Central Information Commission
Ops Marathia vs Kalawati Saran Childrens Hospital,New ... on 7 May, 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.(s):- CIC/KSCHD/A/2017/604778-BJ+
CIC/KSCHD/A/2018/609933-BJ- FINAL
Mr. O. P. S. Marathia
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Kalawati Saran Children's Hospital
Bangla Sahib Marg, Connaught Place
New Delhi - 110001
FAA & AMS
Kalawati Saran Children's Hospital
Bangla Sahib Marg, Connaught Place
New Delhi - 110001
... ितवादीगण /Respondent
Date of Hearing : 28.03.2019/06.05.2019
Date of Decision : 29.03.2019/07.05.2019
ORDER
RTI - I File No. CIC/KSCHD/A/2017/604778-BJ Date of RTI application 04.05.2017 CPIO's response 31.05.2017 04.07.2017 Date of the First Appeal 08.06.2017 First Appellate Authority's response Not on Record Date of diarised receipt of Appeal by the Commission Nil FACTS:
The Appellant vide his RTI application sought information on 04 points regarding certified copies of the Recovery Orders issued by the KSCH for recovery of excess payment made to Staff Nurses (Now Nursing Officers) since 1st January, 2008; certified copies of file notings along with the correspondences made with the concerned Staff Nurses in this regard, etc. The CPIO, vide its letter dated 31.05.2017 enclosed the information after receiving it from the Administration & Accounts Department of the Hospital. Dissatisfied with the response, the Appellant Page 1 of 9 approached the FAA. Subsequently, the CPIO, vide its letter dated 04.07.2017 while referring to First Appeal of the Appellant dated 08.06.2017 again enclosed the information received from the Administration & Accounts Department of the Hospital. The order of the FAA, if any, is not on the record of the Commission.
RTI - II File No.:- CIC/KSCHD/A/2018/609933-BJ Date of RTI application 25.08.2017 CPIO's response 04.10.2017 Date of the First Appeal 27.10.2017 First Appellate Authority's response Not on Record Date of diarised receipt of Appeal by the Commission Nil FACTS:
The Appellant vide his RTI application sought information on 04 points in respect of list of 55 Staff Nurses, as provided by the Administrative Officer, KSCH, certified copies of Leave Orders mentioned therein as also EOL availed by each of such 55 Staff Nurses; copy of Seniority List of Staff Nurses duly updated, till date; name of the Chairperson and other members of the Internal Committee constituted by KSCH to examine the cases of all types of harassment of women employees at workplace, etc. The CPIO, vide its letter dated 04.10.2017 enclosed the desired information provided by the concerned department of the Hospital. Dissatisfied with the response, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. O. P. S. Marathia;
Respondent: Mrs. Sumitra, AO & PIO;
The Appellant reiterated the contents of the RTI applications and stated that an incorrect and misleading reply was provided to him and the information sought was denied in contravention to the provisions of the RTI Act, 2005. It was also alleged that prima-facie there was a big scam in recovery of access payment made to staff nurses with the connivance of the concerned officials and that full details need to be revealed to unearth the same. The Respondent present during the hearing feigned ignorance about it and failed to address any queries raised by the Appellant / Commission. The Commission was in receipt of a written submission from the Respondent dated 27.03.2019 addressed to the Appellant wherein RTI queries were addressed. However, the Respondent present at the hearing was oblivious of the provisions of the RTI Act, 2005 and was totally unprepared to answer any of the issues raised by the Commission.
The Commission observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognized by the Hon'ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was held as under:Page 2 of 9
"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 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." 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 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".
The Commission was appalled to learn about the blatant violation of Section 19 (1) of the RTI Act, 2005 wherein it is specifically mentioned that "Any person who, does not receive a decision within the time specified in subsection (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority" . During the hearing, the Respondent informed that the First Appeal of the Appellant was replied on 04.07.2017 by the First Appellate Authority. However on a closure perusal it was noted that the First Appeal of the Appellant in Case No. CIC/KSCHD/A/2017/604778-BJ was replied by the CPIO while referring to First Appeal dated 08.06.2017 which is in contravention to the provisions of the RTI Act, 2005.
Page 3 of 9The Commission therefore referred to the OM No. 20/10/23/2007-IR dated 09.07.2009, wherein the distinction had been made between the appointment of the CPIO and FAA as per the provision of section 19(1) of the RTI Act, 2005. The relevant extract of the said OM is mentioned as under:
"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.
