Central Information Commission
Amirali Vazirali Panjwani vs Department Of Posts on 22 June, 2021
Author: Uday Mahurkar
Bench: Uday Mahurkar
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No.:- CIC/POSTS/A/2019/131222-UM
Mr. Amirali Vazirali Panjwani
....अपीलकताग/Appellant
VERSUS
बनाम
CPIO,
Department of Post,
O/o Sr. Supdt of Post Office,
Mumbai East DN Dadar Mumbai 400 014
प्रनतवािीगण /Respondent
Date of Hearing : 17.06.2021
Date of Decision : 21.06.2021
Date of RTI application 14.03.2019
CPIO's response 27.03.2019
Date of the First Appeal 15.04.2019
First Appellate Authority's response 15.05.2019
Date of diarized receipt of Appeal by the Commission 02.07.2019
ORDER
FACTS The Appellant vide his RTI application sought copy of Manifest of delivery sheet of 27/08/2018 under which Post No. RM371847353IN was delivered.
The SSPO/CPIO, Deptt. of Posts, Mumbai vide letter dated 27.03.2019 informed that as per booking receipt of Registered letter received on 22.03.2018, the Appellant is neither a sender nor addressee. Hence, as per Section 11 of the RTI Act, 2005, it is a third-party information. Dissatisfied with the reply received from the PIO, the Appellant filed the First Appeal. The FAA Page 1 of 8 vide order dated 15.05.2019 directed the CPIO to immediately issue notice to sender in order to obtain consent for providing material information to the Appellant. Thereafter, the Appellant filed a Second Appeal before the Commission with a request to provide correct and complete information.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Amirali Vazirali Panjwani through AC;
Respondent: Mr. B. S. Patare, SSPO and CPIO through AC;
The Appellant reiterated the contents of the RTI application and submitted that the information sought has been denied by the CPIO on frivolous ground mentioning Section 11 of the RTI Act, 2005 being third party information. The Appellant further submitted that the First Appellate Authority has not provided him the hearing opportunity which is against the principles of natural justice. Furthermore, the Appellant alleged huge corruption and stated that to unearth the corruption he desired the requisite information. In addition, it was informed that a court case is pending adjudication and to substantiate his claims he has sought the copy of the Manifest of delivery sheet.
In its reply, the Respondent submitted that the Appellant is neither a sender nor addressee and therefore, the information sought was denied u/s 11 of the RTI Act, 2005, being third party information. The Appellant contested the above averments of the Respondent and remained dissatisfied with the reply of the CPIO. The Respondent consistently maintained their earlier stand.
The Commission was in receipt of a written submission from the Respondent dated 15.06.2021 wherein while reiterating the contents of the RTI application, reply / order of the CPIO / FAA, it was submitted that the office had only available the Article No. (as mentioned in the submission) but the details of the sender was not available with them.
The Attention of the Respondent is drawn towards the Section 11 of the RTI Act, 2005, which is narrated as under: -Page 2 of 8
11. Third Party Information (1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.
(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.
(3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in Grounds for rejection to access in certain cases.Page 3 of 8
(4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.
Firstly, Section 11 of the RTI Act, 2005, is not an exemption clause. It is a procedural section wherein in case of a third-party information, if the CPIO intents to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the CPIO shall within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the CPIO intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed.
And in the instant case, the CPIO has denied the information referring to Section 11 of the Act without following the procedure laid down in the said clause. Moreover, even after the directions of the FAA to follow the procedure of Section 11 of the Act, the CPIO did not comply with the above directions. Instead, the CPIO has sought the third-party address from the Appellant. This indicates blatant callousness/ casualness/ disregard to the provisions of the RTI Act, 2005 by providing an incorrect and misleading response to the Appellant. The provisions of the RTI Act, 2005 and various judgements on the subject matter clearly establishes that it is the duty of the CPIO to provide clear, cogent and precise response to the information seekers. Section 7 (8) (i) of the RTI Act, 2005 also states that where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection.
Secondly, If the CPIO does not have the details of the Sender, on what basis he denied the information quoting Section 11- and third-party information. No cogent reply was offered by the Respondent present during the hearing.
The Commission further observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the Respondent present during the hearing nor the CPIO responding to the Page 4 of 8 RTI application, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005.
While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case."
The Commission felt that correct and timely response is the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this context, the Commission referred to 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 had been 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."
With regard to providing a clear and cogent response to the Appellant, the Commission referred to the decision of the Hon'ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
" 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 Page 5 of 8 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."
8.............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."
The Hon'ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed ".....that a CPIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information. The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow".
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
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 Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. 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. The Commission expressed its displeasure on the casual and callous approach adopted by the respondent in responding to the RTI application. It was felt that the conduct of Respondent was Page 6 of 8 against the spirit of the RTI Act, 2005 which is 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 while cautioning the CPIO for palpable neglect in answering the RTI application strictly in accordance with the provisions of the RTI Act, 2005, directs the Director Postal Services and First Appellate Authority, O/o Postmaster General, Mumbai Region, to initiate steps to sensitize its officers by convening periodic conferences/seminars to familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Commission further directs the Director Postal Services and First Appellate Authority, O/o Postmaster General, Mumbai Region, to get his order dated 13/15.05.2019 complied with by the CPIO strictly following the procedure laid down under the RTI Act, 2005, and furnish a suitable reply to the Appellant within a period of 45 days from the date of receipt of this order, under intimation to the Commission.
The Appeal stands disposed with the above directions.
(Uday Mahurkar) (उिय माहूरकर) (Information Commissioner) (सूचना आयुक्त) Authenticated true copy (अभिप्रमाणित एवं सत्यापित प्रतत) (R. K. Rao) (आर. के. राव) (Dy. Registrar) (उप-पंजीयक) 011-26182598 / [email protected] दिनांक / Date: 21.06.2021 Page 7 of 8 Copy to:-
1. Director Postal Services and First Appellate Authority, O/o Postmaster General, Mumbai Region, Mumbai-400 014 Page 8 of 8