Central Information Commission
Mrjasbir Singh Arora vs Damodhar Valley Corp. on 27 June, 2016
CENTRAL INFORMATION COMMISSION
August Kranti Bhawan, Bhikaji Cama Place,
New Delhi-110066
File No. CIC/YA/C/2015/900463
File No. CIC/YA/A/2016/000179
File No. CIC/YA/C/2016/000028
File No. CIC/YA/A/2016/000394
File No. CIC/YA/A/2016/000401
File No. CIC/YA/C/2015/000471
File No. CIC/YA/A/2016/000399
File No. CIC/YA/C/2015/000474
File No. CIC/YA/A/2016/001171
File No. CIC/YA/A/2016/000163
File No. CIC/YA/C/2015/000468
File No. CIC/YA/C/2015/000469
File No. CIC/YA/A/2016/001246
File No. CIC/YA/A/2016/000400
File No. CIC/YA/C/2015/000466
File No. CIC/YA/C/2015/000465
File No. CIC/YA/A/2016/000165
File No. CIC/YA/C/2015/000470
File No. CIC/YA/A/2016/000162
Date of Hearing : 14.03.2016 & 30.05.2015
Date of Decision : 27.06.2016
Appellant/Complainant : Shri Jasbir Singh Arora
Delhi
Respondents : Central Public Information Officer
Ministry of Power
Through:
Shri Mahesh Chandra, CPIO/SO
Ms. Satinder Kaur, CPIO/US Admn.
Shri Dilip Kumar, CPIO/US Vigilance
Shri Nitin Kumar, ASO
Information Commissioner : Shri Yashovardhan Azad
Since the present appeals and complaints involve common parties, they
are being dealt with individually by the common present order.
Background of the case whereupon the all the present proceedings are
predicated:
The parties are heard at length. The grievance of the Appellant is that he was
arbitrarily removed from the position of Director (HRD), Damodar Valley
Corporation on the last date of the probation tenure. He states that a writ
petition challenging the act of DVC management is pending adjudication
before the High Court of Delhi. He further states to have been seeking
information in the aforesaid context for the last 10 years. In the course of
hearing, he conceded that he has filed the present proceedings to ensure
favourable redressal of his grievance.
File No. CIC/YA/C/2015/900463
The present complaint is also taken up for hearing. However, a perusal of
record reveals that there is neither any Complaint nor RTI application
annexed onto the record. It transpires that the present bunch of documents
had been registered as a Complaint inadvertently by the Central Registry of
this Commission. Accordingly, the file is disposed of.
The memorandum of complaint be returned to the Central registry.
File No. CIC/YA/A/2016/000179
Information sought& background of the case:
Vide RTI application dated 30.08.2015; the appellant sought to know the communication addresses of the Minister and various officials of Ministry of Power, for the years 2006 & 2012-13. Vide reply dated 29.09.2015, the CPIO intimated the official communication address of the officials, i.e. Ministry of Power, Sharam Shakti Bhawan, Rafi Marg, New Delhi -110001. However, the CPIO denied disclosure of residential address of the said officials invoking clause (j) of Section 18 of RTI Act, 2005. The FAA upheld the decision of CPIO.
File No. CIC/YA/C/2016/000028 Information sought & background of the case:
Vide RTI application dated 03.11.2015; the Complainant sought to know the communication addresses of the Minister and various officials of Ministry of Power, for the years 2006 & 2012-13. The PIO replied on 02.12.2015 intimating the Complainant that an identical RTI application dated 30.08.2015 received from the complainant has been answered suitably. The PIO further informed the complainant regarding the official communication address of the officials, i.e. Ministry of Power, Sharam Shakti Bhawan, Rafi Marg, New Delhi -110001. However, the PIO denied disclosure of residential address of the said officials invoking clause (j) of Section 8 of RTI Act, 2005.
Relevant facts emerging during hearing:
Both parties are present and heard. The complainant states that the PIO did not furnish information asked for. Per contra, the PIO states that any disclosure of private/residential address of officials of ministry of power would have been exempted under clause (j) of Section 8 of RTI Act, 2005. The appellant alleges that certain 'false & forged' affidavits were filed on behalf of the officers of the ministry as mentioned in the RTI application, in connection with the ongoing proceedings pending between him & DVC before the Delhi High Court. As per the appellant, the officers concerned have committed forgery & perjury. The appellant states that he wishes to know the present address of the aforesaid officers to initiate criminal proceedings against them. On the other hand, the CPIO reiterates exemption under Section 8(1)(j).
