09.2017 as the next date of hearing in the matter.
HEARING:
Facts emerging during the hearing on 04.09.2017:
The following were present:
Complainant: Mr. R. K. Jain;
Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar, CESTAT, New Delhi; Mr. Rajender Prasad, Ex-CPIO in person; and Shri Kripa Shankar, Assistant Registrar, CESTAT, Hyderabad and Shri. Mr. S. K. Verma, Asst. Registrar, CESTAT, Kolkata through VC;
The Respondent Shri Kripa Shanker vide his oral submissions made during the hearing and the written submission dated 30.08.2017 submitted that the Complainant had filed RTI application dated 26.05.2014 before CPIO Shri Rajender Prasad which was transferred to the Customs and Service Tax Appeal Branch on 27.05.2014 and was received by the Head Clerk of Customs and Service Tax Branch. Similarly the FAA order dated 22.08.2014 was also received by the Head Clerk. It was stated that the sole motive of the Complainant was to unnecessarily trap mistakes, if any made by the officers and highlight it before CIC. It was also stated that the Complainant was the President of Bar Association and regular subscriber of the Tribunal, so he was collecting all orders, cause list and supplementary cause lists of CESTAT for so many years and was regularly filing RTI applications knowing fully well that there was a shortage of staff and huge pendency of matters in CESTAT. A reference was also made to the decision of the Hon'ble Supreme Court of India in CBSE v. Aditya Bandopadhyay and Ors., Civil Appeal No. 6454/ 2011 and Judicial Manual (6.03) of CESTAT, as per which it was duty of the Head Clerk Incharge of the Bench to receive the appeals and applications, etc. sent by the Central Registry with signature and date. After receiving, such appeals/complaints etc the Head Clerk was required to enter such details in the respective registers. It was stated that the Head Clerk did not discharge the assigned duty in this respect and the sheer negligence of Head Clerk came to his notice only after joining CESTAT, Hyderabad and the Complaint filed by the Complainant. It was also submitted that he had requested the concerned Bench Incharge at CESTAT, New Delhi vide letter dated 10.03.2017 for furnishing information on the RTI Application as per the direction of the Commission and had requested the Registrar, CESTAT, New Delhi to take appropriate action against the Head Clerk vide his letters dated 08.03.2017 and 24.03.2017. It was also submitted that the CPIO was the nodal officer of CESTAT, New Delhi relating to RTI matters and it was his duty to collect information from concerned bench and provide to the information seekers and he should not work like a post office. A reference was also made to the decision of the Commission in CIC/SB/C/2015/ 000048-BJ-Final wherein he was warned to exercise due care in future to ensure that correct and complete information was furnished timely to RTI applicant(s) as per the provisions of the Act. It was submitted that he had no Page 4 of 17 malafide intention to defeat the very purpose of RTI act for not furnishing the reply to the Complainant. During the course of hearing, Shri Kripa Shanker also alleged that the Complainant engaged in coercive action against him and referred to an incident of November, 2015 when the Complainant unofficially sought information from him in a certain matter without filing an RTI application which was denied by him.
The Commission was also in receipt of an earlier written submission from Shri Kripa Shanker, Assistant Registrar, CESTAT, Hyderabad, dated 22.03.2017 wherein it was inter-alia stated that a reminder was issued dated 17.12.2014 by CPIO which was received by the Head Clerk on 01.01.2015. The Respondent further stated that the dealing clerk i.e., the Head Clerk had not presented the application on file nor informed him about the pendency of the application, any time. The sheer negligence on the part of the Head Clerk caused the matter to be suppressed for which CESTAT, New Delhi was taking appropriate action on the individual. The said issue however, came to his knowledge only after joining on 14.12.2015 at CESTAT, Hyderabad on transfer from CESTAT, New Delhi i.e., 13.04.2016 after filing the Complaint before CIC. It was also stated that during his tenure at CESTAT, New Delhi he had discharged the additional responsibility of deemed CPIO on various matters, without giving any chance for complaint by anyone except that the subject matter of Complaint was due to sheer negligence on the part of the Head Clerk and had it been put up to him, he would have definitely taken appropriate measures for its disposal despite his busy and hectic schedule without giving any chance for a Complaint. It was added that the Head Clerk was cautioned several times by him to be more careful and provide time bound replies in respect of all RTI matters on priority basis. It was also highlighted that the Complainant had never made any complaint of the subject case during his tenure at CESTAT, New Delhi although he was a regular visitor of CESTAT office and also the President of the CESTAT Bar Association. It was also stated that at a time when he was engaged officially with important assignments, he had received order of transfer from Hon'ble President, New Delhi vide order dated 24.11.2015 wherein he was transferred to the new bench constituted at Hyderabad in public interest with a direction to report for duty at the new Bench at Hyderabad on 14.12.2015 and consequent to his transfer dated 24.11.2015, he seized to be the deemed CPIO of CESTAT, New Delhi and other officer took charge as deemed CPIO in his place.