5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. "
With regard to larger public interest involved in the matter raised by the Appellant in his RTI application, the Commission referred to the decision of the Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest"
must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by Page 4 of 9 banks and financial institutions in India, recognized the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
Every action of a Public Authority is expected to be carried out in Public Interest. The Hon'ble Supreme Court of India in the matter of Kumari Shrilekha Vidyarthi, etc vs. State of UP and Ors., 1990 SCR Supl. (1) 625 dated 20.09.1990 wherein it had been held as under:
"Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest."
Similarly, the Hon'ble Supreme Court of India in the matter of LIC of India vs. Consumer Education and Research Centre, AIR 1995 SC 1811 dated 10.05.1995 had held as under:
"Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public interest. It is the exercise of the public power or action hedged with public element becomes open to challenge."
Furthermore, several queries raised were of such a nature, the details of which should have been suo motu disclosed in the public domain in the interest of public at large. The Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public seeking information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realized only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo-motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act. The Commission therefore referred to the decision of the Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also refers to the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:
"16. It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is Page 5 of 9 no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry an transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
Above all the Hon'ble Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil)No. 707 of 2012 decided on 16.12.2015 had held as under:
"The ideal of 'Government by the people' makes it necessary that people have access to information on matters of public concern. The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for 'open governance' which is a foundation of democracy."
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 against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information. The public authority is also advised to re-examine the methodology by which the RTI applications are dealt with in this organization and evolve a robust mechanism for quick disposal of RTI matters in letter and spirit respecting the provisions of RTI Act.
INTERIM DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of total lack of due diligence to be exercised by the CPIO in answering the queries raised by the Page 6 of 9 Appellant as also considering the larger public interest governing the issues raised in these applications, the Commission adjourned the hearing to be resumed at a short notice.
In the meanwhile, the Commission directs Dr. Rajiv Garg, Director, Kalawati Saran Children's Hospital, New Delhi, under Section 5 (4) / 5 (5) of the RTI Act, 2005, to get these applications examined by an officer of an appropriate seniority and submit a point-wise reply to the Appellant within a period of 15 days from the date of receipt of this order. The Commission also instructs the Director, Kalawati Saran Children's Hospital, New Delhi to appoint the FAA in accordance with the provisions of the RTI Act, 2005 and notify the details of the CPIO/ FAA on its website within a period of 15 days from the date of receipt of this order.
The DR is also directed to fix another short date of hearing in the matter wherein Director, Kalawati Saran Children's Hospital, New Delhi should also be summoned for hearing.
Note: The Dy. Registrar, CIC vide its notice dated 12.04.2019 fixed 06.05.2019 as the next date of hearing in the matter HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. O. P. S. Marathia;
Respondent: Dr. Lokesh Sharma, SMO & Officiating CPIO, Dr. Basab Gupta, AMS & FAA and Dr. R. K. Khanna, AMS in place of Dir.;
The Commission was in receipt of an e-mail from the Dir. Lady Hardinge Medical College and Smt. SSK and KSCH Hospital dated 06.05.2019 wherein he sought exemption from appearing in person for the hearing since he had to attend an urgent meeting at MoH&FW. However, it was intimated that Dr. R. K. Khanna, AMS and Dr. Basab Gupta, AMS & FAA would appear for the hearing in person at the scheduled time. The Appellant reiterated the contents of the RTI application and stated that even though in compliance with the order of the Commission, he was in receipt of a reply from the Dir. Kalawati Saran Children's Hospital, New Delhi, dated 30.04.2019, he remained dissatisfied with it since the copies of leave orders of the 55 nurses and their MACP orders were not disclosed to him in the format desired in the RTI application. He prayed for imposition of penalty and disciplinary action against the then CPIO for her failure to provide the information. In its reply, the Respondent submitted that in compliance with the order of the Commission they had provided point- wise information to the Appellant in both the matters as per the record held and available with them. While explaining the prevailing practice within their organization for leave sanctions, the Respondent submitted that since nurses availed indefinite leave without sanction, the leave sanctions were post facto granted hence the record relating to leave sanctions was not available in the format desired by the Appellant. With regard to appointment of the FAA it was submitted that they had already made appointment in accordance with the provisions of the RTI Act, 2005 and perhaps the Respondent (CPIO) present during the last hearing was unable to coherently and cogently convey the facts to the Commission. It was also submitted that the reply of the CPIO to the First Appeal in case No. CIC/KSCHD/A/2017/604778-BJ was made in compliance with the directions of the designated FAA who had instructed the CPIO to provide necessary response against the First Appeal. On being queried by the Commission, if the post facto leave sanction orders could be provided to the Appellant and the progress of digitization of all administrative records on their website, the Respondent admitted that their existed a lacunae in the process of digitization of records and that they would Page 7 of 9 initiate measures to expedite the same if so directed by the Commission. It was also agreed to re-
examine the response provided on the RTI queries raised by the Appellant during the hearing.