Decision (on CIC/YA/A/2016/000179 & CIC/YA/C/2016/000028):
After hearing parties and perusal of record, the Commission concurs with the stand of the CPIO. The disclosure of information sought would cause unwarranted invasion in the privacy of govt. servants besides being prejudicial to their security. Non availability of residential address does not put an embargo upon the right of appellant to initiate any proceedings against the officers concerned. The interest involved in the present set of facts is purely private interest.
The appeal lacks merit and is dismissed accordingly. No further action is warranted on the accompanying complaint which is also dismissed.
File No. CIC/YA/A/2016/000394 Information sought & background of the case:
Vide RTI application dated 09.11.2015, the appellant sought copy of any advice issued by CVO, MoP to Damodar Valley Corporation based upon his complaint against O.M. dated 21.05.2002. Vide reply dated 08.12.2015, the PIO informed the appellant that the complaint dated 26.10.2015 made by appellant was under examination and no advice has been issued to DVC thereon. The FAA while upholding the reply of PIO vide impugned order dated 20.01.2016, intimated that the complaint under reference has been transferred to Chairman DVC and DVC Desk of MoP for further action.
Relevant facts emerging during hearing:
Both the parties are present and heard. The appellant alleges that the aforesaid O.M. is bad inasmuch issued by sans any legal authority. It is grievance of the appellant that no corrective action was taken by MoP thereon. In this factual backdrop, the appellant states to have sought action taken report upon his complaint. The CPIO states that no action was taken upon the complaint of the appellant and the same was duly intimated to him.
Decision:
After hearing the parties and perusal of record, the Commission finds the reply of PIO as wells as the impugned FAO to be in order. The Commission is not a forum to review administrative policies of the respondent public authority. The RTI application has been dealt with adequately.
The appeal is disposed of accordingly.
File No. CIC/YA/A/2016/000401 File No. CIC/YA/C/2015/000471 Since the present appeal and complaint emanate from a common RTI application date 19.09.2015, they are being clubbed together for the purpose of hearing and disposal.
Information sought & background of the case:
Vide RTI application dated 19.09.2015, the appellant sought certified copy of affidavit filed by MoP in Civil Writ Petition No. 7359 of 2006 before Delhi High Court and copy of order passed/approved by Minister of Power dated 04.04.2006. Vide reply dated 27.10.2015, the PIO furnished copy of order dated 04.04.2006 however, informed the appellant that the affidavit filed on behalf of Secretary (Power) in the aforesaid writ petition was not traceable.
The appellant preferred first appeal on 11.11.2015 but the same remained unheard. Feeling aggrieved, the appellant approached the Commission.
Relevant facts emerging during hearing:
Both parties are present and heard. The appellant states to be the petitioner in the aforesaid writ petition, which is pending before the Hon'ble Delhi High Court. Upon a query from the Commission as to whether he received a copy of affidavit in question through the process of exchange of pleadings in the High Court, the appellant replies in affirmative. Decision:
After hearing parties and perusal of record, the Commission takes note of the fact that the appellant is already in possession of the information sought through the process of the court. Primarily, all statements made before a court of law in writing or reduced to writing, reply affidavits, rejoinder/ replications etc. do constitute record of the Court. The affidavit in original is stated to be filed before the High Court of Delhi by the respondents with an advance copy to appellant. Admittedly, the appellant is already in possession of the document. The Commission finds the request of the appellant to be impractical thereby putting undue pressure on the public authority.
On the other hand, the Commission finds the reply of PIO to have unearthed the fact, that file concerning a pending judicial proceeding wherein the respondent is arrayed to defend itself could not be traced. The writ petition in question still awaits adjudication and non availability of pleadings with the respondent pose serious questions besides reflecting poorly upon the state of record maintenance at Ministry of Power. The PIO is directed to maintain properly catalogued records within 2 weeks of receipt of this order.
The appeal is disposed of accordingly.
In view of the decision rendered in the present appeal, the Commission is not inclined to pass any further order upon the accompanying complaint separately, which is also disposed in the above terms.
File No. CIC/YA/A/2016/000399 File No. CIC/YA/C/2015/000474 Since the present appeal and complain emanate from a common RTI application date 14.09.2015, they are being clubbed together for the purpose of hearing and disposal.
Information sought & background of the case:
Vide RTI application dated 14.09.2015, the appellant sought to know the details of authority delegated, upon one Shri Puneet K. Goel, Director Thermal, MoP who passed order dated 04.04.2006 on behalf the then Minister of Power, alongwith copy of delegation of authority issued by the then Minister of Power authorising the aforesaid officer. Vide reply dated 18.10.2015, the PIO informed the appellant that the order dated 04.04.2006 was issued with the approval of the then Hon'ble Minister of Power, Shri Sushil K Shinde. The appellant preferred first appeal on 14.11.2015 but the same remained unheard. Feeling aggrieved, the appellant approached the Commission.