The Respondent Shri S.K. Verma, referred to his written submission dated 15.04.2017 and stated that the Complainant had filed the RTI application on 28.05.2014 which was transferred to 03 other sections of the Public Authority out of which one section was under his charge vide CPIO letter dated 27.05.2014 which was received by Mr. Satish Kumar, Head Clerk on
02.06.2014. However, this communication was never placed before him. The Complainant had filed an appeal before FAA on 09.07.2014 which turned into order dated 22.08.2014. The said order was again sent by CPIO to 03 Page 5 of 17 sections of the Public Authority and again the order of FAA was served upon Mr. Satish Kumar, Head Clerk and the same was never placed before him. The CPIO had again issued reminder dated 17.12.2014 to 2 sections of the Public Authority out of which one was under his control. The reminder was also placed on the head clerk who did not place it before him. It was further stated that he had been transferred from New Delhi to Chandigarh vide transfer order dated 06.11.2015 and relieved w.e.f., 24.11.2015 and joined CESTAT, Chandigarh. Thereafter he was once again transferred to Kolkata and had been relieved from Chandigarh w.e.f., 17.03.2017 hence he was not aware about the fact that the information was later provided to the Complainant. The Complainant had filed the present Complaint as on 13.04.2016 i.e., subsequent to him being relieved from New Delhi. The Respondent argued that the Complainant had filed the Complaint with an ulterior motive to harass him with a substantial delay in 2016 against an RTI application dated 26.05.2014 and on this ground alone the notice issued by the Commission may be recalled. During the course of hearing a reference was also made to the CWP No. 16241 of 2017 filed by him before the High Court of Punjab and Haryana contesting the decision of the Commission in CIC/SB/C/2015/000049 dated 28.02.2017 on the ground that the CIC had erred in imposing penalty of Rs. 5,000/- on him by holding him responsible for delay of 485 days in providing the information. In the aforesaid matter, Rajan Gupta J. vide its order dated 10.08.2017 had issued a notice of motion for 14.09.2017 to Respondent 2 only. It was further stated that the RTI Application, reminder, Order of FAA were directly received by the Head Clerk and never placed before him. Therefore there was neither intentional obstruction in flow of information nor any malafide in providing information to the Complainant. The Respondent further referred to an year wise table of RTI applications and Appeals filed by the Complainant and submitted that the information seeker filed numerous, voluminous, identical and frivolous application under RTI Act before CESTAT, New Delhi. A reference was also made to several orders of the FAA, CESTAT, New Delhi. It was further stated that the Complainant was getting all the information by way of declaring himself as individual for getting the information whereas he was using such information for printing in a journal for obtaining the Commercial and Financial gains, being editor of the said magazine. It was also stated that CESTAT was running with 70 % of staff and due to Appellant's unwarranted letters, repeated applications/ reminders for voluminous information, the normal working of their office particularly judicial work of the Tribunal was adversely affected causing disproportionate diversion of their resources and detriment to the safety and preservation of their records. In this context, the Respondent also referred to the decision of the Hon'ble Supreme Court of India in Civil Appeal No. 6454/2011 in the case of CBSE v. Aditya Bandopadhyay and Ors. It was also stated that the CESTAT had provided around 500000 pages of information to the information seeker and allowed to inspect more than 3000 files. It was stated that the said act of the Complainant was a blatant misuse of RTI Act for promotion of his business rather than serving social interest. A reference was also made to the decision of the Commission in Page 6 of 17 Anjana G. Doshi v. State Bank of Bikaner and Jaipur, Appeal Nos. 276 and 2077/ ICBP/2008/CIC to submit that the Act had not been framed to take away the time of the Public Authority on frivolous applications. Furthermore, a reference was also made to the decision of the Commission in P. Rajan Sandhi v. Commissioner of Income Tax, Kerala 141/IC(a)/2006 F. No. CIC/MA/A/2006/258 and decision of the High Court of Delhi in Bhagat Singh v. CIC in WP (C) No. 3114/2007. Shri S.K. Verma therefore concluded by arguing that he could not be held liable for the dereliction of duty by the Head Clerk Mr. Satish Kumar and re-iterated that the Complaint under adjudication was time barred. Shri V.P. Pandey also referred to the General Clauses Act, 1897 and argued that the provisions of this Act were applicable in the present instance since the RTI Act was silent on period of limitation in case of complaints.
