Central Information Commission
Mr. Radhey Shyam Aggarwal vs Govt. Of Nct Of Delhi on 17 November, 2009
CENTRAL INFORMATION COMMISSION
Club Building, Opposite Ber Sarai Market,
Old JNU Campus, New Delhi - 110067.
Tel: + 91 11 26161796
Decision No. CIC/SG/A/2009/002075/5158Penalty
Appeal No. CIC/SG/A/2009/002075
SHOWCAUE HEARING:
Appellant : Mr. Radhey Shyam Aggarwal
S/o Late Kallu Mal
R/o 2808, Shanker Gali Bazar Sita Ram,
Delhi-11006.
Respondent : Mr. Arun Kumar Mishra
Dy. Commissioner (VAT)
Govt. of NCT of Delhi
Office of Deputy Commissioner
Deptt. of Trade and Taxes, Room No. 1201,
12th Floor, Vyapar Bhawan,
New Delhi-11002.
RTI application filed on : 15/06/2009
PIO replied : 08/07/2009
First appeal filed on : Not enclosed
First Appellate Authority order : 19/08/2009
Second Appeal filed on : 26/08/2009
Information sought:
Copy of NOC /Affidavit of Sh. Radhey Shayam Aggarwal from the file of M/s Aggarwal Traders Tin No. in Tin/ Vat no. 07090325518 applied by Arun Kumar Gupta from Ward No. 19.
Reply of PIO:
"It is to inform you that as per section 98 of DVAT Act such information is prohibited, the same can not be provided under RTI ACT."
The First Appellate Authority order:
"I have gone through the reply given by the PIO, and do not find any infirmity in the same. It is true that the PIO is prohibited under Section 98 of the DVAT Act to divulge the information to a third party. Rather I would like to add M/s. Aggarwal Traders has a fiduciary relationship with the Department of Trade & Taxes. And as per Section 8 of the RTI Act 2005, the PIO is not obliged to give any information relating to the said dealer to a third party (in this case the Appellant)."
Grounds for Second Appeal:
• The PIO's replied is illegal.
• The FAA has wrongly upheld the response of the PIO by holding that the PIO is prohibited under section 98 of the DVAT Act to divulge the information to a third party and that M/s Aggarwal traders has a fiduciary relationship with the Department of Trade & Taxes.
Relevant Facts emerging during Hearing:
The following were present:
Appellant: Mr. Radhey Shyam Aggarwal;
Respondent: Mr. N.S.Bhoria, Public Information Officer & VATO;
Mr. Arun Kumar Mishra Dy. Commissioner Zone-III and the then PIO; The PIO and FAA have both failed to discharge their duties under the RTI Act. The PIO without any application of mind has refused to give the information claiming that the VAT action does not permit to give the information. In the instant case the Appellant is a 80 year old senior citizen had asked for a copy of an affidavit which he alleges was falsely given in his name to the Department. The PIO refuse to give him the information purportedly given by him. The FAA in what appears to be collusion to deny and harass the citizen suddenly claimed that the department gets the information in a fiduciary relationship. The department obtains the information in fulfillment of regulatory requirements but the FAA apparently would like to claim other relationships with people who prevent false affidavits. This is belatently case where without any reasonable cause information has been denied to an old person about the affidavit claim to have been given by him Decision dated 15 October 2009:
The appeal was allowed. The PIO Mr. N.S.Bhoria was directed to provide the information to the Appellant before 30 October 2009. The Commission issued a show cause notice to the then PIO Mr. Arun Kumar Mishra for not supplying the complete, required information within 30 days as required by the law. He was directed to appear before the Commission on 17 November 2009 at 12.00 pm alongwith his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20 (1).
Relevant Facts emerging during Show Cause Hearing on 17 November 2009:
The following were present:
Appellant: Appellant Respondent: Mr. Arun Kumar Mishra Dy. Commissioner (VAT) and the then PIO The Respondent shows that the information has been provided to the appellant on 22/10/2009. He has brought written submissions in which he claims that he did not realized that the applicant Mr. Radhey Shyam Aggarwal was asking for information about an affidavit supposed to have been filed by him. He states that he refused to provide the information on 08/07/2009 on the ground that Section 98 of the DVAT Act does not permit such information to be given. He also states that the FAA also held that the information was exempt from disclosure under Section 8(1)(e) of the RTI Act. Since he held that the information had been provided in fiduciary relationship and it was third party information.
The Commission asked the PIO how Mr. Radhey Shyam Aggarwal's affidavit could be refused to him. It is also apparent that the FAA has been very irresponsible since he had noted that the Appellant Mr. Radhey Shyam Aggarwal an 80 year old applicant was present before him. Inspite of this the FAA refused to order disclosure of information. The PIO also states that as given his written submission he had sought the information from the Administrative Incharge of the ward Mr. N.S.Bhoria the present PIO who had given the reason for not providing information. The Commission asked the PIO if he could not understand from the papers the he was refusing the affidavit of Mr. Radhey Shyam Aggarwal to Mr. Radhey Shyam Aggarwal the Applicant. Subsequently the department had cancelled the registration of the trader M/s Aggarwal Traders since the affidavit of Mr. Radhey Shyam Aggarwal was a forgery. It is impossible to believe that the PIO who is a senior officer and can read and write English did not realize that he was withholding the affidavit of Mr. Radhey Shyam Aggarwal from himself. The explation of the PIO does not offer any reasonable ground and the Commission feels that this rejection was probably prompted by a malafide intention of shielding M/s Aggarwal Traders who had given a forged affidavit in the name of Mr. Radhey Shyam Aggarwal.
The Commission sees this as a fit case for levy of penalty under Section 20(1) of the Act for refusing to give the information without any valid grounds. The information should have been provided to the Appellant by 15/07/2009 but has now been provided on 15/10/2009 after the order of the Information Commission. This is delay of 90 days and hence the Commission imposes a penalty at Rs.250/- per day of delay X 90 days = Rs. 22,500/-.
Decision:
As per the provisions of Section 20 (1), the Commission finds this a fit case for levying penalty on Mr. Arun Kumar Mishra Dy. Commissioner & PIO. Since the delay in providing the information has been 90 days, the Commission is passing an order penalizing Mr. Arun Kumar Mishra Rs. 22,500/- at the rate of Rs250/- per days of delay.
The Chief Secretary of GNCT of Delhi is directed to recover the amount of Rs.22,500/- from the salary of Mr. Arun Kumar Mishra, and remit the same by a demand draft or a Banker's Cheque in the name of the Pay & Accounts Officer, CAT, payable at New Delhi and send the same to Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary of the Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi - 110066. The amount may be deducted at the rate of Rs.4500/- per month every month from the salary of Mr. Arun Kumar Mishra and remitted by the 10th of every month starting from December 2009. The total amount of Rs.22500/- will be remitted by 10th April 2010.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 17 November 2009 (In any correspondence on this decision, mentioned the complete decision number.)(AK) 1- The Chief Secretary GNCT of Delhi Delhi Sachivalaya, IP Estate New Delhi 110002 2- Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi - 110066