The Commission was in receipt of a para wise reply dated 30.04.2019 sent by the Director, LMHC and Associ. Hospitals to the Appellant in compliance with the direction of the Commission dated 29.03.2019.
Having heard both the parties and on perusal of the available records, the Commission felt that there was an urgent need to develop a robust system of record keeping in the Respondent Public Authority and to review its efficaciousness periodically. The Hon'ble High Court of Gujarat in the matter of Chandravadan Dhruv vs. State of Gujarat and Ors, Special Civil Application No. 2398 of 2013 dated 21.12.2013 held as under:
"24. Since the issue raised by the petitioner is of a vital public importance, we, on our own, made a little research on the subject and found that the Department of Personnel and Training of the Government of India has constituted a Task Force for the effective implementation of Section 4 of the RTI Act. As a part of this Task Force, IT for Change is facilitating a sub group on 'Guidelines for Digital Publication under RTI supporting Proactive Disclosure of Information'. As a part of the work of this sub-group a one day consultation was held on the said subject i.e. 'Formulating guidelines for digital publication under RTI supporting proactive disclosure of information' in Bengaluru. 25.3 How to ensure proper record keeping?
• The required level of proactive disclosure is not possible without appropriate record keeping, and this aspect needs focused attention. There are detailed rules for record keeping and they should be strictly followed and the scheme for it should be published. Record keeping practices may have to be reviewed from the point of view of comprehensive proactive disclosure requirements, especially through digital means.
• Section 4.1.a is very clear about the need for proper record keeping, inducing in digital and networked form. Funds should be earmarked for digitizing records. Complete details of all records that are maintained and available digitally, and about those which are not, with due justification thereof, should be published. Annual reports on compliance with section 4.1.a should be sought by the Information Commissions.
• The costs involved in digitizing resources and maintaining networked computer based record-keeping and information systems is often cited as a major deterrent. It was felt that it is no longer a major issue. India is at par or better in terms of IT issues than many developed countries that maintain high standards of digital publishing of public information. The real cost is in terms human resources, including skills, and these are easily available at all levels in India today.
• An example was given about how a government office in Bangalore was able to scan all its documents at a very low cost. Another example that was discussed was of 'Bhoomi' project in Karnataka, whereby, it was contended that, if open public access to such complex spatial data as the land records of the entire state can be ensured, how can giving access to all textual documents of an office or department be any more difficult."
Moreover, the Commission observed that in its earlier decision it had made its observation regarding the pitiable state of affairs while dealing with the RTI applications by the CPIO who was completely clueless while answering any of the queries raised by the Commission in the last hearing, resulting in Page 8 of 9 unnecessary wastage of precious time of all the parties as well as the Commission. It had also made observation regarding the public interest involved in the matter and the need for suo moto disclosure of information which were pertinent to the instant hearing as well more so for the reason that the Respondent themselves admitted that there were lacunae / shortcomings in the manner of preservation of their records and that digitization of records had not been properly carried out as yet which is an issue of grave concern.
FINAL DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the FAA to re-examine the points raised by the Appellant during the hearing and provide a suitable response with necessary enclosures within a period of 15 days from the date of receipt of this order. The Commission would further advise the Director Kalawati Saran Children's Hospital to develop a robust mechanism for the digitization of all administrative records of the Public Authority in accordance with Section 4 of the RTI Act, 2005 to ensure its availability and preservation in posterity. Taking strong exception to the inadequate knowledge of the CPIO of its duties and responsibilities enshrined in the RTI Act, 2005, the Commission would like to place on record its immense displeasure over the functioning of the CPIO. The Director is instructed to initiate steps to strengthen its administrative mechanism considering the larger public interest in mind.
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 Appeals stand 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: 07.05.2019
Copy to:
1. Secretary, Ministry of Health and Family Welfare, 'A' Wing, Nirman Bhawan, New Delhi-
110011
2. Dr. Rajiv Garg, Director, Kalawati Saran Children's Hospital, Shaheed Bhagat Singh Marg, New Delhi-110001 Page 9 of 9