The Complainant at the outset referred to the order of the High Court of Delhi in R.K. Jain v. CPIO and Anr. W.P. (C) 4152/2017 dated 16.05.2017 wherein notice was issued to the Respondents returnable on 22.09.2017. It was submitted that vide communication dated 26.06.2017, notice was also served on Shri S.K. Verma in this matter. While arguing that the decision of the Commission challenged before the Hon'ble High Court in this matter was the same as the one challenged by Shri S.K. Verma before the Hon'ble High Court of Punjab and Haryana, the Complainant contested that Shri Verma indulged in parallel proceedings by concealing the fact that a petition challenging the Commission's decision was sub-judice before the Hon'ble High Court of Delhi. Shri S.K. Verma acknowledged that the Hon'ble High Court of Delhi was adjudicating the aforesaid writ petition of Complainant. On the issue of period of limitation for filing Complaint, the Complainant referred to Section 18, 19 and 20 and argued that unlike the provisions of Section 19 (3) of the RTI Act, 2005 no limitation period was prescribed in Section 18 or 20 of the RTI Act, 2005 in case of a complaint. It was also argued that the legislature deliberately intended to omit limitation period in case of Section 18 vis a vis' the Second Appeal mechanism. While stating that he had filed RTI application with bonafide intention, the Complainant challenged and dismissed the claims of Shri Kripa Shanker regarding coercive action while seeking information. On the plea of Shri Kripa Shanker regarding duties of Head Clerk prescribed in the Judicial Manual, the Complainant argued that under the RTI Act, 2005 assistance of an officer could only be sought under Section 5 (4) and hence reliance was wrongly placed on the provisions of Judicial Manual. While referring to the order of the FAA dated 22.08.2014, the Complainant submitted that in the order it was mentioned that the CPIO had said that the required information was in process. Hence, no claim of exemption under the provisions of the RTI Act, 2005 could be made at this stage. It was explained that despite orders of the FAA and several reminder letters issued by him, no information was provided to him hence he was compelled to file a Complaint before the Commission. A reference was also made to the decision of the Hon'ble High Court of Delhi in Vivek Mittal v. B.P Srivastava & ors.(WP(C) 19122/2006 Page 7 of 17 dated 24.08.2009 arguing that the CPIO cannot shift the burden on the subordinate officer.
The Commission was also in receipt of a reply dated 30.03.2017 against the written submission of Shri Kripa Shanker, wherein it was stated that the RTI application was transferred to Shri S.K. Verma, Former Asst. Registrar (SM) and CPIO/ Deemed CPIO on 27.05.2014 with direction to provide the information by 12.06.2014. Thereafter, the Complainant issued reminders to Shri S.K. Verma on 02.06.2014, 10.09.2014, 18.10.2014, 02.01.2015 and the CPIO issued reminder dated 04.09.2014, 19.12.2014 with direction to immediately provide information. The CPIO vide letter dated 04.09.2014 also forwarded the copy of FAA order and directed Shri S.K. Verma to provide information in 03 days. The Appellant Authority also in its order dated 22.04.2014 recorded the statement of CPIO that "information is in process"
and directed to provide information within 02 weeks time. Despite so many reminders, Shri S.K. Verma had not bothered to respond to the RTI application. It was further submitted that Shri S.K. Verma in order to cover up deliberate, malafide and persistent obstruction to information had been taking the plea that the Head Clerk/ Dealing Assistant under him had not brought the matter to his notice but such plea had been rejected by the CIC in R.K. Jain v. CPIO, CESTAT, Order No. CIC/SB/C/2015/000049 dated 28.02.2017. The Complainant therefore prayed for imposition of maximum penalty of Rs. 25,000/- on Shri S. K. Verma for causing delay of 1002 days and continuing delay alongwith recommendation for disciplinary action for persistently denying information despite repeated reminders of CPIO and Complainant and time bound orders of FAA dated 22.08.2014. As regards submissions of Shri Kripa Shanker, it was stated that false claims were made by him regarding no knowledge about RTI application and order of FAA and no response was made to the RTI Application despite 08 repeated reminders of CPIO/Complainant and FAA. It was further submitted that Shri Kripa Shanker was appointed on 12.09.2013 to represent