Central Information Commission
Dinesh Kumar vs Dr. R. M. L. Hospital,New Delhi on 11 July, 2018
CENTRAL INFORMATION COMMISSION
Baba Gang Nath Marg, Munirka,
New Delhi-110067
F. No.CIC/DRMLD/A/2018/109652
Date of Hearing : 31.05.2018
Date of Decision : 10.07.2018
Appellant/Complainant : Mr. Dinesh Kumar
Respondent : 1. PIO
Assistant Registrar
Guru Gobind Singh Indraprastha
2. PIO, Dr. Ram Manohar Lohia
Hospital, New Delhi
3. PIO, Post Graduate Institute of
Medical Education & Research,
Dr. Ram Manohar Lohia Hospital,
New Delhi
Information Commissioner : Shri Yashovardhan Azad
Relevant facts emerging from appeal:
RTI application filed on : 18.10.2017
PIO replied on : -
First Appeal filed on : 18.12.2017
First Appellate Order on : -
2nd Appeal/complaint received on : 13.02.2018
ORDER
1. The captioned appeals are facets of a common issue and hence taken up together. It would be worthwhile to narrate common factual premise upon which the present appeals are predicated.
2. The appellant herein is a senior doctor at Department of Paediatrics, Dr. RML Hospital. The appellant was also an Professor at the PGIMER; a constituent medical college of Dr. RML Hospital Delhi and was thus engaged in teaching assignment. The affiliating university for PGIMER, Dr. RML Hospital is Guru Gobind Singh Indraprastha University, Delhi (GGSIPU) which confers teaching designation on the faculty teaching at PGIMER.
3. It is the contention of the appellant that based on a complaint received by PGIMER, and in turn forwarded to GGSIPU; the University withdrew his teaching designation. It is further submission that the action of GGSIPU was penal and the rules of principles of Natural Justice were flouted as he was not even allowed to know the contents of the complaint and plead his defence. The appellant also levelled allegations on his HoD, Dr. (Prof.) T.P. Yadav, who as per the appellant was instrumental in planning a design to harass him by misuse of his official position. It is also alleged that the said Dr. T.P. Yadav ruined the APAR of appellant acting in a belligerent manner. In such backdrop, the appellant lodged two distinct RTI applications with respondent PIO, Dr. RML Hospital and one with PIO, GGSIPU over connected issues in the foregoing context.
F. No.CIC/DRMLD/A/2018/109652 F. No. CIC/GGSIU/A/2018/109654 Information sought and background of the appeals:
4. The two captioned appeals emanate from an identical RTI application dated 13.10.2017 & 18.10.2017 addressed to PIO, Dr. RML Hospital & PIO, GGSIPU respectively. The RTI application reads as:
Guru Gobind Singh Indraprastha University vide office order no GGSIPU/Admission/2017 dated 20.09.2017 had withdrawn the teaching designation of Dr. Dinesh Yadav, Department of Paediatrics, PGIMER and Dr. RML Hospital. The decision taken by the University is based on complaint dated 24.04.2017, report dated 02.05.2017 and 25.08.2017 of the PGIMER and Dr. RML Hospital. In view of this appellant vide RTI application dated 13.10.2017 sought information as under:-
i. A copy of complaint dated 24.04.2017.
ii. A copy of University‟s letter dated 04.07.2017.
iii. A copy of corresponding notings related to issuance of letter dated 04.07.2017.
iv. A copy of report of dated 02.05.2017 submitted to the Ministry of Health and Family Welfare by PGIMER and Dr. RML Hospital.
v. A copy of corresponding notings related to issuance of Report dated 02.05.2017.
vi. A copy of supplementary report dated 25.08.2017 submitted to the Ministry of Health and Family Welfare by PGIMER and Dr. RML Hospital.
vii. A copy of corresponding notings related to issuance of Supplementary report dated 25.08.2017.
viii. A copy of letter written by the PGIMER and Dr. RML Hospital to the University in response to the University‟s letter dated 04.07.2017.
ix. A copy of corresponding notings related to issuance of letter written by the PGIMER and Dr. RML Hospital to the University in response to the University‟s letter dated 04.07.2017.
x. A copy of the research Article published by Dr. Dinesh Yadav on the basis of which the entire punitive decision has been taken.
