Central Information Commission
Shishir Chand vs Medical Council Of India on 31 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.:- CIC/MEDCI/A/2018/100466-BJ
Mr. Shishir Chand
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Dy. Secretary & PIO
Medical Council of India, Pocket 14
Sector 8, Dwarka Phase 1
New Delhi - 110077
... ितवादीगण /Respondent
Date of Hearing : 30.05.2019
Date of Decision : 31.05.2019
Date of RTI application 09.09.2017
CPIO's response 01.11.2017
Date of the First Appeal 28.10.2017
First Appellate Authority's response 07.12.2017
Date of diarised receipt of Appeal by the Commission 03.01.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information regarding the list of documents perused by the Ethics Committee that were furnished by the accused doctor (Dr. Atul Chhabra of Tata main Hospital, Jamshedpur) in his defense as well as documents furnished by the Appellant in support of his appeal which were considered by the Ethics Committee and on the basis of which a warning was issued to the accused doctor.
The CPIO, vide its letter dated 01.11.2017 provided a copy of proceedings in respect of Appeal No. 83/2013. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 07.12.2017 stated that the PIO had already provided the relevant information as per available records. As regards point no. 2, it was informed that the minutes of the Executive Committee were already in the public domain on the website www.mciindia.org.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 6
Appellant: Mr. Shishir Chand;
Respondent: Mr. Shikhar Ranjan, Law Officer and Dr. Parul Goel, DS;
The Appellant reiterated the contents of the RTI application and stated that the information sought had not been received by him, till date. It was further articulated that the CPIO/FAA vide letters dated 01.11.2017/07.12.2017 replied on a copy of "post decisional" minutes of meeting of its Ethics Committee with respect to the Appellant's case. Subsequently, his case was re-opened and re-examined by the Respondent in 2015 subsequent to its decision dated 12.12.2014 and in response to serious objections raised by him in the form of a representation dated 30.12.2014 addressed to the President of Respondent Public Authority. It was further articulated that the Respondent had also failed to produce the documents such as Minutes of Meeting of 2014 w.r.t. Appeal No. 83 of 2013 before the Hon'ble Delhi High Court in WP (C) 277 of 2017 preferred by him. Subsequently, the Hon'ble Delhi High Court vide its order dated 05.09.2017 had set-aside the decision of the Respondent dated 12.12.2014. In its reply, the Respondent while reiterating the response of the CPIO/FAA, submitted that a suitable reply as per available record had been furnished to the Appellant. With regard to the decision of the Hon'ble High Court of Delhi at New Delhi in the case of Shishir Chand vs. Medical Council of India (MCI) in W.P.(C) 277/2017, wherein the Appellant had prayed for "setting aside the two decisions of the MCI dated 12.12.2014 and 21.07.2016 in so far as it only awards a "warning" to Respondent No. 2", it was submitted that as per the decision of the Hon'ble High Court dated 05.09.2017, the Ethics Committee had once again considered the matter of the Appellant and after providing an opportunity of hearing to the Appellant as well as the accused Doctor against whom the complaint was made, a final decision was taken on 16.11.2018 by the Ethics Committee. The recommendation of the Ethics Committee was approved by the Board of Governors in January, 2019. Subsequently, the decision of the Committee was communicated to the Appellant on 14.02.2019. Repeatedly it was argued by the Respondent that the complaint filed by the Appellant had been examined by the Ethics Committee at various intervals and inspection of records was also offered to him. However, the Appellant remained dissatisfied with the decision of the Ethics Committee. The Appellant while contesting the above averments of the Respondent, challenged the decision of the Ethics Committee by stating that the same was non-
reasoned/non speaking order. Moreover, the detailed findings had also not been communicated to him.
The Commission was in receipt of a written submission from the Appellant dated 20.05.2019, wherein it was inter alia prayed to furnish an affidavit to the Appellant stating that the minutes of meeting of its Ethics Committee on the basis of which the decision of 12.12.2014 was arrived in Appeal No. 83 of 2013 was not available in the record of the Respondent and impose a heavy cost for denying and stonewalling crucial information and documents. The Commission referred to the definition of information u/s 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:
Page 2 of 6"(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."
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."
With regard to the imposition of penalty on the CPIO/PIO under Section 20 of the RTI Act, 2005, the Commission took note of the ruling of Hon'ble Delhi High Court in W.P.(C) 11271/2009 Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. (delivered on:
01.06.2012) wherein it was held:
" 61. Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable Page 3 of 6 cause. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a showcause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to ful fill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute."
Similarly, the following observation of the Hon'ble Delhi High Court in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 are pertinent in this matter:
"17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued."
Furthermore, the High Court of Delhi in the decision of Col. Rajendra Singh v. Central Information Commission and Anr. WP (C) 5469 of 2008 dated 20.03.2009 had held as under:
"Section 20, no doubt empowers the CIC to take penal action and direct payment of such compensation or penalty as is warranted. Yet the Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely.
......The preceding discussion shows that at least in the opinion of this Court, there are no allegations to establish that the information was withheld malafide or unduly delayed so as to lead to an inference that petitioner was responsible for unreasonably withholding it."
The Appellant could not substantiate his claims regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause. The Commission observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of Page 4 of 6 decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether Page 5 of 6 respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the limited jurisdiction of the Commission under the provisions of Section 2 (f) of the RTI Act, 2005, no further intervention of the Commission is required in the matter. For redressal of his grievance, the Appellant is advised to approach an appropriate forum.
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: 31.05.2019
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