Central Information Commission
Anuj Arora vs Ministry Of Power on 23 January, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के य सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मु नरका
Baba Gangnath Marg, Munirka
नई द ल , New Delhi - 110067
File No : CIC/POWER/A/2019/116975
Anuj Arora ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Energy Efficiency Service Limited (ESSL),
5th & 6th Floor, Core-3,Scope Complex,
Lodhi Road, New Delhi- 110003 .... तवाद गण /Respondent
Date of Interim Decision : 14/12/2020 Date of Show Cause Hearing : 18/01/2023 Date of Final Decision : 18/01/2023 INFORMATION COMMISSIONER : Saroj Punhani Relevant facts emerging from appeal: RTI application filed on : 29/10/2018 CPIO replied on : 30/11/2018 First appeal filed on : 08/01/2019 First Appellate Authority order : 07/02/2019 2nd Appeal/Complaint dated : 11/04/2019
The instant matter is being heard in pursuance of the following interim decision 1 dated 31.08.2021.
".....O R D E R
1. The appellant filed an application under the Right to Information Act, 2005 (RTI Act) before the Public Information Officer (PIO) Energy Efficiency Service Limited, 1st floor, PDIL Bhawan, A-14, Sector-1, Noida, Uttar Pradesh-201301. The appellant seeking information on 20 points pertaining to the NIT/Bid document no. EESL/06/2016- 17/SLNP/Varanasi/Heritage Lighting/1617051 dated 15-2-2017, including inter alia:-
1) Please provide LM-79 test reports of each type of decorative Luminaire purchased against this NIT.
2) Please provide quantity wise date of purchase of all items purchasedagainst this NIT.
3) Please provide details of all payments made to successful bidder against the material purchased along with the copy of measurement book in which measurement has been booked to raise the running/final bills duly certified by the concerned officer.
4) Please provide date wise detail of material purchased showing quantity of each item purchased, its price and taxes charged by the supplier on each item.
5) Please provide test report of luminaire of each wattage as per IS:16107 of NABL accredited lab as per technical conditions of NIT.
6) Please confirm if PVC insulation is provided inside the pole pipe at the junction box as required then what is the length of pvc insulation provided?
7) Please provide test report of dry film thickness test of each lot purchased as per requirement in section 4(Technical & SCC) page 21 of 41.
8) Please provide structure stability test report required as per requirement in section 4 (Technical & SCC), etc.
2.An interim reply dated 26.11.2018 was given by CPIO wherein it was stated that RTI application would be responded within 9 days. On 30.11.2018, CPIO provided point-wise reply to the appellant. Being dissatisfied with the reply of CPIO, the appellant filed the first appeal dated 08.01.2019 before the First Appellant Authority (FAA). The first appellate authority ordered on 07.02.2019 and disposed of his first appeal. He filed a second appeal 2 u/Section 19(3) of the RTI Act before the Commission on the ground that requisite information has not been provided to him and requested the Commission to direct the respondent to provide complete and correct information.
Hearing:
2. The appellant attended the hearing through audio-call. The respondent, Shri Jaspal Singh Aujla, CPIO attended the hearing through audio-call.
3. The respondent submitted their written submissions dated
08.12.2020 and the same has been taken on record.
4. The appellant reiterated the contents of his RTI application and submitted that complete and correct information has not been provided to him by the respondent on his RTI application dated 29.10.2018. The appellant further submitted that the respondent has wrongly denied the information under Section 8(1)(d) of the RTI Act. On point nos. 1, 7 and 8 of RTI application, the appellant submitted that the test reports furnished by the respondent were not in consonance to the information sought in his RTI application. With regards to point nos. 2, 3, 4, 5, 17, 18 and 19, the appellant submitted that the sought information was wrongly denied by FAA by invoking section 8(1)(d) of the Act. On point no. 10, the appellant contended that CPIO only informed that material of cover glass is of poly carbonate, however no test report in support was provided by the CPIO. The appellant further submitted that copy of samples as sought by him on point no. 20 of the RTI application has not been provided to him. The appellant requested the Commission to direct the CPIO to provide the complete information as sought in the RTI application.