5. The PIO, Dr. RML Hospital replied vide letter dated 12.01.2018, ie. after lapse of the statutory time frame under the RTI Act. Part reply on point no. (i) of the RTI application was furnished and information on rest of the points was stated to be „not available‟. While allowing first appeal, the FAA, Dr. RML Hospital directed the PIO/Registrar, PGIMER, Dr. RML Hospital to furnish information immediately. In compliance of the FAO, the PIO/Registrar, PGIMER replied vide letter dated 02.02.2018 furnished the following reply:
I am directed to refer to the order dated 27/12/2017 of the FAA on the subject cited above and to intimate that since the matter was not dealt with by the PGIMER, Dr. RML Hospital, the information demanded by you is not available in PGIMER, Dr. RML Hospital.
6. On the other hand, in appeal no. CIC/GGSIU/A/2018/109654, the PIO, GGSIPU did not reply to the RTI application dated 18.10.2017 as per available record.
Facts emerging in Course of Hearing:
7. All the parties are present and heard at length. The appellant submits that certain anonymous and vexatious complaints were filed on Prime Minister's Grievance portal against him on the behest of one Dr. T.P. Yadav, Professor & Head of Paediatrics, Dr. RML Hospital. It is the contention of the appellant that an enquiry was conducted by Dr. RML Hospital and Dr. T.P. Yadav presided over as enquiry officer. The said Dr. T.P. Yadav was also Dean at the PGIMER. It is the contention of the appellant that based on recommendation of an unlawfully constituted enquiry conducted by Dr. RML Hospital and without affording him any opportunity to meet the allegations; the reports were referred to GGSIPU which in turn withdrew his teaching designation without any justification. It is the submission of the appellant that the enquiry conducted by Dr. RML Hospital at the behest of Dr. T.P. Yadav in a partisan manner behind his back resulted in the lopsided decision taken by GGSIPU adversely affecting his career and reputation. It is his contention that the failure of PIOs involved cannot be seen in isolation but are rather deliberate attempts to keep the requested information under wraps.
Submissions of PIO, GGSIPU
8. The PIO, GGSIPU submits that a complaint was received against Dr. Dinesh for conducting clinical trial of drugs without prior sanction of competent authority. He submits that as a consequence of the trial, 2 children died. As a consequence, the teaching designation of appellant was withdrawn. He submits that the first appeal preferred by appellant was disposed of by FAA, GGSIPU vide order dated 08.02.2018 directing the Controller of Examinations with a direction to provide information within 07 days. However, admittedly, the FAO was not complied with. The PIO, Vigilance, GGSIPU has placed elaborate written submissions before the Commission as explanation of non compliance of FAO dated 08.02.2018:
Reference to the RTI application ID No. 6102 and subsequent Appeal no. 1155 of Dr. Dinesh Kumar Yadav, the following is observed.
1. A compliant was received regarding Dr. Dinesh Kumar Yadav.
2. The complaint raised the following issues:
a. Dr. Dinesh Kumar Yadav was the first author of a paper published wherein it is reported that a drug trial was conducted by the author on children.
b. The trial was not approved by the Institutional Ethics Committee.
c. The drug trial was not registered with the Statutory Body.
3. Dr. Dinsh kumar Yadav was a recognized teacher of the University but appointed by Ministry of Health and Family Welfare and posted to Dr. RML Hospital and PGIMER.
