Central Information Commission
Shail Sahni vs Ministry Of Defence on 30 June, 2017
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus,New Delhi-110067
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File No. CIC/RM/A/2014/004325/SD/Adjunct
Date of Adjunct Decision: 23/06/2017
ADJUNCT DECISION
Relevant facts emerging from the Appeal:
Appellant : Shail Sahni
Block No. 8, House No. 82
Ramesh Nagar
New Delhi
Respondent : CPIO
Cantonment Board Office
Delhi Cantonment.
RTI application filed on : 05/03/2014
PIO replied on : 31/03/2014
First appeal filed on : 05/05/2014
First Appellate Authority : 22/05/2014
order
Second Appeal dated : 26/06/2014
INFORMATION COMMISSIONER : SHRI DIVYA PRAKASH SINHA
Information sought:
The Appellant sought information regarding action taken by all Cantonment Boards, respectively, against residential premises and its occupiers where commercial activities/business or industrial activities is being conducted.
Grounds for the Second Appeal:
The CPIO has not provided the desired information.1
Relevant Facts emerging during Hearing on 09.09.2016: The following were present:-
Appellant: Present in person.
Respondent: Nirdesh Kumari, Office Supdt. & CPIO, Cantonment Board, Delhi present in person and assisted by Tarveen Singh, Advocate. Notice for Second Appeal was issued to CPIO, Principal Director, Defence Estates, Western Command, Chandigarh, who directed CPIO, Cantonment Board, Delhi to appear before the Commission for hearing.
Appellant stated that his RTI Application was transferred to different Cantonment Boards. He further stated that the CPIO, Delhi Cantonment Board informed him on 01.05.2014 that no formal survey for identification of residential properties being used for commercial purposes has been conducted by them and as such no information is available with him. Appellant produced a copy of inquiry report submitted by Director Defence Estates, Western Command before the Delhi High Court in Writ Petition No.2022/2011 wherein it has been recorded that on 16.04.2012, Director Defence Estates, Western Command alongwith the CEO of Cantonment Board Delhi had carried out an inspection of residential units which have been converted into commercial shops. At para 9 of the said Report, an observation has been made with respect to House No. IV/1/44, that, it is a residential unit and has been converted into a shop. Moreover, para 10 of the Report mentions about action to be taken against the change of purpose of the residential unit.
Appellant further stated that CPIO has provided a false & misleading reply to him. He sought a report on action taken in respect of the observation under reference at para 9.
CPIO submitted that information is scattered in different places and available information was provided to the Appellant.
Decision on 09.09.2016 Commission directs the CPIO to provide the Appellant report on action taken in respect of observation at para 9 of inquiry report submitted by Director Defence Estates, Western Command before the Delhi High Court in connection with Writ Petition No.2022/2011 within 30 days of the receipt of this order.2
File No. CIC/RM/A/2014/004325/SD/Adjunct Commission observes that the then CPIO has provided false reply in respect of RTI Application which is in gross violation of the provisions of the RTI Act. A show Cause notice should be issued to the then CPIO to send his written submission explaining as to why penalty should not be imposed on him for lapses as per Section 20(1) of the RTI Act. The written submission should reach the Commission within 15 days of the receipt of this order. Commission will take an ex-parte decision if submission of the CPIO is not received within the said time period. A copy of Commission's order should be marked to CEO, Cantonment Board Delhi for compliance.
ADJUNCT DECISION PROCEEDINGS Commission received the submissions of the CPIO in response to the show cause notice issued on 14.09.2016 as per the order dated 09.09.2016.
It has been submitted therein that the then CPIO, Ms. Valsa Mathew took voluntary retirement in Nov. 2014 and that the present submissions are being given by the current CPIO on the basis of records available with office. In response to the grounds on which explanation was sought of the then CPIO, the CPIO informs that the enquiry report submitted before the Delhi High Court was in reference to a particular and limited portion [of properties] which was subject matter of the said writ petition. Further, stating that this inspection was conducted in pursuance to the orders of Delhi High Court in the said writ petition on Feb 13, 2012. It is reiterated that no proper/formal survey for the said purpose had been done for the complete areas falling under Delhi Cantonment Board as on the date of reply to the Appellant. To conclude, CPIO has asserted that no false/incorrect information has been provided to the Appellant and has prayed for the matter to be closed.