CESTAT in all cases before FAA and CIC hence he had knowledge of Appellate proceedings and orders passed by the FAA. While submitting that Subordinate Staff, Head Clerk and Assistants could not be held responsible for delay and denial of information by CPIO/ Deemed CPIO, the Complainant relied on the decision of the Commission in R.K. Jain v. CPIO, CESTAT in CIC/SB/C/2015/000049 dated 28.02.2017 and the decision of the Hon'ble High Court of High Court of Delhi in J.P. Agrawal v. UOI 2013 (287) ELT 25 (Del). It was also stated that a false and self contradictory claim was made by Shri Kripa Shanker regarding caution to the Head Clerk and that transfer of Shri Kripa Shanker to Hyderabad on 14.12.2015 was irrelevant factor since delay of 529 days had already been caused by him before his transfer. It was stated that malafide of Shri Kripa Shanker was established as 8 reminders of CPIO/ Complainant and FAA order dated 22.08.2014 were deliberately ignored by him and information was not provided till date though a period of 1002 days had lapsed since he had sought the information. The Complainant prayed for imposition of penalty and recommendation of disciplinary action against Shri Kripa Shanker and Page 8 of 17 Shri S.K. Verma for deliberate, malafide and persistent obstruction to the information with appropriate compensation to him.
The Complainant vide his reply to the written submission of Shri S.K. Verma dated 26.04.2017 inter alia stated that Shri S.K. Verma had admitted that "there was intentional obstruction in flow of providing the information to the Complainant" and on the face of such admission, the Complaint could not be termed as non-maintainable or malafide. The Complainant also submitted that Shri S.K. Verma made a false claim regarding no knowledge about the RTI Application and FAA order and no response was provided against the Application despite repeated reminders of CPIO/ Complainant and FAA. The Complainant re-iterated his earlier stand that Subordinate Staff, Head Clerk and Assistants could not be held responsible for delay and denial of information by CPIO/ Deemed CPIO. It was also submitted that malafide of Shri S.K. Verma was established as 8 reminders of CPIO/ Complainant and FAA order dated 22.08.2014 were deliberately ignored by him. It was asserted that there were allegations of widespread corruption and malpractices in the CESTAT as it was evident from the Hon'ble Apex Court's decision in the case of Indirect Tax Practitioners Association v. R.K Jain-2010(256) ELT 641(S.C) wherein the Court had described him as a whistleblower and that his reformist actions had resulted in the 163rd report of the Law Commission. It was also submitted that the SC decision in the case of Aditya Bandopadhyay was inapplicable to present complaint as plea of voluminous information was not available when information was already provided or FAA had given time bound directions for providing information. It was further submitted that the RTI regime at CESTAT Delhi had totally collapsed resulting in numerous 2nd Appeals and Complaints against CESTAT at CIC. In response to the claim of the CPIO that he was making a large number of RTI applications and seeking voluminous information, the Appellant referred to a year wise table of the RTI application made by him to CESTAT, New Delhi from 2012 to 2016. A reference was also made to the letter of CESTAT, New Delhi dated 29.07.2016 wherein it was stated that the Former CPIO of the CESTAT Delhi had dismissed 90 RTI Applications against the spirit of the RTI Act and disarrayed the functioning of the tribunal. During the hearing, a reference was also made to the submission filed by the Complainant to the decision of Hon'ble Punjab and Haryana High Court in WP(C) no. 14161 of 2009 dated 10.09.2009, CIC decision in CIC/SG/A/2010 /003279/10796 dated 06.01.2011 and in CIC/SG/A/2010/003342 dated 06.01.2011, in CIC/SG/A/2009/ 002966/6263 dated 01.02.2010, in CIC/SA/A/2014/001673 dated 05.05.2015 and Gujarat High Court decision in Urmish M Patel v. State of Gujarat( SCA no. 8376 of 2010) decided on 10.12.2010 and Delhi High Court decision in Vivek mittal v. B.P Srivastava & ors.(WP(C) 19122/2006 dated 24.08.2009 substantiating his contention regarding statutory burden on CPIO on the issue of imposition of penalty. It was also prayed that a show cause notice be issued against the concerned Head Clerks and imposition of penalty on Shri Kripa Shanker and S.K. Verma for not providing him information despite order of FAA and repeated reminders.