4. The original file pertaining to the processing of the complaint is attached.
5. From the attached file following is observed:
a. Specific questions were asked from the institution head with the approval of the Hon‟ble Vice-Chancellor („2-3/N‟ of file). The letter dated 04.07.2017 sent to the institution, copy is placed at ‟18-11/C‟ of the attached file.
b. In response to this letter dated 04.07.2017, two letters were received from the Medical Superintendent of Dr. RML Hospital. One dated 07.07.2017 (placed at ‟75-21/C‟of the attached file) and another dated 25.08.2017(placed at ‟90- 76/C‟of the attached file).
c. In the letter dated 07.07.2017, the Medical Superintendent of Dr. RML hospital asserts that the institution has investigated at the hospital level and communicated to Secretary (Health & Family Welfare) (page „75/C‟ of attached file).
d. As per the copy of the letter sent by the Medical Superintendent of Dr. RML Hospital to the Secretary, Ministry of Health & Family Welfare (copy placed at page „74/C‟of attached file), the Medical Superintendent has recommended for proper enquiry as no institutional approvals were accorded for the trial. This also implies that disciplinary proceedings are being contemplated against Dr. Dinesh Kumar Yadav by the Ministry of Health & Family Welfare; and the documents submitted by the college are a part of the enquiry /proceedings.
e. In the letter dated 25.08.2017 on page 90/C of the attached file, the Medical Superintendent of the institution reiterated the content of the perviouos letter dated 07.07.2017 and also stated that "Dr. Dinesh Kumar Yadav conducted a drug trial without requisite permission of the Institutional Ethics Committee and continued doing so inspite of advise of Institutional Ethics Committee to seek DCGI clearance. The data shows that there have been two deaths. Dr. Dinesh Kumar Yadav was the Principal Investigator( P.I.) of the said trails since he submitted the trial project to Institutional Ethics Committee as Principal Investigator, thus, making him solely responsible for everything related to the trial".
f. On the basis of the letter of Medical Superintendent of Dr. RML Hospital dated 07.07.2017, the file attached was put up on 10.08.2017 (noting at „4/N‟of attached file). The Hon‟ble Vice-Chancellor was pleased to constitute a committee to examine the issue (page „4/N‟of attached file).
g. The duly constituted committee met on 05.09.2017. The minutes of the meeting are placed at „94/C‟ of the attached file.
h. The approval of the minutes and the observations of the undersigned were approved by the Hon‟ble Vice-Chancellor on 08.09.2017 at „5/N‟of the attached file.
i. As the matter was referred to the Ministry of Health & Family Welfare by Medical Superintendent of Dr. RML Hospital for proper enquiry. The document provided by the college are the same set that was sent to the Secretary, Ministry of Health & Family Welfare together with the referral to conduct a proper enquiry, were deemed confidential. Thus, approval was sought to keep the file confidential and the same approved by Hon‟ble Vice-Chancellor.
j. The relevant orders were issued on 20.09.2017 by the In-Charge (Admissions).
k. Based on the approval of the Hon‟ble Vice Chancellor on page 5/N of the attached file, ti was decided to refuse to provide the information and as per section 7(2) of the RTI Act non-providing of requested information is deemed to be refusal of request for information, hence , no reply was given.
The preceding noting is regarding not providing of information within stipulated time.
As the Vigilance Department has more experience with enquiry proceedings, the following clarification is sought regarding the providing of information now:
a. Under the circumstances, can the information be given. b. If yes, should the approval of the Hon‟ble Vice-Chancellor be sought again for releasing this information or not. Or, is the direction of the RTI appellate authority sufficient.
9. The PIO, GGSIPU submits that the information sought by the appellant was not disclosed as per FAO as it was deemed necessary to seek approval of Vice Chancellor, GGSIPU. When it is put to the PIO, GGSIPU as to what role the Vice Chancellor has under the RTI Act after the FAA had directed disclosure of information; the PIO, GGSIPU is unable to cite any cogent reason.
Submissions of PIO, Dr. RML Hospital
10. On the other hand, the PIO, Dr. RML Hospital submits that the files relating to the issue were not traceable at the relevant time and hence information could not be furnished. The PIO, PGIMER has already taken a stand that the issue was not dealt by PGIMER at any stage and hence declined to furnish any information.
