Central Information Commission
Varun Krishna vs Spmcil Security Printing Press ... on 20 December, 2018
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.:- CIC/SPPRE/C/2017/114546-BJ-Adjunct
Mr. Varun Krishna
.... िशकायतकता
/Complainant
VERSUS
बनाम
1. The CPIO,
Security Printing and Minting Corporation
Of India Ltd., Miniratna Category-I,
CPSE, 16th Floor, Jawahar Vyapar Bhawan,
Janpath, New Delhi-110 001.
2. The CPIO
India Security Press,
Nashik SPMCIL,
Nashik Road, Nashik-422 101, Maharashtra.
... ितवादीगण /Respondent
Date of Hearing : 04.10.2017
Date of Decision : 05.10.2017 and 17.12.2018
Date of filing of RTI application 24.10.2016
CPIO's response 02.11.2016
Date of filing the First appeal 16.12.2016
First Appellate Authority's response Not on Record
Date of diarised receipt of Complaint by the Commission 04.03.2017
ORDER
FACTS:
The Complainant vide his RTI application sought information on 06 points regarding the copies of all the complaints and copies of corresponding file noting of all the complaints received in the office of CMD, SPMCIL regarding non disposal of First Appeal from the O/o FAA, ISP, Nashik in the past 02 years, all the communications exchanged between the office of CMD, SPMCIL and FAA, ISP Nashik regarding non disposal of First Appeals in the past
02 years, the action taken by the O/o CMD, SPMCIL with regard to Point 01 of his RTI application dated 24.10.2016, list of First Appeals pending for disposal from ISP, Nashik, list of all the current valid products manufactured or procured by SPMCIL and its units containing state emblem of India without the text " Satyameva Jayate" and issues related thereto.
The CPIO vide its letter dated 02.11.2016 provided a point wise response to the Complainant wherein information w.r.t. Points 04, 05 and 06, the RTI application was transferred to the concerned officers of ISP, Nashik u/s 6(3) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Complainant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Mr. Varun Krishna;
Respondent: Mr. V. Ramulu, CPIO and Manager (HR), ISP Nashik through VC; Mr. K. P. Srivastava, Manager, New Delhi and Mr. Naveen Dogra, Assistant, New Delhi in person;
The Complainant reiterated the contents of his RTI application and stated that no reply had been given by Respondent, till date. The FAA had also not decided his First Appeal. Therefore, he had filed a Complaint before the Commission against the deemed refusal of information by the CPIO/FAA, ISP, Nashik. It was further conveyed that the RTI application was duly transferred by CPIO, SPMCIL vide letter dated 02.11.2016 to ISP, Nashik on Points 4, 5 and 6 and to ISP, Hyderabad on Point 05. However, he was not in receipt of any information from ISP, Nashik, till date. The Complainant vide his written submission dated 25.09.2017 raised certain issues regarding whether the PIO & FAA, ISP Nashik had caused deemed refusal to the information sought by him thereby causing a delay of 345 days and the directions of the Commission had not been complied with by the PIO/FAA of the Respondent Public Authority as given in Case no. CIC/ISPNR/A/2016/300382-BJ dated 28.07.2017, in Case no. CIC/ISPNR/C/2016/298642-BJ dated 01.08.2017, in Case no. CIC/MP/C/2016/000170 dated 07.02.2017, in Appeal no. CIC/MP/A/2016/001279 dated 07.02.2017, in Case no. CIC/MP/C/2016/000111-BJ dated 10.02.2017, in Case no.
CIC/SPPRE/C/2016/303959-BJ dated 28.07.2017 and in Case no. CIC/ISPNR/A/2016/308837 dated 12.07.2017.
The Complainant made a strong objection regarding non-receipt of any written submission from the Respondent, ISP Nashik in the matter. The Commission directed the Respondent, ISP Nashik to endorse a copy of their written submission in future, to the Complainant(s) before hand in order to provide fair opportunity to the Complainant(s) to submit his case more effectively before the Commission.
