Central Information Commission
Laxmana Ram Suthar vs Indira Gandhi National Open University ... on 13 November, 2018
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/IGNOU/A/2017/604414-BJ-PENALTY
Mr. Laxmana Ram Suthar
....अपीलकता
/Appellant
VERSUS
बनाम
1. CPIO,
Student Evaluation Division
Indira Gandhi National Open University (IGNOU)
Maidan Garhi, New Delhi - 110068
2. Dr. Vijay Laxmi Mishra,
Dy. Director/ Former CPIO,
Indira Gandhi National Open University (IGNOU)
Maidan Garhi, New Delhi - 110068
... ितवादीगण /Respondent
Date of Hearing : 13.11.2018
Date of Decision : 13.11.2018
Date of RTI application 28.10.2016
CPIO's response 16.12.2016
Date of the First Appeal 14.01.2017
First Appellate Authority's response 20.02.2017
Date of diarized receipt of Appeal by the Commission NIL
ORDER
FACTS The Appellant vide his RTI application sought information on 03 points in respect of re-evaluation of answer scripts, rules regarding the re-evaluation of answer scripts, what were the liabilities of an evaluator with regard to checking of answer scripts, details of punishment thereof and issues related thereto.
The CPIO, vide letter dated 16.12.2016 enclosed the copy of Rules & Regulations for re-evaluation of answer scripts. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 20.02.2017 provided additional clarifications on points 2 & 3 of the RTI application.
Page 1 of 6HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Laxmana Ram Suthar in person;
Respondent: Dr. S. K. Pulist, Dy. Dir., Mr. V. G. Sankar, AR and Mr. Gyan Prakash Kujur, Executive Assistant in person;
The Appellant reiterated the contents of his RTI application and stated that the information was received after a delay of 47 days. He categorically objected to the utter disrespect and disregard to the provisions of the RTI Act, 2005 by the Respondent Public Authority. In addition, he narrated several instances whereby the routine e-mails sent to the concerned CPIOs had not been answered and that the study material sought by him was also received after a lapse of 09 months. He drew the attention of the Commission to the lackadaisical manner in which the RTI correspondence was attended to by the Public Authority. With reference to the present RTI application and the Second Appeal, the Respondent reiterated the reply of the CPIO / FAA and explained that all such guidelines were available on its website. It was also emphasized that the FAA had clarified additional points of information sought by him. In respect of the delay in responding to the RTI application, it was submitted that in the year 2016, they had begun receiving of online RTI applications and that the technical issues remained unresolved due to which the delay occurred. On a query from the Commission, it was informed that Dr. Vijay Laxmi Mishra, Dy. Director was the former CPIO who had now been shifted to the Research Unit. The Appellant voiced his serious concern over the delay in receipt of reply.
The Commission referred to the definition of information u/s Section 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."Page 2 of 6
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, 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."
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 recognised 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:
"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."
Furthermore, the Hon'ble Delhi High Court decision in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 it has held that:
"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."Page 3 of 6
A reference was drawn to the decision of the Hon'ble Delhi High Court in the case of J.P Agrawal v. Union of India-2013(287) ELT25(Del.) wherein it was held 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."
Moreover, the Hon'ble Delhi High Court in the decision J P Aggarwal v. Union of India (WP (C) no. 7232/2009 while stating that the CPIO should not mechanically forward the information collected through subordinates, held as under 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. 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. A responsible officer cannot escape his responsibility by saying that he depends on the work of his subordinates. The PIO has to apply his own mind independently and take the appropriate decision and cannot blindly approve / forward what his subordinates have done.
9. This Court in Mujibur Rehman Vs. Central Information Commission MANU/DE/0542/2009 held that information seekers are to be furnished what they ask for and are not to be driven away through filibustering tactics and it is to ensure a culture of information disclosure that penalty provisions have been provided in the RTI Act. The Act has conferred the duty to ensure compliance on the PIO. This Court in Vivek Mittal Vs. B.P. Srivastava MANU/DE/4315/2009 held that a PIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information; that the Act as framed casts obligation upon the PIO to ensure that the provisions of the Act are fully complied. Even otherwise, the settled position in law is that an officer entrusted with the duty is not to act mechanically. The Supreme Court as far back as in Secretary, Haila Kandi Bar Association Vs. State of Assam 1995 Supp. (3) SCC 736 reminded the high ranking officers generally, not to mechanically forward the information collected through subordinates. The RTI Act has placed confidence in the objectivity of a person appointed as the PIO and when the PIO mechanically forwards the report of his subordinates, he betrays a casual approach shaking the confidence placed in him and duties the probative value of his position and the report." The Commission further referred to the decision of 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, wherein it was held as under:
Page 4 of 6"9................................That being so, the legislative intent was that the penal provisions are to be implemented or enforced only against the CPIO and not against any other authority like the senior ranking officer or the Appellate Authority who decides the appeal under Section 19(1). If this was not the legislative intention, the words appearing in Sections 19(1) and (2) would have been differently worded and the construction of the statutory provision would have been entirely different. If the argument canvassed by the petitioner was to be accepted then by that interpretation, we would be expanding the meaning of a CPIO and we would be adding something more into the definition of CPIO than the one as was conceived by the legislature. This is not permissible under law and when the CPIO is only indicated to be officer against whom penal action can be taken under Section 20, we cannot read into the said statutory provision anything more by supplying words or meaning which would enlarge the scope of the penal provisions under Section 20. 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 Appellate Authority is not the custodian of the information or the document. It is only a statutory authority to take a decision on an appeal with regard the tenability or otherwise of the action of the CPIO and, therefore, there is a conscious omission in making the Appellate Authority liable for a penal action under Section 20 of the RTI Act and if that be the scheme of the Act and the legislative intention, we see no error in the order passed by the learned writ Court warranting reconsideration."
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.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, it was noted that the Appellant had received the information sought by him after a substantial period of delay Page 5 of 6 which was against the spirit of the RTI Act, 2005. In view of the decisions of Hon'ble Courts listed above, the Commission finds that as per the provisions of Section 20(1) of the RTI Act, 2005, this is a fit case for levying a penalty of Rs. 1,000/- on Dr. Vijay Laxmi Mishra, Dy. Director/ Former CPIO, IGNOU for the neglect and dereliction of her duties as the CPIO.
The FAA and Registrar (SED), IGNOU is directed to recover the amount of Rs 1,000/- from the salary of Dr. Vijay Laxmi Mishra, Dy. Director/ Former CPIO, IGNOU on receipt of this order and remit the same by way of Demand draft drawn in favour of "Pay and Accounts Officer, CAT" payable at New Delhi and send the same to Dy. Registrar, (CR-II) email: dyregcr2- [email protected], Room No. 106, First Floor, Central Information Commission, CIC Bhavan, Baba Gangnath Marg, Munirka, New Delhi-110067 within 30 days from the date of receipt of this order.
The Commission also instructs the Vice Chancellor of 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: 13.11.2018
Copy to:
1. Prof. Nageshwar Rao, Vice Chancellor, Indira Gandhi National Open University (IGNOU) Maidan Garhi, New Delhi - 110068
2. The First Appellate Authority and Registrar (SED), Indira Gandhi National Open University (IGNOU) Maidan Garhi, New Delhi - 110068
3. DR to CR-II, Central Information Commission, CIC Bhavan, Baba Gangnath Marg, Munirka, New Delhi-110067 Page 6 of 6