Page 9 of 17On a query from the Commission whether the Head Clerk was indeed the functional authority and made to function as the CPIO considering the scope of duties performed by him as submitted by the Respondents, the Respondent Shri Kripa Shanker stated that all papers received in their department were maintained by the Head Clerk who acted as the custodian of applications. To a query whether any complaint was made against their respective Head Clerks before the competent authority, both Shri S.K. Verma and Shri Kripa Shanker replied in the affirmative and stated that they had made a complaint to the Registrar, Shri A. Mohan Kumar who was the concerned disciplinary authority. However, no satisfactory response was provided regarding the action taken by the Registrar against the Head Clerk. Shri S.K. Verma and Shri Kripa Shanker informed that Mr. Satish Kumar and Mr. Gajender Singh respectively were the concerned Head Clerks in their department at that time.
ADJUNCT DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission was appalled to learn about the malfunctioning and mismanagement of the administrative setup in the CESTAT. The Commission therefore instructs the Registrar, Shri A. Mohan Kumar to explain the details of action taken to address the administrative lapses as pointed out by the respective Respondents during several such hearings, within a period of 15 days from the date of receipt of this order. The Dy. Registrar is instructed to fix a short date of hearing in the matter and serve notice to all concerned parties.
Note: Subsequent to Commission's Order of even number dated 04.09.2017, the Dy. Registrar, vide its letter dated 18.09.2017 fixed 10.10.2017 as the next date of hearing in the matter.
HEARING:
Facts emerging during the hearing on 10.10.2017:
The following were present:
Complainant: Mr. R. K. Jain;
Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar, CESTAT, New Delhi; Mr. Rajender Prasad, Ex-CPIO in person; and Shri Kripa Shankar, Assistant Registrar, CESTAT, Hyderabad and Shri. S. K. Verma, Asst. Registrar, CESTAT, Kolkata through VC;
The Registrar, CESTAT vide its report dated 21.09.2017, forwarded by the Dy. Registrar, in compliance with the order of the Commission dated 04.09.2017 explained the details of the action taken by the Respondent Public Authority to address the administrative lapses as pointed out by the respective Respondents during the hearing. In the said report, it was submitted that the instant RTI application in the matter was filed on Page 10 of 17 26.05.2014, with the CPIO, CESTAT. Thereafter, the CPIO vide its letter dated 27.05.2014 forwarded the application to the Deemed CPIOs in CESTAT, New Delhi with the request to provide correct and para wise information on or before 12.06.2014 to the Complainant with an intimation to him. The Complainant vide his reminder dated 02.06.2014 requested the concerned Deemed CPIOs to provide requisite information. The AR (Excise) vide its letter dated 25.06.2014 provided certain information to the CPIO which was forwarded to the Complainant on 26.06.2014. Thereafter, the Complainant filed an Appeal with the FAA, CESTAT on 09.07.2014 against the deemed refusal of information. The FAA vide its order dated 22.08.2014 noted the submission of the CPIO that the requisite information was in process. Therefore, the CPIO was directed to furnish the information within a period of 02 weeks. The said order of the FAA was forwarded by the CPIO to all the concerned three Deemed CPIOs by letter dated 04.09.2014. Subsequently, the Complainant vide his reminder dated 18.10.2014 to the 02 deemed CPIOs viz. AR(Single Member) and AR( Customs & Service Tax) requested them to provide information. It was thus informed that Mr. S.K Verma was AR (Single Member) and Mr. Kripa Shankar was the AR (Customs and Service Tax) and the Respondents in the present matter. It was further submitted that the CPIO had also sent a reminder to the concerning deemed CPIOs vide letter dated 17.12.2014 to provide requisite information. A final reminder was also sent to them by the Complainant on 02.01.2015 before finally filing of the Complaint before the Commission.