Commission found the submissions of the CPIO untenable and unsatisfactory for various reasons. The primary issue being that the then CPIO was asked for submissions while the current CPIO, Ms. Nirdesh Kumari has sent the submissions on the premise that the then CPIO, Ms. Valsa Mathew took voluntary retirement in November 2014 and is sending her reply based on records available in office.3
Accordingly, Commission scheduled a show cause hearing on 20.01.2017, directing the CPIO to be present before the Commission with relevant submissions.
SHOW CAUSE HEARING PROCEEDINGS on 20.01.2017 The following were present for the Respondent:
Mr. Gyanendra Pal Singh, CPIO accompanied by Anchit Sharma.
At the outset, Commission inquired as to why the CPIO, Ms. Nirdesh Kumari who was responsible for the reply to the show cause notice dated 14.09.2016 was not present. The parties present stated that CPIO, Ms. Nirdesh Kumari could not be present for the hearing as she was unwell. It was also brought on record that, Mr. Gyanendra Pal Singh has been designated as the CPIO now.
Commission expressed extreme displeasure at the conduct of the CPIO, Ms. Nirdesh Kumari in not having sent any authorisation or even any written submissions explaining her absence. Even further, the public authority, i.e Delhi Cantonment Board appears to have conveniently reshuffled the appointment of CPIO, presumably to complicate the proceedings before the Commission, wherein already the then CPIO, Ms. Valsa Mathew was seen at fault, while subsequently, Ms. Nirdesh Kumari took upon the same fault on her part. Now, a new CPIO has been designated and sent to appear before the Commission merely to intimate that Ms. Nirdesh Kumari is unable to attend the hearing and prayed that another date be given for the hearing.
Since the show cause proceeding was against the CPIO, Ms. Nirdesh Kumari, Commission did not find it expedient to take on record any further submission of the parties present during the hearing.
ADJUNCT DECISION:
It is appalling to note that CPIOs of Delhi Cantonment Board clearly have no regard, whatsoever, for the provisions of RTI Act or for the Commission's directions.
The written submissions which were sent in response to the initial show cause notice dated 14.09.2016 reflect on the imprudence of Ms. Nirdesh Kumari in reiterating the allegations of the Appellant without justifying her defence. As 4 File No. CIC/RM/A/2014/004325/SD/Adjunct for Ms. Nirdesh Kumari to state that the inquiry report quoted by the Appellant was in reference to a particular portion of property and not for whole of Cantonment Area is nothing but an extension of the non-application of mind of the then CPIO Ms. Valsa Mathew. It is not understood as to why Nirdesh Kumari was even attempting to explain the conduct of the then CPIO, without having asked the then CPIO, Valsa Mathew to respond on it.
In this case, the FAA, B Reddy Shankar Babu, also is to be seen at fault. The show cause notice was directed to the then CPIO through the FAA, the FAA should have taken due care to ensure that it is the then CPIO who is responding on the show cause notice instead of arbitrarily submitting the explanation of Ms. Nirdesh Kumari. The fact that then CPIO, Ms. Valsa Mathew took voluntary retirement is immaterial for show cause proceedings under RTI Act. A retired employee is as much liable as a serving employee would be for acts of omission and commission under RTI Act. It was incumbent on the FAA to have sought the explanation of the then CPIO, Ms. Valsa Mathew as per the show cause notice dated 14.09.2016.
Further, if CPIO, Ms. Nirdesh Kumari were to justify the conduct of then CPIO, Ms. Valsa Mathew, there should have been some rationality in what she is submitting against the allegations of having provided false information. CPIO, Ms. Nirdesh Kumari on the other hand is neither denying that there was an inspection on 16.04.2012 nor accepting that false information was provided to the Appellant. She is merely saying that the inquiry report was submitted on the directions of the Delhi High Court for a limited portion of residential property and as on the date of RTI Application no formal survey was conducted by the Board for the area falling under Delhi Cantonment Board.