5. The respondent submitted that RTI application was point-wise replied and available information on receipt of requisite fee, was furnished to the appellant by CPIO and FAA vide letters dated 30.11.2018 and 07.02.2019 respectively. Upon being queried to the respondent regarding the availability of information on point no. 5 of RTI application, the respondent submitted that the information sought is not readily available in a compiled form and thus, the same cannot be provided to the appellant. On query from the Commission, the respondent submitted that Shri Santosh Thakur was the deemed CPIO from whom the information was collected.
3Decision:
6. The Commission, after hearing submissions of both the parties and after perusal of records, observes that information provided by the respondent on point nos. 1 and 8 of the RTI application dated 29.10.2018 to the appellant is not in consonance with the information sought by the appellant in his RTI application. The appellant contended that the respondent had furnished test reports of some different product which is not related with the Bid no. as mentioned above. The Commission further observed that clear and specific reply/information has not been provided by the respondent to the appellant on point nos. 5 and 7 of his RTI application. The Commission further observed that the respondent has wrongly denied the information to the appellant on point no. 20 of hisRTI application. The appellant has sought specific information on point no. 20 regarding the copy of samples which can be duly furnished under the RTI Act.
7. The Commission is of the view that the deemed CPIO has willfully withheld the information on point nos. 1, 5, 7, 8 and 20 of RTI application dated 29.10.2018 and has contravened the provisions of RTI Act. The Commissions takes a serious note of this lapse and issue show cause notice to the deemed CPIO Shri Santosh Thakur who has obstructed the information and has given misleading reply/information to 4 the appellant. The deemed CPIO should show-cause in writing that as to why penalty should not be imposed on him for contravening the provisions of the RTI Act, within a period of 15 days from the date of receipt of this order.
8. The Commission further directs the respondent to give revised, categorical and correct reply/information to the appellant, as per the documents available on record, on point nos. 1, 5, 7, 8 and 20 of RTI application dated 29.10.2018. The respondent should furnish information to the appellant on point no. 20 of the RTI application after taking requisite photocopy charges from the appellant and the appellant should also confirm the details of samples which he wants from the CPIO, within a period of 15 days from the date of receipt of this order.
9. The matter is adjourned for the show-cause hearing. The deemed CPIO and the present CPIO is directed to participate in the hearing on the next date of hearing for compliance of this order. The Deputy Registrar is directed to fix hearing in the matter after 15 days. Fresh notice of hearing be issued to the parties. The respondent is directed to serve a copy of this order to the deemed CPIO and ensure his presence on next date of hearing...."
Relevant facts emerging during hearing on 18.01.2023:
The following were present:-
Respondent: Santosh Kumar Thakur, CGM (CP) & Deemed CPIO along with Jaspal Singh Aujla, present CPIO present through intra-video conference.
At the outset, Santosh Kumar Thakur, Deemed CPIO reiterated the submissions made by him in writing on 21.01.2021 in response to the directions contained in the averred Interim Decision stating as under:
"...1. All the information sought in the subject RTI application pertain to Street Lighting Project in Varanasi (particularly Heritage Lighting), Uttar Pradesh.
2. Undersigned had joined EESL in July'2017 and was posted in Street Light National Program (SLNP) vertical in February/March 2018, designated as National Program Manager (NPM), and was formally assigned the roles and responsibilities 5 vide IOM ref. EESL/C00/10M/18-19/2 dated 01.05.2018 (copy enclosed at Annexure-I for reference) issued by the Chief Operating Officer (COO) of EESL, Mr Venkatesh ()wive& It is evident from the above IOM that undersigned was responsible only for certain states, excluding inter aka, Uttar Pradesh.
3. It may please be noted that a separate 10M Ref. EESL/C00/10M/18-19/3 dated 01.05.2018 (copy enclosed at Annexure-I for reference) was issued by the COO regarding SLNP projects in Uttar Pradesh. As per the above 10M. Mr. Tarun Tayal, AGM (Tech), will continue as Regional Head of UP. For SLNP, he will report functionally and administratively to COO, EESL. For all other verticals, he will report functionally to respective NPMs and administratively to COO, EESL. ii) Mr. Alok Mishra, Sr. Manager (Tech), is nominated as Project head for SLNP Eastern UP, will functionally and administratively report to Mr. Tarun Tayal, AGM(Tech). It is evident from above that only for SLNP projects the Regional Head, who is overall in-
charge for the assigned state for all business of [ESL. would report, both functionally and administratively, to the COO.