Relevant facts emerging during hearing:
Both parties are present and heard. The appellant states that the said the aforesaid order dated 04.04.2006 came to passed by the then Director, Thermal, MoP in compliance of the directive of Hon'ble Delhi High Court. The appellant states that he wants to know if the said order was approved by the then Minister as he apprehends the contrary.
Decision:
After hearing parties and perusal of record, the Commission directs the PIO to furnish the certified copy of the portion of the note whereby the said order dated 04.04.2006 was approved by the then Minter of Power. The information shall be furnished to the appellant free of cost within 2 weeks.
The appeal is allowed in the aforesaid terms. In view of the decision rendered in the present appeal, the Commission is not inclined to pass any further order upon the complaint separately, which is also disposed in the above terms.
File No. CIC/YA/A/2016/001171 Information sought & background of the case:
Vide RTI application dated 31.10.2015; the appellant sought details of comments as received by Ministry of Power from Damodar Valley Corporation upon his representation. The CPIO furnished information on 30.11.2015. Dissatisfied over the relevance of the information furnished, the appellant preferred first appeal. The FAA did not hear the appeal. Feeling aggrieved, the appellant approached the Commission.
Relevant facts emerging during hearing:
Both the parties are present and heard. The appellant states that the CPIO withheld the information and furnished irrelevant annexures while replying the RTI application. Per contra, the CPIO states that the appellant had made a representation to the MoP thereby seeking reinstatement at Damodar Valley Corporation and accordingly, comments were sought from the DVC. The CPIO states that the comments were received from DVC vide their letter dated 23.03.2006 and same has been furnished to the appellant. However, the appellant disputes the contention of CPIO.
Upon a query from the Commission, the CPIO states that no further comments were received by MoP from DVC regarding the representation in question and thus, the information furnished is comprehensive.
Decision:
After hearing the parties and perusal of record, the Commission finds that the RTI application under consideration has been replied to adequately. Though the appellant has raised apprehensions regarding authenticity & exhaustiveness of the information furnished; they are not fortified with any material to substantiate his allegations. In such circumstances, the Commission finds no reason to doubt the veracity of information furnished by the CPIO.
The appeal is dismissed accordingly.
Note: All the appeals & complaints discussed hereunder involve similar questions of fact & law, hence they are being clubbed and being disposed of through a common decision.
File No. CIC/YA/A/2016/000163 File No. CIC/YA/C/2015/000468 File No. CIC/YA/C/2015/000469 Information sought & background of the case:
Vide RTI applications dated 30.08.2015 & 01.09.2015; the appellant desired to inspect 4 files pertaining to DVC division of the Ministry of Power, within 48 hours. Vide reply dated 28.09.2015; the PIO informed the appellant that the files in question were old and not traceable. The FAA upheld the reply of PIO and held the ground of 'life & liberty' under which the information was sought to be non-sustainable. Feeling aggrieved, the appellant approached the Commission.
File No. CIC/YA/A/2016/001246 Information sought & background of the case:
Vide RTI application dated 23.11.2015, the appellant sought inspection of files no. 15/2/2001-DVC & 21/1/2007-DVC from the CPIO DVC desk of Ministry of Power. Vide reply dated 28.09.2015; the CPIO informed the appellant that the concerned files could not be traced despite several efforts. The FAA upheld the decision of CPIO. Feeling aggrieved, the appellant approached the Commission.
File No. CIC/YA/A/2016/000165 File No. CIC/YA/C/2015/000470 File No. CIC/YA/A/2016/000162 File No. CIC/YA/C/2015/000465 Information sought & background of the case:
Vide RTI application dated 06.07.2015, the appellant sought inspection of files no 10/1/2004-DVC and 21/13/2012-DVC pertaining to DVC desk of Ministry of Power. Vide reply dated 28.07.2015, the PIO called upon the appellant to inspect the record sought on 03.08.2015. The appellant carried out inspection but being aggrieved with some missing documents thereof preferred first appeal. The FAA disposed the appeal with an observation that the appellant could still ask for any particular document quoting the reference no. and date. Feeling aggrieved, the appellant approached the Commission.
Relevant facts emerging during hearing:
The appellant states that the inspection for two files under reference was offered but the link file of the file no 10/1/2004-DVC was not made available in the course of inspection. It is also averred that as many as 170 pages were missing from the file no. 21/13/2012-DVC when it was offered for inspection. The PIO produces the aforesaid file before the Commission. Record perused and returned. Upon perusal of the record produced, the Commission finds substance in the contention of appellant inasmuch as many documents finding reference in the notings are missing in the file. The file is neither properly catalogued nor numbered.