Explaining the present matter, it was submitted that the concerned Deemed CPIOs (Respondent no.02 and 03) responded to the instant RTI application only after the receipt of notice from the Commission. With respect to the submissions made by Mr. Krpia Shankar, AR (Customs & Service Tax), it was submitted that the concerned AR in his written submission dated 22.03.2017 had mentioned the lapses by the Head Clerk in performing his duties which led to suppression of information and that the said issue came before the AR only on 18.04.2016, the time when the Complaint was filed before the Commission. It was clarified that Mr. Kripa Shankar, in his written submission dated 22.03.2017 had no where stated that he had informed the Registrar regarding the inaction on the part of the Head Clerk and which was devoid of any substantial proof in this regard. It was evident that the instant RTI application was forwarded by the CPIO by letter dated 27.05.2014 to the concerned deemed CPIO (herein the Respondents) however, no response was received from their Sections within the stipulated time period. It was argued that on a query from the Commission on 04.09.2017 regarding whether any relevant complaint was made to the competent authority against the Head Clerk, no satisfactory response could be provided by the Respondents regarding the action undertaken by the Registrar in this regard.
It was informed that Mr. Gajender Singh was the Head Clerk in Customs & Excise Branch, CESTAT and that no complaint was received against him by Mr. Kripa Shankar, as reported by him before the Commission, either verbal Page 11 of 17 or in writing by the Registrar. It was contended that the said Respondent should have provided an evidence to prove the same before the Commission. It was clarified that Mr. Kripa Shankar had filed a complaint dated 08.03.2017 against Mr. Gajender Singh, Head Clerk only after he was imposed with penalty in one of the complaints. In the instant Complaint, no lapse had been mentioned on the part of Mr. Gajender Singh but only an allegation had been levelled that there was a nexus between the Head Clerk and the Complainant. One Complaint dated 24.03.2017 was also filed by the said Respondent stating that the concerned Head Clerk had not submitted replies to the RTI matters nor did he bring the matters to the Respondent's knowledge. It was thus argued that there were only allegations by the Respondent without any substantive elaboration. It was further informed, that on receipt of the said complaint against the Head Clerk, the Registrar had issued a memo dated 27.03.2017 seeking explanation from the Head Clerk. In its response, the Head Clerk claimed that every RTI matter was brought in the knowledge of the CPIO and that there was a casual approach undertaken by the Respondent himself in dealing with the RTI matters. However, it was emphasised that none of such deliberations had any connection with the present matter. However, the contention of the Respondent stating that a complaint was reported to the Registrar against the Head Clerk was incorrect.
With respect to the submission made by Mr. S.K Verma in his written submission dated 15.04.2017, it was evident that the same stand was taken by the said Respondent claiming that the reminder was not placed before him by the Head Clerk, Mr. Satish Kumar. It was further submitted that no complaint was made against the concerned Head Clerk to the Registrar and the Respondent could not provide a satisfactory response with regard to the action taken by the Registrar in this regard. It was emphasised that Mr. S K. Verma, AR had never made any complaint to the Registrar for the inaction by the Head Clerk. A complaint was filed with the Registrar by the said Respondent on 15.9.2015 regarding the negligent working attitude of the concerned Head Clerk. The said complaint was filed in the wake of reminder letter dated 3.9.2015 with respect to another RTI application. A separate complaint dated 17.9.2015 was also received from the Respondent with regard to the misbehaviour of Mr. Satish Kumar, Head Clerk, requesting for his transfer and disciplinary action. Accordingly, the Registrar on the same date issued orders transferring the concerned Head Clerk from Single Member Branch to Administrative Section vide its order dated 17.9.2015.
With respect to the undergoing practise in CESTAT it was clarified that the Head Clerk received all the daks and places the same before the concerned ARs of CESTAT for their further instructions. It was also informed that the AR is the custodian of all the files and registers and it was his primary duty to reply to all the correspondents including the RTI applications. The Head Clerk or any subordinate staff were not authorized to enter into any correspondence with the public as the AR being a section head was the sole Page 12 of 17 authority to perform such functions. With respect to the RTI matters, it was explained that the Head Clerk or the Dealing Assistant maintained the records, places the information / documents before the AR which in turn forward the same to the CPIO under his signature. It was further clarified that in a case of inaction on the part of Head Clerks, the work of the respective section of CESTAT could be executed through any other staff available in the section. However, in the present matter, neither Mr. Kripa Shankar nor Mr. S. K. Verma had made any attempt to get the work done through the available staff. It is the duty of the ARs to manage all the affairs in the Registry under his control. Being the immediate supervisory officer, he cannot disown the responsibility of any lapse happening within the section under his control.
It was further submitted that the Commission in a separate order in File No. CIC/SB/C/2015/000049, which dealing with the single issue between the same parties had observed that such a submission was extremely inadequate to justify the continued inaction by the Head Clerk since the Head Clerk was not the custodian of information nor was responsible under the RTI Act and accordingly a penalty of Rs. 5,000/- was imposed on Mr. S. K. Verma, deemed CPIO in the said matter.