The Respondent, ISP vide its written submission dated 26.02.2017(26.09.2017) submitted that being a security and sensitive organisation of the Country, there is always a threat of affecting the sovereignty and integrity of India, including commercial confidence, trade secrets, etc, the disclosure of information which did not serve any larger public interest. Therefore, it was explained that the Respondent Authority had to be more cautious and diligent while responding to the RTI Applications. Explaining the background of the case, the Respondent submitted that the Complainant was a vendor/supplier of material and had been participating in various tenders from time to time. Since he was disqualified in certain tenders, he had started submitting repetitive RTI applications under the RTI Act, raising interrogatory queries and grievances to one or the other Authority. It was explained that there were many other vendors participating in tenders as per their SPMCIL Procurement Manual was satisfied with their rejection from tenders but did not file RTI applications as a tool to harass the Public Authority. It was argued that the Complainant had made complaints for alleging non-compliance, delayed responses and requests the Commission for intervention and issuance of penalty with disciplinary action against CPIO/PIO who were spending their most of time in responding to his repetitive RTI applications which did not serve any larger public interest. Point wise response/submission was provided to the various cases decided by the Commission and the compliance made thereon by the Respondent Public Authority. It was alleged that the Complainant was filing several RTI applications raising hypothetical queries and a lot of considerable time was sent by ISP, Nashik officers in responding to such RTI applications. A reference was made to the CIC decision in Case no. CIC/SA/A/2015/001849 dated 25.02.2016. Therefore, it was requested that the Complainant should be refrained from filing repetitive interrogative and suggestive nature of RTI applications making baseless allegations on the Respondent Public Authority.
During the hearing, the Respondent, while responding in the present matter, informed the Commission that the records of the instant RTI application and the First Appeal was not traceable at his office and therefore he could not provide a response in the matter. The Complainant objected to the Respondent's submission and stated that he had the copy of the speed post receipt of his RTI application sent to ISP, Nashik and that Respondent could not deny the receipt of the instant RTI application in his office. It was further argued that the Respondent should check his inward Dak Register for the same. The Respondent could not contest the submission of the Complainant and respond accurately on receipt/non-receipt of the RTI application/First Appeal. However, in its written submission dated 26.09.2017, the Respondent agreed to consider providing the information in the present matter as per the RTI Act, 2005. The Respondent, ISP Nashik conveyed to the Commission that after he was designated as a CPIO since April, 2017, due caution had been undertaken in responding to the RTI application in accordance with the provisions of the RTI Act, 2005. It was explained due to transfer/postings of officers in the Respondent Public Authority, delay was caused in providing responses to the RTI applications filed in the year 2016.
The Respondent, SPMCIL vide its written submission dated 20.09.2017 submitted that the PIO vide its letter dated 02.11.2016 had intimated to the Complainant that the total estimated number of pages in response to Points 01, 02 and 03 were 63 and therefore a request was made to pay Rs.126/- by way of IPO/DD/Bankers Cheque in favour of SPMCIL. With respect to Points 04, 05 and 06, the RTI application was transferred to ISP, Nashik as the information sought did not pertain to SPMCIL. Thereafter, the Complainant vide his letter dated 16.12.2016 had deposited a fee of Rs. 130/- by way of IPO (the written submission is incomplete). It was also confirmed that the RTI application was duly transferred to ISP, Nashik with respect to information on Points 4, 5 and 6 of the RTI Application.
However, with respect to the First Appeal not been decided by the FAA, till date, the Commission was appalled to note that the FAA had also not acted in accordance with the provisions of the RTI Act, 2005 and therefore is advised to be alert and cautious in the implementation of the RTI Act, 2005 with due diligence and care. Hearing both the parties and on perusal of the records, the Commission noted that the oral and written submissions provided by the Respondent were self contradictory and could not be sustained. However, keeping in view the non-receipt and ignorance of the instant RTI application/First Appeal by the Respondent, the Commission expressed its displeasure on the casual and callous approach adopted by the Public Authority in responding to the RTI application and the process adopted to maintain and organise record. It was felt that the conduct of respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information. 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 CPIO/FAA in the matter, which is a grave violation of the provisions of the RTI Act, 2005. The Commission, instructs the Respondent to showcause why action should not be taken under the provisions of the Act for this misconduct and negligence. The Commission therefore, directs the respondent to:
1- explain why penal action should not be taken as per Section 20(1) of the RTI Act, 2005, within 15 days;
from the date of receipt of this order.
