Central Information Commission
Mr.R D Misra vs Mcd, Gnct Delhi on 8 April, 2011
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2011/000117/11553Penalty
Appeal No. CIC/SG/A/2011/000117
Relevant Facts emerging from the Appeal
Appellant : Mr. R.D. Misra
251-D, J&K, Dilshad Garden,
New Delhi-110095.
Respondent : Mr. Rajendra Sharma
Public Information Officer & Administrative Officer
Municipal Corporation of Delhi
Central Establishment Deptt.,
22nd Floor, Dr. SPM Civic Center, Minto Road,
New Delhi
RTI application filed on : 04/10/2010
PIO replied : 15/10/2010
First appeal filed on : 08/11/2010
First Appellate Authority order : Not ordered
Second Appeal received on : 11/01/2011
Information sought:
The Appellant has sought following information regarding transfer/posting orders issued by CED on dated 03.08.10 regarding Head Clerks and UDC vide No, 4863 and 4862 and other order in July, Aug. Sept 2010 CED:
1. Names of those who are not yet relieved in compliance to abovesaid orders. If they are retained, give copy of approval/proposal, order to retain with reasons.
2. How many total clerks were transferred and how many of them complianced/implemented the orders.
3. If some orders were modified, give copy at modification orders.
4. How many requests from concerned department/A&C came to CED to retain some employees (transferred under above orders). Give copy of such requests. Give copy of approval or rejection of them.
5. How much period, each of the above transferred clerks have spent in A & C department.
6. How many employees are retained on the ground that their retirement is near? Give their date of retirement, and the circular behind such retainment. Was their date of retirement verified. . .
7. Why Sh. Sohan Lal Malhotra HC is not relieved. What action is taken on it by CED. Give copy of request from A&C to retain him with approval or rejection. Give copy of all transfer orders and relieving orders of Sh. S.L. Malhotra HC, request to retain him, orders on there requests. I want to inspect his service File, his record in CE and A&C. How much period he has spent in A&C.
8. Is it correct that A&C Sh. M.S.A. Khan forwarded request/note of retainment of transferred employee without the approval of Jt. & AC (Adm). How Dy. A&C (Adm.) Mr. MC Jha sent request note direct and how CED accepted them Give copies of such notes and approval/ rejection.
9. Why Sh.Jamna Prasad HC is not included in this transfer order. How much total period he has spent in A&C in his entire service. Give copy of his previous transfer orders, retaining approval.
10. Allow the inspection of concerned record and certified copies.Page 1 of 4
Reply of the PIO:
The RTI application of the Appellant has been transferred to PIO/A&C Deptt., and AO(Estt.)-II.
First Appeal:
Non-receipt of the information from the PIO.
Order of the FAA:
Not ordered.
Ground of the Second Appeal:
Unsatisfactory response received from the PIO and no action taken by FAA.
Relevant Facts emerging during Hearing on 18 March 2011: The following were present Appellant : Mr. R.D. Misra;
Respondent : Mr. Manish Kumar, UDC on behalf of Mr. Rajendra Sharma, Public Information Officer & Administrative Officer;
"The RTI application had been filed on 04/10/2010 and the PIO states that he sent a letter on 03/12/2010 asking the Appellant to inspect the records. The Appellant states that he did go to inspect the records but could not get the information from the file shown to him. The Commission has perused the queries. The appellant is only seeking information regarding non-compliance of transfer order issued by CED on 03/08/2010 transferring 116 clerks. The Appellant has shown the Commission evidence that showcause notice has been issued to some of the clerks who have not complied with the transfer orders. A perusal of the information sought by the Appellant shows that it should be certainly possible for the PIO to provide the information sought by the Appellant."
Commission's Decision dated 18/03/2011:
The Appeal was allowed.
"The PIO is directed to provide the complete information to the Appellant before 10 April 2011.
The issue before the Commission is of not supplying the complete, required information by the PIO within 30 days as required by the law.
From the facts before the Commission it appears that the PIO is guilty of not furnishing information within the time specified under sub-section (1) of Section 7 by not replying within 30 days, as per the requirement of the RTI Act. It appears that the PIO's actions attract the penal provisions of Section 20 (1). A showcause notice is being issued to him, and he is directed give his reasons to the Commission to show cause why penalty should not be levied on him.
He will present himself before the Commission at the above address on 08 April 2011 at 11.00am alongwith his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20 (1). He will also submit proof of having given the information to the appellant."