Decision:
11. The Commission finds that the RTI application dated 13.10.2017 as addressed to PIO, Dr. RML Hospital was not replied to by the PIO. Specific directions of FAA were flouted. No tangible reasons for unavailability of records or statutory exemptions were relied upon. The reply of PIO dated 12.01.2018 is thus patently unlawful.
12. Similar is the fate of RTI application dated 18.10.2017 addressed to PIO, GGSIPU. The PIO failed to reply in first instance and despite directions of the FAA, the appellant was kept from securing information, which was crucial to him. Awaiting approval of Vice Chancellor, GGSIPU for complying with FAO was patently unlawful.
13. The Commission is not a forum to conduct a fact finding on the issued surrounding the present appeals. The respondent institutions are well within their rights to institute investigations/ enquiry upon the allegations against the appellant in accordance with law. What weighs adversely with the Commission that the Appellant has been condemned unheard. It is plain violation of principles of natural justice as well as Section 4(1)(d) of the RTI Act. The manner in which, information has been denied to the appellant points towards a deliberate attempt to thwart the rights of appellant to defend him.
14. The failure to furnish information has resulted into an apparent loss of appellant. It is an admitted fact that teaching designation of the appellant was withdrawn and no reasons for the same were furnished in violation of Section 4(1)(d) of the RTI. No lawful justification for denial of information has been made out. Information sought directly concerns with the appellant. Adverse action has already been taken against the appellant. There is absolutely no justification in denying the information sought at this stage. In a recent decision of this bench in M. Dinesh v. PIO, Bureau of Immigration, it was held:
.........
Having derived strength from the aforesaid provisions, I am left with no doubt that a man preparing for his self defense in penal proceeding exercises his basic human right. Any impediment in the same would invariably be a breach of human right.
15. The Article 14 of the Indian Constitution moots 'equality before law'. There is absolutely no justification is denying the appellant his Fundamental right. His right to know reasons of adverse action initiated cannot be curtailed citing unsubstantiated allegations. A man is innocent until proven guilty. The acts of PIO present a reflection that respondents have already concluded against the appellant without following due process of law. In Dinesh Trivedi, M.P. and Ors. Vs. Union of India (UOI) and Ors.; MANU/SC/1138/1997, the Hon'ble Supreme Court held that sunlight is the best disinfectant. The Commission sees no reason to keep the information sought under wraps.
16. As a sequel to the aforesaid, the Commission directs the PIO, Dr. RML Hospital to reply RTI application dated 13.10.2017 and furnish complete information free of cost to the appellant. Similarly, the PIO, GGSIPU/ CoE shall furnish complete information against the RTI application dated 18.10.2017. Information shall be furnished within 2 weeks of receipt of this order. Compliance of the decision shall be reported by 10.08.2018 before the Commission.
17. For the failure of PIO, GGSIPU in (i) replying to the RTI application dated 18.10.2017 (ii) complying with the direction of FAA, the Commission directs the registry to issue a show cause notice under Section 20 for maximum penalty. Reply, if any must be received by 10.08.2018.
18. Considering the specific request of the appellant for grant of suitable compensation for the detriment of loss of reputation and mental peace suffered due to non disclosure of information despite directions of the concerned FAAs, the Commission requires the public authorities involved
(i) Dr. RML Hospital (ii) GGSIPU to show cause as to why a token compensation of Rs. 1,00,000/- payable by each of them may not be recovered and awarded to the appellant for continued infringement on the rights of appellant under the RTI Act and the resultant detriment suffered by him. Reply to the aforesaid show cause must be received by 10.08.2018. Further hearing on quantum of compensation shall be notified in due course with hearing under penalty proceedings.
19. The appeals stand allowed. Adjourned for hearing on quantum of compensation and penalty proceedings under Section 20.
(Yashovardhan Azad) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(R.P. Grover) Designated Officer