4 There were minor modifications made in the states allocated to me vide 10M ref. EESL/2018- 19/SLNP/Reorg/I, dated 27.08.2018 (copy enclosed at Annexure-11 for reference), however there was no change in the organization structure pertaining to U P and the COO Mr. V. Dwrvedi remained the overall in-charge for SLAP projects in the state during the subject RTI.
5 It would be pertinent to mention here that the then COO, Mr. Venkatesh Dwivedi, was himself associated with SLNP Projects, including the Heritage lighting project in Varanasi, to which the RTI queries pertains, and was involved during the procurement and execution of the project.
6 As evident from above, undersigned was never associated with the Heritage lighting project in Varanasi, neither during procurement nor during execution, and was also not in-charge for the SIND projects in U P. during the period in which response to the subject RT1 were furnished. In view of above it was not possible for me to have any information/details about the material procured, actually supplied and installed at site. Further, I was not supposed to be custodian of information like measurement book, test reports, date of purchase, details of payments made, quantity and price of material purchased, etc., pertaining to a project in which I was neither involved nor was responsible for.
7 It would also be pertinent to mention here that the PIO, Mr J.S Aujla, was also 6 well conversant with SLAP projects, owing to his stint in SLAP department before taking up the assignment as PIO, and thus was quite familiar with the organizational structure in the SLNP as well as the technical aspects of the Street lighting. In view of the above he was well aware about the custodian of the information sought in the subject RTI application. 8. The PIO, Mr Aujla, after receiving the subject RTI and the subsequent appeal, rightly forwarded them to the COO, Mr. Dwivedi, as primary respondent, vide 10M ref. (ESL/2018-19/RTI/233 dated 01.11.2018 and IOM ref. EE51/201819/RT1/253 Appeal, dated 11.01.2019, respectively (copy enclosed for reference at Annexure-Ill). Undersigned was mentioned in the above 10Ms as secondary recipient, by virtue of my designation as NPM(SLNP) 9 It would be relevant to clarify here that though the designation NPM(SLNP) may give a impression that the designated official will be in charge of SLNP project across the country, but as per the norms prevalent in [ESL, and owing to large size of projects in each states, the NPM was responsible only for states allocated to him, through proper orders issued by the Competent Authority from time to time, and usually had no say in the affairs of other states under the charge of other officials 10 Mr. V. Dwivedi, was the overall in-charge of SLNP projects in U.P., as well as the procurement and Quality departments of EESL. Further, the Heritage Lighting project in Varanasi was executed under his supervision and he was involved during the procurement and implementation of the project. In view of above it can be reasonable concluded that being closely associated with the above project, he was privy to the information related to the same, or at least will be aware about the depository of various information/documents related to the project. Thus Mr. V. Dwivedi was the de-facto Deemed PIO for the subject RTI. It is also noteworthy that the Procurement and Quality departments were also reporting to Mr. V. Dwivedi as the then COO of EESL Therefore the subject RTI query and its subsequent reminders/ appeal, were rightly addressed to him as primary recipient.
11. Since Sh. J.S.. Aujla , the PIO had also transferred the subject RTI application to undersigned, apart from Sh. Venkatesh Dwivedi, and was consistently pressing for arranging an early reply, undersigned, in keeping up with the true spirit of the RTI act, gathered the information from the Project Head - (eastern U.P.), Sh. Alok Mishra and furnished the same to the PIO Sh. J.S.Aujla, along with all the annexures/reports/documents as received from him.
12 As I was not associated to the SLNP project in Varanasi in any way, it was not possible for me to check the veracity of the data received and thus was constrained 7 to furnish the same, as It is, to the PIO.
13. From the above, it can be concluded that the undersigned, by virtue of not being the depository of the information sought in the subject RTI, can not be termed as Deemed PIO and was only acting in good faith by gathering, and passing on the received information to the PIO.