It is made abundantly clear that the Appellant in his RTI Application did not specify any such condition, that action should have been taken formally/properly and not in consonance with any Court direction etc., he simply asked for action taken by the Board against residential premises and its occupiers where commercial activities is being conducted. The question of formal or informal survey did not even arise in the matter for the then CPIO to quote that "formal information is not available". Furthermore, at the stage of hearing of the Appeal, CPIO, Ms. Nirdesh Kumari did not even deny to the inquiry report brought on record by the Appellant, infact she herself accepted in her written submissions that there was an inspection. It follows then the 5 ideal course of action for the then CPIO, would have been to provide the information as available on the inspection and action taken on whatever limited property. In the circumstances, the then CPIO unnecessarily denying the information stating that there is no formal survey or formal information available is nothing but clearly an act to evade from providing the information. This act has been now seconded by the CPIO, Ms. Nirdesh Kumari also.
As regards the questions of affording another opportunity to be heard, this bench of the Commission is predisposed with proceedings against the Respondent Office and the same set of CPIOs in File No. CIC/LS/C/2011/001105-AB, wherein a show cause proceeding pending from 17.10.2011 against the then CPIO, Ms. Valsa Mathew was taken up afresh on 16.11.2016 by a coordinate bench of the Commission. Proceedings of the pending show cause dated 17.10.2011 flowing from an order dated 12.09.2011 and final order dated 16.11.2016 is reproduced here for drawing relevance to the present context:
''........DATE OF HEARING - 12.09.2011 DATE OF DECISION - 12.09.2011 Complainant present along with his younger brother Dr. Subhash Airy who has travelled all the way from USA to pursue this matter. The Board is represented by Valsa Mathew(CPIO), Shri Kamal Verma and Advocate R. Nanavati. 2. It is the submission of the complainant that his father was a tenant in property No. I/117, Sadar Bazar, Delhi Cantt, for a number of years. He expired in 2001. Thereupon, he had requested the Cantonment Board to transfer the tenancy rights in his name and in the name of his younger brother Dr. Subhash Airy......"
".......3. The complainant had then filed an RTI application dated 18.4.2010 which is reproduced below:-
*As directed by Cantt. Board vide their letter No. DCB/4/RS/TOTR/I/117 dated July 12, 2004, all documents including (I) Death Certificate No. 330442 dated 18.07.2001 of Sh. Ved Parkash Airy
- the original allottee. (2) No Objection Certificate dated March 01, 2001 in the form of affidavit from legal heirs on a stamp paper duly attested by Notary Public and (3) the list of legal heirs as desired by CB. * Above documents were received under CB office stamp on July 30, 2001.6
File No. CIC/RM/A/2014/004325/SD/Adjunct * Several meetings were held with Mr. A. Sharma, Engineer of CB office to pursue this matter but except assurances no action has been taken till date. As desired by Mr. Sharma a set of above documents including CB office receipt were again personally handed over by me to Mr. Sharma in presence of Mr. Pradeep Kadian & Ms. Anupama Tripathi - the two elected Members of the Cantonment Board on July 27, 2010.
* In order to expedite action in this matter, I also met Brig. Kuldip Singh- Area Commander (Army) and President of Cantt. Board on August 11, 2010 and submitted a copy of my letter of July 27, 2010. Brig. Kuldip Singh directed the CEO of CB to put up our case file in the "next Board Meeting"
* As desired by Mr. A. Sharma a copy of the original letter dated July 30, 2004 duly receipted & stamped by CB office was indeed again submitted on February 7, 2011 as per receipt enclosed. CEO was requested to confirm action "within 30 days" but no response has been received till date & hence this application under RTI.(emphasis added).
* We had learnt from Mr. A. Sharma that in the case of a similar CBF quarter of Late Sh. Dev Raj Sood, the tenancy right has been transferred to the legal heir and many other cases have been since settled after our application was put up in March 2004. ii) Period for which information asked for: The matter pertains to the period 2004- 2011 iii) Other details:- Notwithstanding above submission, when my brother Dr. Subhash Airy of USA (currently visiting Delhi) and I met Mr. A. Sharma & other concerned officer met them on April 8, 2011 I was informed that "our file is not traceable" in their office....."