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 present mechanism for dealing with RTI matters in the Public Authority is far from satisfactory. The Complaint stands disposed with above direction Note: Subsequent to receipt of the reply to the Show cause notice dated 25.10.2017 from the Manager HR and CPIO, ISP, Nasik the Commission hereunder pronounces its decision in the matter.
In its reply to the show cause notice dated 25.10.2017, the Manager HR and CPIO, ISP, Nashik stated that they had verified the records but could not find the RTI application alleged to be forwarded by the SPMCIL Corporate Office vide their letter dated 02.11.2016. However the RTI application had since been obtained and reply provided. In view of the above, it was prayed to condone the lapse, if any, and dispose off the Complaint.
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 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 RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon'ble High Court of Delhi 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."
Furthermore, the Hon'ble Delhi High Court decision in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 it has held that:
"The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non- disclosure."
A reference was drawn to the decision of the Hon'ble Delhi High Court in the case of J.P Agrawal v. Union of India-2013(287) ELT25(Del.) wherein it was held as under:
7."it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only. The Appellate Authority is not the custodian of the information or the document. It is only a statutory authority to take a decision on an appeal with regard the tenability or otherwise of the action of the CPIO and, therefore, there is a conscious omission in making the Appellate Authority liable for a penal action under Section 20 of the RTI Act and if that be the scheme of the Act and the legislative intention, we see no error in the order passed by the learned writ Court warranting reconsideration."
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 adjudicated 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."
A reference can also be made to the judgement of the Hon'ble High Court of Delhi in titled Ankur Mutreja v. Delhi University in LPA 764/2011 dated 09.01.2012 wherein it was held as under:
a) the Act does not provide for the CIC to, in the penalty proceedings, hear the information seeker, though there is no bar also there against if the CIC so desires;
b) that the information seeker cannot as a matter of right claim audience in the penalty proceedings which are between the CIC and the erring information officer;
c) there is no provision in the Act for payment of penalty or any part thereof imposed/recovered from the erring information officer to the information seeker;
d) the penalty proceedings are akin to contempt proceedings, the settled position wherein is that after bringing the facts to the notice of the Court, it becomes a matter between the Court and the contemnor and the informant or the relator does not become a complainant or petitioner in contempt proceedings."
The aforementioned decision was also relied upon and affirmed by the Hon'ble High Court of Delhi in its decision in Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 wherein it was held as under:
"8...........................The information seeker has no locus in the penalty proceedings, beyond the decision of the complaint/appeal and while taking which decision opinion of default having been committed is to be formed, and at which stage the complainant/information seeker is heard.
9. ............................ In the context of the RTI Act also, merely because the CIC, while deciding the complaints/appeals is required to hear the complainant/information seeker, would not require the CIC to hear them while punishing the erring Information Officer, in exercise of its supervisory powers."
ADJUNCT DECISION Keeping in view the facts of the case and submission made by both the parties as also the reply to the show cause notice furnished by the Respondent, no further intervention of the Commission is warranted in the matter. The show cause notice is dropped. The Respondent is however, cautioned to exercise due care in future to ensure that correct and complete information is furnished timely to the RTI applicant(s) as per provisions of the Act failing which penal proceedings under Section 20 shall be initiated.
िबमल जु का)
Bimal Julka (िबमल का
सूचना आयु )
Information Commissioner (सू
Authenticated true copy
(अिभ मािणत स ािपत ित)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 17.12.2018
Copy to:-
1. The Secretary (EA), Department of Economic Affairs, Ministry of Finance, Room No.130, North Block, New Delhi.
2. The Chairman & Managing Director, SPMCIL, Corporate Office, 16th Floor, Jawahar Vyapar Bhavan, Janpath, New Delhi-110 001(with the instruction to consistently organise sensitization and awareness programmes in respect of the implementation of the RTI Act, 2005.)