Central Information Commission
Rajeev Bhardwaj vs Ministry Of New And Renewable Energy on 7 September, 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/MNRES/C/2022/111302
Rajeev Bhardwaj ....िशकायतकता /Complainant
VERSUS
बनाम
CPIO,
Ministry of New & Renewable
Energy, RTI Cell, Block No. 14,
CGO Complex, Lodhi Road,
New Delhi- 110003 ... ितवादीगण /Respondent
Date of Hearing : 06/09/2022
Date of Decision : 06/09/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from complaint:
RTI application filed on : 08/12/2021
CPIO replied on : 13/01/2022
First appeal filed on : 21/01/2022
First Appellate Authority's order : 17/02/2022
2nd Appeal/Complaint dated : 09/03/2022
Information sought:
The Complainant filed an online RTI application dated 08.12.2021 seeking the following information:
"............In Note No.32 (page 15) MNRE has referred to DPE DO No. 5(1)/2000-GM dated 5.4 2010 as placed at (P.342-381/c), in this regard Please disclose the Action Taken Details of the MNRE Nodal Officer taken as per the Para 6.7 of the said DPE DO No. 5(1)/2000-GM dated 5.4.2010 in respect 1 of APAR of the Applicant (Rajeev Bhardwaj Ex-Director/HR SEC!) for FY 2016-17, 2017-18, and 2018-19."
The CPIO furnished a reply to the complainant on 13.01.2022 stating as follows:-
"Vigilance Section of MNRE is not Nodal Officer/Custodian of APARs of SECI Employees."
Being dissatisfied, the complainant filed a First Appeal dated 21.02.2022. FAA's order dated 17.02.2022 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the complainant approached the Commission with the instant Complaint on the following grounds:
"The CPIO and FAA both has informed that the information is not available with the Vigilance Section of the MNRE. lt is not the case that information is not available within the Custody of the Nodal Officer.
Therefore, the reply appears to be given by unconnected CPIO (Vigilance Section) and not by the relevant CPIO with an intent to mislead or give false information.
The obstruction and/or destruction of the APAR has caused a cumulative loss of around Rs 15 lakhs plus towards short payment and/or non-payment of variable salary of Performance Related Pay (PRP) to the appellant, and the appellant has been deliberately put to financial loss, hardship, and harassment. The Appellant is a high-net-worth tax-payers and thus eligible for compensation under Section 19(8)(b) for this deliberate and designed obstruction and/or destruction of record for causing financial loss."
Relevant Facts emerging during Hearing:
The following were present:-
Complainant: Present through intra-video conference. Respondent: N P Shukal, US & CPIO present through intra-video conference.
The Complainant submitted on the lines of the grounds of the Complaint, relevant extracts of which is reproduced hereunder:
"1. The request is specific with regard to action taken by the Nodal Officer in term of DPE DO No. 5(1)/200-GM dated 05.04.2010 as relied upon in Note No. 32 2 of e-file No. 123/27/2018-NSM (Computer No. 230529) Page No. 15, copy of which was attached with the RTI Request.
2. The request pertains to Rajeev Bhardwaj, Ex-Director (HR) SEC! and appellate herein who was a Board Level Executive and whose APARs custodian in terms of the referred DPE OM as relied upon by MNRE in the referred File Computer No. 230529 is nominated Nodal Officer at Joint Secretary Level.
Therefore, it is wrong to state that MNRE is not the custodian of APARs of Board Level Executive of SECI.
3. The request pertains to details of performance of mandatory duty by the Public Servant (Nodal Officer) as prescribed by Government under the DPE OM dated 05.04.2010. The information requested for disclosure will serve a larger public interest as it pertains to performance records maintenance and management of Public Servants.
4. CPIO has not passed any signed order and thus violated the statutory duty enshrined upon him under the RTI Act.
5. The process adopted by the Public Authority (MNRE) is dilatory and reflect intent of delaying the delivery of information and obstruct and harass the applicant/appellate from getting bonafide information under the RTI Act.
xxx GROUNDS FOR COMPLAINT
1. While Appellate was the Director (HR) with SECI, the Nodal Officer in MNRE has dealt, completed, and maintained the APARs of FY 2013.14, 2014 15, and 2015-16 and kept in his custody. Therefore, APARs of FY 2016-17, 2017-18, and 2018 19 not being available is misleading and false.
