Central Information Commission
Seema vs Chief Commissioner Of Customs, Chennai ... on 3 December, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/CUSCZ/A/2018/623696-BJ
Ms. Seema Deep
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Asstt. Commissioner of Customs (Chennai - VIII)
O/o the Commissioner of Customs, Custom House
No. 60, Rajaji Salai, Chennai - 600001
... ितवादीगण /Respondent
Date of Hearing : 03.12.2019
Date of Decision : 03.12.2019
Date of RTI application 18.02.2018
CPIO's response 06.04.2018
Date of the First Appeal 23.04.2018
(mentioned in 2nd
Appeal)
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide her RTI application sought information regarding the copy of the roster maintained by Madras Custom House containing the requisite details of the directly recruited officers for the Post of Preventive Officer and Examiner for the Recruitment Years 1978 to 1990, separately for every recruitment year and each post.
The CPIO, vide his letter dated 06.04.2018 denied the information due to the Appellant on the ground that it pertained to a third party. In support of its decision, the CPIO also referred to the decision of the Division Bench of the Hon'ble High Court of Madras in WP No. 26781/2013 dated 17.09.2014. Dissatisfied with the CPIO's response, the Appellant approached the FAA. The order of the FAA, if any, in not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 6
Appellant: Absent;
Respondent: Mr. G. Chinnappa Reddy, CPIO and Assistant Commissioner and Mr. A. K. Balaji, Appraiser through VC;
The Appellant remained absent during the hearing. The Respondent reiterated the submissions of the CPIO / FAA as also its written submission. The Commission was in receipt of a written submission from the Respondent dated 29.11.2019 wherein while re-iterating the response of the CPIO it was stated that the FAA had decided the First Appeal vide order dated 31.07.2018 upholding the decision of the CPIO observing that the Appellant had no locus standi and there were no details in the RTI application regarding the Appellant's connection with the information sought for hence the information was denied u/s 8 (1) (j) of the RTI Act, 2005. The said order was already dispatched to the Appellant by speed post on 31.07.2018. However, the Appellant had made a complaint that the FAA had not passed any order hence one more copy of the FAAs order was sent to the Appellant. It was noted by the Commission that the Appellant was seeking information pertaining to 40 point roster for reservation for SC/ ST in respect of direct recruitment made on All India basis by open competition by UPSC / SSC.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, Page 2 of 6 papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
Having heard both the parties and on perusal of the available records, the Commission at the outset observed that the CPIO/ FAA did not provide a satisfactory 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. The Hon'ble Delhi High Court in the matter of J P Aggarwal v. Union of India (WP (C) no. 7232/2009 clearly stated that the PIO acts as the Pivot for enforcing the implementation of the Act. The relevant extracts of the decision are 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."
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 Commission also 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 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:
Page 3 of 6"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."
Furthermore, 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 ".....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, 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 also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
In the context of directing the Respondent to issue an affidavit to the effect that the information sought was not held and available with them, the Commission referred to the decision of the Hon'ble High Court of Delhi dated 30/10/2013 [W.P.(C)3381/2011- Ajay Kumar Gulati v/s Pushpender Nath Pandey and anr.] wherein it was inter-alia observed as under: -
"9. When the writ petition came for hearing on 28.01.2013, the following direction was issued to respondent No. 2:
"In view of the above, respondent no. 2 shall file an affidavit stating therein clearly as to whether relevant record has been destroyed and if that is so, whether information with regard to the same has been entered in the Records Destroyed Register. If such a register is maintained, the relevant extract from the said Registrar will accompany the affidavit."
10. In order to bring the whole controversy to an end, the respondent, vide order dated 01.07.2013 was directed to file affidavit of the concerned General Manager responding to the information sought by the petitioner vide application dated 30.10.2008 in respect of items No.2 to 16. In compliance of the aforesaid order, the respondent bank has filed an affidavit of its General Manager stating therein that the information sought by the petitioner filed vide application dated 30.10.2008 could not be provided to him as Page 4 of 6 the same was not traceable and is still not traceable in the bank, despite best efforts to trace the said information. In view of the categorical affidavit filed by none other than the General Manager of the Bank, it is quite clear that the information to the extent it is not supplied to the petitioner is not available with the bank in any form. Since the information is not available with the bank, there can be no question of granting any direction to the bank to provide the same to the petitioner.
11. In the facts and circumstances of the case, no further relief can be granted to the petitioner."
The Appellant was not present to contest the submissions of the Respondent or to substantiate her claims further.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent, the Commission directs the Respondent Public Authority to disclose the information in respect of the 40 point roster for reservation for SC/ ST in respect of direct recruitment made on All India basis by open competition by UPSC / SSC by the Madras Custom House for the period mentioned in the RTI application. In case such information was not available, an affidavit to the effect should be furnished to the Appellant within a period of 15 days from the date of receipt of this order.
Moreover, the First Appeal was not decided within the period stipulated under the provisions of the RTI Act, 2005 hence the FAA is instructed to be alert and cautious in the implementation of the RTI Act, 2005 with due diligence and care.
The Respondent was also advised to endorse a copy of their written submission sent to the Commission to the Appellant, as well.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का) (Information Commissioner) (सूचना आयु ) Authenticated true copy (अ भ मा णत स या पत त) (K.L. Das) (के .एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 03.12.2019 Page 5 of 6 Copy to:
1. The Chairman, CBEC, Department of Revenue, M/o Finance, North Block, New Delhi - 110001 Page 6 of 6