File No. CIC/YA/A/2016/000400 File No. CIC/YA/C/2015/000466 Information sought & background of the case:
Vide RTI application dated 19.09.2015, the appellant sought copies of all correspondences alongwith note sheets in files no. 21/13/2012-DVC, 9/5/2004, 15/2/2001-DVC(Th-3). Vide reply dated 15.10.2015, the PIO furnished copies of documents from file no. 21/13/2012-DVC and informed that other two files were not traceable. The appellant preferred first appeal but the same remain remained unheard. Feeling aggrieved, the appellant approached the Commission.
Relevant facts emerging during hearing:
It has been averred on the behalf of appellant that the files in question form part of record which are to be retained permanently and any deviation from record retention guidelines warrant stern action against the respondent. Per contra, the respondents state that approximately 400 pages pertaining to file no. 21/13/2012-DVC were furnished to the appellant. As regards, the other two files in question, the PIOs concerned state that the same remain untraced despite best efforts.
Upon a query from the Commission as regards any steps taken by the public authority upon apparent loss of public record specifically in light of the mandate of Public Records Act, 1993; the CPIO fails to offer any plausible reply.
Decision:
After hearing the parties and perusal of record, the Commission finds the reasoning of FAA as well as PIO to be contrary to the mandate of RTI Act, 2005. The PIO as well as FAA failed to note that the information sought could have been denied on the statutory grounds available under Section 8 of the RTI Act only. Interestingly, the impugned order does not include any authoritative statement regarding the whereabouts of files in question. A public authority cannot be absolved from its statutory duty to maintain properly catalogued record. It has been specifically averred by the appellant that the files in question form part of permanent record as per the classification of record for the purposes for record retention, which, in fact has not been disputed by the respondent. In the course of hearing, an attempt has been made by the respective CPIOs to take refuge to the excuse of missing files due to renovation of premises. The Commission finds the excuse non plausible as per framework of RTI Act read with Public Records Act, 1993.
The issue of 'missing or non traceable files' has been dealt and summarized by a coordinate bench of this Commission in Sh. Om Prakash Vs. Land & Building Dept, GNCTD (File No.CIC/DS/A/2013/001788SA). The ratio of the aforesaid decision is reproduced hereinafter:
Unless proved that record was destroyed as per the prescribed rules of destruction/ retention policy, it is deemed that record continues to be held by public authority. Claim of file missing or not traceable has no legality as it is not recognized as exception by RTI Act. By practice 'missing file' cannot be read into as exception in addition to exceptions prescribed by RTI Act. It amounts to breach of Public Records Act, 1993 and punishable with imprisonment up to a term of five years or with fine or both. Public Authority has a duty to initiate action for this kind of loss of public record, in the form of 'not traceable' or 'missing'. The Public Authority also has a duty to designate an officer as Records Officer and protect the records. A thorough search for the file, inquiry to find out public servant responsible, disciplinary action and action under Public Records Act, reconstruction of alternative file, relief to the person affected by the loss of file are the basic actions the Public Authority is legitimately expected to perform.
The orders passed by FAA in the all the preceding appeals are set aside. The CPIO is directed to search all the 'missing' files in question and offer inspection of the files no. 9/5/2004-DVC, 15/2/2001-DVC (TH-3), 21/1/2007-DVC within 4 weeks of receipt of this order free of cost. In case, the aforesaid files cannot be traced, the CPIO concerned shall furnish the appellant a certificate to that affect.
If the 'missing' files still remain untraceable, the respondent public authority is directed to conduct an enquiry inter alia fixing responsibility for the loss of public record besides ensuring reconstruction of records. The enquiry shall be conducted by an officer not below than the rank of Joint Secretary of Ministry of Power and a report thereupon shall be addressed to the Commission. The enquiry officer shall invariably render his unequivocal findings upon the following:
a. Extent of loss of public records and alongwith reasons in light of record retention schedule.
b. Fixation of responsibility for destruction of records. c. Role of delinquent officials & element of malice, if any alongwith correctional / penal measures undertaken.
d. Steps taken for reconstruction of public records.
The respondent public authority is directed to submit enquiry report within 60 days of receipt of this order. The registry is directed to send a copy of the present order to the Secretary, Ministry of Power for information and necessary action.
All the appeals & accompanying complaints are disposed of accordingly. In view of the decision rendered in the present appeals, the Commission is not inclined to pass any further order upon the complaints separately which are also disposed in the above terms.
(Yashovardhan Azad) Information Commissioner