2. It is highly improbable that APARs of Board Level Executives of Central Public Sector Enterprises such as Solar Energy Corporation of India Ltd (SECI) and iREDA Ltd under the MNRE which are required to maintained and ensured to be kept under the custody of the Nodal Officer in the level of Joint Secretary of the administrative Ministry is not available.
3. Perusal of Note#32 of e office file Computer No. 230529 reflect that MNRE is conscious of the mandated duty enshrined upon them for Completion and Upkeep of APAR of Board Level Executive of CPSEs vide DPE guidelines dated 5' 3 April 2010 which inter alia includes SECI under their administrative control, and the requested information is an outcome of public function performed by the Nodal Officer in the level of Joint Secretary in MNRE. Therefore, there is designed refusal to give access to the requested information. ..."
The CPIO reiterated the reply provided to the RTI Application and expressed his inability to state as to who will be the concerned record holder in the matter.
Decision The Commission at the outset rejects the prayer for compensation to be paid under Section 19(8)(b) in the matter as the Complainant has filed the instant matter under Section 18 of the RTI Act. In this regard, the attention of the Complainant is drawn towards a judgment of the Hon'ble Supreme Court dated 12.12.2011 in the matter of Central Information Commissioner vs. State of Manipur wherein it was held as under in the context of the provisions of Section 18 & 19 of the RTI Act:
"37. We are of the view that Sections 18 and 19 of the Act serve two different purposes and lay down two different procedures and they provide two different remedies. One cannot be a Substitute for the other...."
Now, as regards the reply of the CPIO and the information sought for by the Complainant, the Commission is baffled to note the prima-facie evasive stance of the Respondent office as the reply of the CPIO does NOT suggest that the record is unavailable in its entirety with MNRE. Moreover, the record that is under contention is the APAR of the Complainant which is a vital record, yet the reply of the CPIO does not clarify whether the specific action taken details with respect to the APAR of the Complainant is not available or the APAR as a whole is unavailable. It is also perturbing to note that the FAA has merely endorsed the reply of the CPIO without making any effort to assist the Complainant in securing access to 'information' when this information was about his own 'APAR' and despite there being the enabling provisions of Section 6(3) and 5(4) of the RTI Act. The callous approach of the FAA in the matter is deemed as a gross disregard to the letter and spirit of the RTI Act. For the sake of clarity, Section 6(3) & 5(4) of the RTI Act is reproduced hereunder:
"5. Designation of Public Information Officers.--4
(4) The Central Public Information Officer or State Public Information Officer, as the case may be, may seek the assistance of any other officer as he or she considers it necessary for the proper discharge of his or her duties."
xxx "6. Request for obtaining information.--
(3) Where an application is made to a public authority requesting for an information,--
(i) which is held by another public authority; or
(ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer: Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application."
Having observed as above, the Commission in exercise of the powers under Section 18(2) of the RTI Act deems it fit to inquire into the matter. In doing so, the FAA, MNRE is directed to inquire into the availability of the Complainant's APAR and the specific information as sought for in the instant RTI Application with MNRE and its subsidiaries as a whole and send a detailed report to the Commission enlisting the findings of the inquiry and the resolution in terms of recorded information that can be offered to the Complainant to pursue his grievance. The said inquiry shall be conducted by the FAA or by any other designated officer equivalent or not below the rank of FAA.
The abovesaid inquiry report shall be sent to the Commission by the FAA within 30 days from the date of receipt of this order.
The Complaint is disposed of accordingly.
Saroj Punhani(सरोजपुनहािन) Information Commissioner (सू सूचनाआयु ) 5 Authenticated true copy (अिभ मािणतस यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ,उप-पंजीयक दनांक / Date Copy to:
First Appellate Authority Ministry of New & Renewable Energy, RTI Cell, Block No. 14, CGO Complex, Lodhi Road, New Delhi- 110003
--(For timely compliance of above directions) 6