It was, therefore, submitted that the statements made by Mr. Kripa Shankar and Mr. S. K. Verma regarding the complaints made by them against the respective Head Clerks to the Registrar with respect to the present RTI application was incorrect and misleading in nature.
The Complainant objected to the non-receipt of any written submission from the Respondent/Registrar and requested the Commission to issue guidelines to the Respondent Public Authority to send a copy of their written submission to the Complainant/Appellant, in future. The Complainant made strong objection to the earlier submission made by Mr. Kripa Shankar on non-receipt of FAA order in the present matter and it was stated that the Registrar vide its administrative order dated 12.09.2013 had designated Mr. Kripa Shankar to appear from the Commission and FAA with assistance from the then CPIO and therefore the contention of the Respondent was incorrect and misleading. The Complainant categorically emphasised on the report submitted by the Registrar dated 21.09.2017, forwarded by the Dy. Registrar dated 22.09.2017 wherein the Registrar had accepted to the incorrect submissions made by the Respondents. A further allegation was made against the false information provided by the AR (Excise), Mr. V.P Pandey in the present matter and it was stated that he had caused obstruction in the flow of information. The Respondent, Mr. V.P Pandey took a strong objection to his impleadment in the present matter since in the previous occasion before the Commission no such submission was put forth by the Complainant and neither the Commission had issued any show cause notice on him under the provisions of the RTI Act,2005. Moreover, it was explained that several records to numerous RTI Applications had been provided to the Complainant from time to time and that it would be wrong Page 13 of 17 on the part of the Complainant to allege denial of information. The Complainant explained that he had very well made him responsible for causing obstruction of information in his Complaint filed before the Commission.
The Respondent, Mr Kripa Shankar vide his oral and written submission dated 09.10.2017, while relying on his previous submissions, informed the Commission that the requisite information had already been furnished to the Complainant in I.D no. 09-098/2014 in total 31 pages on 25.11.2014, which came to his knowledge only after recently inspecting the relevant records at CESTAT, Delhi. Moreover, with respect to the Report filed by the Registrar before the Commission, it was explained that the memo was issued against the erring Head Clerk only after a complaint was made by him in this regard.
Moreover, the Respondent, Mr. S.K Verma, while relying on his previous submissions categorically stated that the report filed by the Registrar did not pertain to the present RTI application and there was no malafide on his part in causing obstruction in the flow of information. Furthermore, it was informed that the Registrar in his report had affirmed to the Complaint made by him against the concerned Head Clerk on 03.09.2015 and 17.09.2015, which proved that he had timely complained to the Competent Authority regarding the negligent working attitude of the Head Clerk. The Respondent informed the Commission that a matter had been challenged by him against the decision of the Commission in File no CIC/SB/C/2015/000049 dated 28.02.2017 before the Hon'ble Punjab & Haryana High Court in WP(C) no. 16241 of 2017 and that the issues involved in this matter were similar to the one challenged by him before the Hon'ble Court and the next date of hearing in the matter was scheduled on 13.11.2017. In the aforesaid matter, S. K. Verma Vs. R. K. Jain and Ors., the Judge vide its order dated 10.08.2017 had issued a notice of motion for 14.09.2017 to Respondent 2 only. Moreover, it was submitted that the Complainant had withdrawn his miscellaneous Application filed before the Delhi High Court in the said matter.
The Respondent argued upon the proposition of making Complainant a necessary audience in the penalty proceedings before the Commission and submitted that as per the Delhi High Court decisions, the Complainant had no basic right of being a party to the show cause proceedings before the Commission and it was as per the discretionary power of the Commission to allow the Complainant to take part in such proceedings. A reference was made to the following observations of the High Court of Delhi in its judgment dated 9.1.2012 in Ankur Mutreja vs. Delhi University [LPA 764 /2011] wherein it was held as under:
"The Act does not provide for the CIC to hear the complainant or the appellant in the penalty proceedings, though there is no bar also thereagainst if the CIC so desires. However, the Page 14 of 17 complainant cannot as a matter of right claim audience in the penalty proceedings which are between the CIC and the erring In formation Officer."