14. Further, as there was no retention of the information at my end, the allegation that I have wilfully withheld/obstructed the information, or have given misleading reply/information to the appellant, is not correct and thus I have not contravened the provisions of the RTI act.
15. Further, the draft reply to the subsequent appeal filed by the applicant was prepared by the office of PIO, which was duly reviewed by Sh. Venkatesh Dwivedi and then submitted to the Appellate Authority (AA) for approval and issuance. It may be reasonably assumed that had there been any gaps/lacuna/mistake noticed by Mr. V. Dwivedi in the information furnished by the undersigned in the reply to the subject RTI, he could have got the same rectified while formulating the draft reply to the appeal. It may be noted that undersigned was neither involved, nor was kept in loop while drafting the reply which was furnished to the appellant.
16. Considering the above factual details it can be concluded that all acts done by me w.r.t. the subject RTI were completely in good faith and there was no wilful intention to withhold any information available with me or to give misleading information to the applicant. It may also not be out of place to mention here that, had there been any lapses in the reply furnished against the RTI application, the same could have been corrected in the reply given against the appeal which was drafted under the guidance of the actual custodian of information. In view of the facts laid out above, I hereby request you to favourably consider my prayer to exonerate me from the charges of wilfully withholding the information / giving misleading reply/information to the appellant, levelled on me vide your order dated 14.12.2020. Also, presently I am not associated with the Street Lighting department, and thus the PIO-EESL may be directed to arrange for any further information as required by the applicant of the subject RTI..."
While summing up with his arguments, the deemed CPIO tendered his unconditional apologies confessing that the initial reply/ information provided to the Appellant was in fact, partially incorrect as it was forwarded in the same manner as received from their field formation/ concerned department without 8 analyzing or going through its veracity. He further explained that however, upon receipt of the abovementioned directions of Hon'ble CIC and in compliance of the same; a revised reply along with relevant available information against points no. 1, 5, 7, 8 and 20 was provided to the Appellant on 15.07.2021. He further clarified that at the time of receipt of the RTI Application; he had just resumed the charge of the deemed CPIO and was also not well conversant with the protocols to be followed while dealing with RTI matters; however his conduct was bonafide and his intention was certainly not to withhold any information sought. He undertakes to exercise due diligence while responding to RTI Applications in future. He also facilitated a detailed discussion on the role and functioning of their organization that various projects are implemented by them through out the country and they are carrying out several international energy projects as well.
Decision:
Taking into consideration the abovementioned explanation/submissions of the deemed CPIO during hearing, the Commission finds no scope of prolonging the show cause proceedings initiated vide averred decision, for lack of malafide on his part.
In this regard, a reference may be had towards a judgment of the Hon'ble Delhi High Court in the matter of Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. [W.P.(C) 11271/2009] dated 01.06.2012 wherein it was held:
" 61. 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...."9
Similarly, an observation of the Hon'ble Delhi High Court in the matter of Bhagat Singh vs. CIC & Ors. WP(C) 3114/2007 is also relevant to point out here which reads as under:
"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."
Having observed as above, the show cause proceedings against Santosh Kumar Thakur, Deemed CPIO are hereby dropped with a strict warning that such lapses in future will attract necessary penal action as per the RTI Act, 2005.
ADVISORY However, it will be in the best interest of Respondent Public Authority to issue a circular/standing orders in the spirit of RTI Act as regards the standard protocols to be followed by the CPIO's prior to responding to RTI Applications of such strategic importance in future and also to ensure that they ascertain the authencity/ veracity of the information sought from the concerned department/ Public Authorities at the first instance before sharing with the applicant in the spirit of RTI Act. This will also relieve the public authority of such kind of situations . In pursuance of the aforesaid advisory, a copy of this order is marked to the Chairman, ESSL to take necessary action on the abovementioned order.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहा न)
Information Commissioner (सूचना आयु त)
10
Authenticated true copy
(अ!भ मा#णत स$या%पत त)
(C.A. Joseph)
Dy. Registrar
011-26179548/ [email protected]
सी. ए. जोसेफ, उप-पंजीयक
दनांक /
To
The Chairman,
24 Shambavi Building 23rd Main Marenahalli
JP Nagar 2nd Phase Bengaluru - 560078
--Copy marked to take note of the observation and for necessary action 11