"......4. As the aforesaid RTI application remained unresponded to by the CPIO, the complainant had then filed a complaint dated 19.07.2011 before this Commission under section 18 of the RTI Act..........."
"......5. During the hearing it transpires that the CPIO does not know anything about the facts of this case. Nor has she tried to ascertain them. All that she submits before the Commission is that a decision regarding the transfer of tenancy rights is to be taken by the Cantonment Board. It is not clear to us as to why did she not ascertain the full facts before appearing before the Commission.7
6. Advocate Nanavati, who appears for the Cantonment Board, pleads that the complainant has not sought any information in the RTI application and that this Commission is not the right forum for the complainant.
7. In our opinion, the plea taken by Advocate Nanavati is misconceived. A careful examination of the RTI application extracted above would indicate that the appellant has sought information about the action taken by Cantonment Board on the transfer of tenancy rights as per his letter dated 30.07.2004. Para (ii) of the RTI application demonstrates that the complainant has sought information regarding the action taken by the Board from 2004 to 2011. It may be clarified that non-use of words such as 'what', 'why', 'where' or non-use of sign of interrogations, does not render the queries invalid in terms of section 6(1) of the RTI Act. It is to be underlined that RTI Act is a beneficial legislation to help the citizenry of the country. It needs to be emphasized that section 6 of the Act is required to be construed widely and not narrowly. It also needs to be noted that proviso to section 6(1) provides that even when the request is not in writing, the Central Public Information Officer or State Public Information, as the case may be, is mandated to render all reasonable assistance to the information seeker. The last clause of this proviso also mandates that even when the information seeker makes an oral request for information, the same is required to be reduced in writing by the CPIO. It, thus, appears to us that both CPIO and the Counsel appearing for the Cantonment Board have misconstrued and misunderstood the provisions of the law. Their plea is unsustainable in law and is rejected. We hold that the appellant has sought information about the action taken on his old pending request of 2004 regarding transfer of tenancy rights to him and to his brother which remains unresponded to so far. In the premises, the following order is passed :- (i) Notice may be issued to Ms Valsa Mathew, CPIO, to show cause why penalty at the rate of Rs. 250/- per day should not be imposed on her reckoning from the date of RTI application dated 18.4.2011. (ii) Notice may be issued to Shri Sanjeev Kumar, Chief Executive officercum-Chairman, Cantonment Board, to appear before the Commission on the next date of hearing along with the relevant records.. (iii) Copy of these proceedings may be sent to Director General, Defence Estates, New Delhi, for deputing a senior officer to represent him in the next hearing. (iv) Notice may also 8 File No. CIC/RM/A/2014/004325/SD/Adjunct be issued to Director, Defence Estates, Ministry of Defence, to appear and assist the Commission on the above date...."
".......Dated : 17.10.2011 This is in continuation of this Commission's proceedings dated 12.09.2011. As scheduled, the matter is heard today dated 17.10.2011. Appellant present along with his younger brother Dr. Subhash Airy who has traveled all the way from USA to attend this hearing. The Cantonment Board is represented by Shri Sanjeev Kumar, IDES, CEO, and Adv. R. Nanavati. The office of DGDE is represented by Shri R.K. Lal, Deputy Director. The parties are heard and the records perused....."
"....3. In view of the categorical assurance of the CEO, the Commission would not like to pass any order at this stage. Decision regarding notice issued to Ms. Valsa Mathew, CPIO, is kept pending. The matter will now come up for hearing on 02.05.2012 at 1030 hrs....."
".......COMMISSIONS OBSERVATION:
However as the showcause notice was pending, the matter was taken up afresh by this bench and accordingly notice was issued to the present CPIO, Smti Nirdesh Kumari to submit the explanation of Smti Valsa Mathew and to serve the showcause notice on her. The date of hearing was fixed on 16.11.2016. The present CPIO, neither the then CPIO was present before the Commission for showcause explanation. The respondent CPIO on the day of hearing was required under law to remain present in the Commission and give arguments to justify his stand. However, the CPIO failed to remain present on the day without prior notice. The CPIO also had made no arrangements by giving authorisation empowering any representative to present her case on her behalf and attend Commission proceedings which is a sorry state of affairs.