Similarly, THE HIGH COURT OF DELHI AT NEW DELHI in W.P.(C) 11065/2015 & C.M.No.325/2016 ( date of decision 12th January, 2016 had held as under:
"5. In the opinion of this Court, the formation of opinion under Section 20 (2) of the RTI Act is in the exercise of supervisory powers of CIC and not in the exercise of the adjudicatory powers. This Court is also of the view that the information seeker has no locus standi in penalty proceedings under Section 20 of the RTI Act.
7. This Court is of the view that the aforesaid law is applicable to not only proceedings under Section 20 (1) but also under Section 20(2) of the RTI Act. Consequently, this Court is of the opinion that the CIC was well entitled in its discretion not to direct initiation of the disciplinary proceedings under Section 20 (2) of the RTI Act, especially, when the information sought by the petitioner had been directed to be provided to him."
The Appellant affirmed to the decision of the Hon'ble Delhi High Court made in this regard and stated that the Commission had full discretionary power to allow Complainant in the penalty proceedings.
Hearing all the parties and on perusal of records, the Commission noted the Report filed by the Registrar dated 21.09.2017, wherein it had been submitted that the Head Clerk was not the custodian of information under the RTI Act,2005 and that the plea under taken by the Respondents in this regard was incorrect and misleading. The Commission therefore takes a serious view of the lackadaisical/callous attitude adopted by the Respondents in not responding to the RTI application within the stipulated time period. There is complete negligence and laxity in the Public Authority in dealing with the RTI applications and 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.
In this context, the Commission referred to the decision of the Hon'ble High Court on the similar issues, wherein the High Court of Delhi had upheld the decision of the Commission in W.P.(C) 8315/2017 & CM No. 34196/2017 in KRIPA SHANKER v. LD CENTRAL INFORMATION COMMISSION AND ORS (Date of decision:18.09.2017) had held as under:
"14. In the present case, the FAA had already passed an order for W.P.(C) 8315/2017 disclosure of information. Despite the same, the petitioner had not ensured that the information was supplied within the stipulated time. The conduct of the petitioner was examined and the CIC found that there is no reasonable justification for the petitioner's conduct.Page 15 of 17
15. This Court finds no infirmity with the view expressed by the CIC. The petition is, accordingly, dismissed."
The Commission took note of similar matters placed before it in CIC/KY/A/2016/000038-BJ-Final and CIC/SB/A/2016/000704-BJ-Final both dated 19.07.2017 wherein the Respondent, Mr. Kripa Shankar had taken a plea of Head Clerk being the person responsible for the delay caused in providing information and the same was rejected by the Commission and penalty was imposed on him u/s 20 of the RTI Act, 2005.The said decision of the Commission was also upheld by the Hon'ble High Court in W.P.(C) 8315/2017 & CM No. 34196/2017 in KRIPA SHANKER v. LD CENTRAL INFORMATION COMMISSION AND ORS (Date of decision:18.09.2017). Therefore, in the light of the documents available on record proving the negligence of the Respondents, Mr. Kripa Shankar and Mr. S.K Verma are instructed to be cautious in exercising due care in discharging their responsibilities under the provisions of the RTI Act, 2005. In the background of the aforesaid cases, it is evident that the implementation of the RTI Act, 2005 is not carried out in letter and spirit by the said Respondent. In this context, the Commission would like to place its reliance on the decision of the Hon'ble Delhi High Court 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."
ADJUNCT DECISION-I:
Keeping in view the facts of the case and the submission made by both the parties, the Commission would like to place on record its displeasure to the CPIO over the casual manner in which the RTI application had been dealt with by the Respondents. This is evident from the report of the Registrar, CESTAT presented before the Commission in which he himself had pointed out several lapses and excuses made by the concerned Deemed CPIOs during the previous hearings.
The Respondents are therefore, warned to be extremely careful and vigilant in handling RTI petitions in future, failing which the Commission would initiate penal action under Section 20(1) of the RTI Act, 2005. The Page 16 of 17 Commission advises the Respondent Public Authority to take a serious view of the similar lackadaisical/callous attitude adopted by the CPIOs/Deemed CPIOs and to strengthen the disposal of RTI matters keeping in view the letter and spirit of the RTI Act, 2005.
The Public Authority is also advised to re-examine the methodology by which the RTI applications are dealt with in their office and evolve a robust mechanism for quick disposal of RTI matters in letter and spirit respecting the provisions of RTI Act. 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.
The showcause proceedings against the Respondent stands dropped. The matter stands closed.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Copy to:
1. The Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi - 110001 Page 17 of 17