Relevant Facts emerging during the showcause hearing on 08 April 2011:
The following were present Appellant : Absent;
Respondent : Mr. Rajendra Sharma, Public Information Officer & Administrative Officer;
The Appellant had sought information effectively asking whether the CED's orders for transfer of Head Clerks and UDCs issued on 03/08/2010 had been implemented or not. The Respondent states that after such orders are issued there has been no system of monitoring whether these orders have been implemented. The Respondent states that the realization that such orders are not been implemented dawned on MCD in Page 2 of 4 December 2010 and showcause notices for major penalty proceedings have been issued to 54 officers who had flouted the transfer orders on 27/12/2010. Even on 27/12/2010 though the PIO admits showcause notices were issued to 54 officers this information was not given to the Appellant. The PIO claims that since he got the records inspected by the Appellant on 04/03/2011 he feels he has discharged his duty. The RTI application had been received on 13/10/2010 and the information should have been provided to the Appellant before 13/11/2010. Instead the information has been provided to the Appellant on 04/03/2011 by offering an inspection of the records. It is evident from the deposition of the Respondent that the process for issuing showcause notice to 54 officers had been initiated on 07/12/2010 but no effort was made to provide this information to the Appellant. The Respondent claims that he did not supply the information in time because his office was shifted from Town Hall to Civic Center during October and November 2010. The Commission notes that first the PIO did not bother to inform the appellant that there could be a delay in providing the information since the office was being shifted within the mandated period of 30 days. Further even on 07/12/2010 when the process of identifying the officers who were not obeying the orders was initiated this information was not provided to the Appellant. The Appellant was made to come for inspection and then provided the information on 04/03/2011. Thus information which should have been provided by the PIO to the Appellant before 13/11/2010 was ultimately provided to him only on 04/03/2011. The PIO has made no effort to provide information to the Appellant and has unnecessarily made him to inspect the records whereas the information was evidently available definitely by 07/12/2010.
Section 20 (1) of the RTI Act states, "Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty five thousand rupees; Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:
Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be." A plain reading of Section 20 reveals that there are three circumstances where the Commission must impose penalty:
1) Refusal to receive an application for information. 2) Not furnishing information within the time specified under sub-section (1) of section 7 - 30 days. 3) Malafidely denying the request for information or knowingly giving incorrect, incomplete or
misleading information or destroying information which was the subject of the request
4) Obstructing in any manner in furnishing the information.
All the above are prefaced by the infraction, ' without reasonable cause'.
Section 19 (5) of the RTI Act has also stated that "In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request."
Thus if without reasonable cause, information is not furnished within the time specified under sub-section (1) of section 7, the Commission is dutybound to levy a penalty at the rate of rupees two hundred and fifty each day till the information is furnished. Once the Commission decides that there was no reasonable cause for delay, it has to impose the penalty at the rate specified in Section 20 (1) of the RTI Act and the law gives no discretion in the matter. The burden of proving that denial of information by the PIO was justified and Page 3 of 4 reasonable is clearly on the PIO as per Section 19(5) of the RTI Act. No reasonable cause has been offered for the delay by Mr. Rajendra Sharma, Public Information Officer & Administrative Officer in providing the information and for making the Appellant unnecessarily to inspect the records when the main information sought by the Appellant was readily available on 07/12/2010. In view of this the Commission sees this as a fit case for levy of penalty under Section-20(1) of the RTI Act on Mr. Rajendra Sharma, PIO & AO.
Since the delay in providing the information has been for over 100 days the Commission imposes the maximum penalty of `25000/- under Section-20(1) of the RTI Act on Mr. Rajendra Sharma, Public Information Officer & Administrative Officer.
Decision:
As per the provisions of Section 20 (1) of the RTI Act 2005, the Commission finds this a fit case for levying penalty on Mr. Rajendra Sharma, Public Information Officer & Administrative Officer. Since the delay in providing the information has been over 100 days, the Commission is passing an order penalizing Mr. Rajendra Sharma `25000/ which is the maximum penalty under the Act.
The Commissioner, Municipal Corporation of Delhi is directed to recover the amount of `25000/- from the salary of Mr. Rajendra Sharma and remit the same by a demand draft or a Banker's Cheque in the name of the Pay & Accounts Officer, CAT, payable at New Delhi and send the same to Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary of the Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi - 110066. The amount may be deducted at the rate of `5000/ per month every month from the salary of Mr. Rajendra Sharma and remitted by the 10th of every month starting from May 2011. The total amount of `25000 /- will be remitted by 10th of September, 2011. This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 08 April 2011 (In any correspondence on this decision, mention the complete decision number.)(AK) CC: To, 1- Commissioner Municipal Corporation of Delhi Town Hall, Delhi- 110006
2. Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi - 110066 Page 4 of 4