Date 16.11.2016 FINAL ORDER:9
Respondent : Absent Smt Valsa Mathew the then CPIO was absent Smt Nirdesh Kumari the present CPIO also absent The Commission took serious note of both the CPIOs' continued non compliance of the Commission's direction. Despite issuance of reminder to the First Appellate Authority on 04.07.16 and hearing notice for showcause on 24.10.16, the respondents were not present during the hearing. Both the CPIOs are hence considered as responsible for non compliance of the Commission's order. Attention is drawn of Sh. B Reddy Sankar Babu, IDES Chief Executive Officer of Delhi Cantonment Board on the indifferent and negligent attitude of the CPIOs dealing with RTI matters even in respect of showcause notice issued by the Commission in this case. The Commission recommends to the DGDE to take disciplinary action under the relevant service rules against both the CPIOs, Smt Valsa Mathew and Smt Nirdesh Kumari for flouting the lawful order of the Central Information Commission under the RTI Act. It is expected that an action taken report shall be submitted to the Commission within a reasonable time by the DGDE in this case.
With the above direction, the complaint is disposed of......"
The aforesaid makes it amply clear that the CPIOs Valsa Mathew, Nirdesh Kumari have been incorrigible with their misconduct and unaccountability. In a proverbial sense, the latter has literally filled her in the shoes of the former. Resultantly, both the CPIOs are held responsible for the violation of the provisions of RTI Act in having obstructed the Appellant's right to information. Commission is fully aware of the principles of natural justice which requires affording reasonable opportunity to the delinquent CPIOs of being heard before instituting any penal action under the RTI Act, however, taking into consideration the several opportunities that have been relinquished by the CPIOs Valsa Mathew and Nirdesh Kumari, it is deemed appropriate to not afford any further opportunity to them as it may only result in the wastage of Commission's time and resources. It will not be out of place to say that the then CPIOs Valsa Mathew and Nirdesh Kumari appear to be rather unbecoming of a government servant.
Keeping in view the entirety of the present case as well as the repeated misconduct on the part of CPIOs Valsa Mathew and Nirdesh Kumari, this bench 10 File No. CIC/RM/A/2014/004325/SD/Adjunct of the Commission also reiterates the recommendation made to DGDE vide the order dated 16.11.2016 quoted above.
A copy of this order is marked to DGDE with a direction to intimate to the Commission the status of action taken on the aforesaid order dated 16.11.2016 within 15 days from the date of receipt of this order.
A copy of this order is marked to the FAA, B. Reddy Shankar Babu to take note of the dereliction on his part in the matter and he is further cautioned to peruse the Commission's directions carefully in future.
ADVISORY A copy of this order is marked to the Director General, Defence Estates to take note of the adverse observations made with regard to the CPIOs and FAA of Delhi Cantonment Board. In a number of matters before the Commission pertaining to Delhi Cantonment Board, concerned CPIOs are observed to be defiant of the provisions of RTI Act. CPIOs clearly lack sense of the letter and spirit of the Act and display an underlying attempt at restraining transparency in the functioning of the Board. DGDE should take concerted steps at the earliest to counter the exigencies of the Board which could be the factor for designating incompetent CPIOs. Further, there should be more accountability and transparency in the functioning of the Board, and as its corollary, workshops should be conducted on the working of the RTI Act for not just the designated CPIOs but for the entire lot of the functionaries of the Board so that the imperativeness of dissemination of information is brought to their knowledge and no employee can plead ignorance of law, which is a very common proposition seen amongst government servants when it comes to RTI Act.
With these observations and directions, the show cause proceedings hereby stands concluded.
(Divya Prakash Sinha) Information Commissioner 11 Authenticated true copy (H.P Sen) Dy. Registrar/Designated Officer Copy to:
B. Reddy Shankar Babu Chief Executive Officer & FAA Office of Cantonment Board Sadar Bazar, Delhi Cantt-10
--(For taking note of the above said adverse remarks made in his regard) Copy to:
Director General Directorate General of Defence Estates Raksha Sampada Bhawan, Ulaanbaatar Marg, Delhi Cantt.-10
--(For compliance of directions as above) 12