Central Information Commission
Pradeep Jain vs Spmcil - India Government Mint, Kolkata on 3 December, 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/IGMKO/A/2017/162941-BJ
Mr. Pradeep Jain
....अपीलकता /Appellant
VERSUS
बनाम
CPIO
India Government Mint,
Diamond Harbour Road,
Alipore Mint Colony, Taratala,
Kolkata, West Bengal-700053
... ितवादीगण /Respondent
Date of Hearing : 30.11.2018
Date of Decision : 03.12.2018
Date of RTI application 30.12.2015
CPIO's response Not on Record
Date of the First Appeal 27.05.2017
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 07.09.2017
ORDER
FACTS:
The Appellant vide his RTI application sought information on 15 points regarding one Rs. 2 Cupro Nickel coin on the theme of Land Vital Resources minted by IGM, Kolkata in the year 1993-1994, notification/instructions/order issued to the mint for minting of the coin, ground on which the mint undertook the minting of the coin and related issues thereto.
Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. The reply of the CPIO/ FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 9
Appellant: Mr. Ishan Jain representative of the Appellant through VC; Respondent: Dr. Punam Chaturvedi, Dy. Manager (OL) & PIO through VC;
The Appellant's representative reiterated the contents of the RTI application and stated that no response was received by him against his RTI application/ First Appeal. Explaining that the queries raised in the RTI application concerned the larger public interest, he flagged the issue of fraudulent circulation of fake Rs. 2 Cupro Nickel coin minted in 1993-94 in the market and alleged that it was sold for Rs. 30,000,00/- approximately. It was also submitted that incorrect and misleading response was provided by the Respondent in their written submission since dyes used for preparation of the coins ought to be held and available with the Public Authority. In its reply, the Respondent while tendering her unconditional apology submitted that no record relating to the RTI application was available with them and that the records sought pertained to a very old period which could not be traced since most of the employees having knowledge about the subject matter had since retired or were transferred to other Government Offices. On being queried regarding the fate of the RTI application and the utter mismanagement of records in the public authority, no satisfactory response was offered by the Respondent. The Appellant in turn stated that the submission of the Respondent regarding the non-availability of RTI register for the period when the application reflected the state of affairs of the record keeping within the Public Authority. The Commission was in receipt of a written submission from the Respondent dated 20.11.2018, wherein it was stated that on receipt of the notice of hearing, they came to know about the RTI application and that on checking the records it was observed that the RTI register of that period was not available and the present register had records from July, 2016.
The Appeal in the matter had been filed after more than 17 months and was received in their office on 31.05.2017 but no document/ file was available with them since the entire file was inadvertently misplaced. The records of the RTI queries were not traceable and the PIO at that time had left the job of SPMCIL, Kolkata in January, 2016. Subsequently, he retired in July, 2016. During 2015-18, 4 PIOs and 3 Appellate Authorities had changed. Due to delay in filing First Appeal it had become difficult to gather information as the concerned PIOs were not there and that he got transferred to this unit in Feb. 2017 and was given the charge of PIO on 19.07.2017. The sought information pertained to a period prior to the corporatization and was more than 20 years old and no records were available except that 380 pieces of coins were minted during the sought period. In 2006 their organization was corporatized and became a unit of SPMCIL and during 2012-14, 90 % of the employees opted for Government Service. During the transition period there were hardly four to five employees left in office staff and maintaining files had become very difficult till new recruitments were done. All the Bullion Staff who could have information about the case had either retired or opted for Government Service and had been transferred to various Government Departments. Presently there were very few staff working in the Bullion Department and all the officers were new and employees of SPMCIL. Hence, in this situation, collecting and collating such information would involve substantial diversion of the Public Authority's resources. Hence, the RTI application could not be replied inadvertently and unintentionally due to non-availability of his RTI application in their office in due time.
Page 2 of 9Having heard both the parties at length and on perusal of the available records, the Commission at the outset observed that very pertinent issues involving substantial public interest concerning minting of fake coins and its alleged circulation were raised by the Appellant in his RTI application which required urgent attention and disposal by the Public Authority. Instead, what was reflected in the conduct of the Respondent by way of her admission during the hearing and the written submission dated 20.11.2018 was utter disrespect and disregard to the provisions of the RTI Act, callous and casual attitude in dealing with applications, apportioning of blame on other officials and mismanagement of records which ought to be held and available with the Public Authority. It is indeed difficult to understand the abysmal state of record keeping in the India Government Mint, Kolkata which is one of the oldest and prestigious institution having a rich minting heritage and legacy of producing quality products. Moreover, on a closer perusal of the RTI application, it was found that several queries related to generic issues pertaining to notifications/ orders issued for minting of the said coin, application made by Government/ Semi Government/ Quasi Government Authority, NGOs etc applying for remitting the coin, details of the dyes used for minting their coins, steps taken for their safe custody, etc were raised which pertained to documented record which should have been made available to the information seeker. The issue of counterfeiting currency coins is indeed a very serious offence classified under Chapter XII of the Indian Penal Code, 1860 which prescribes severe punishments for various offences listed under several provisions therein. Moreover Section 12-16 of the Coinage Act, 2011 also enlists several offences and penalties relating to making or melting or destruction of coins and unlawful making, issue or possession of pieces of metal to be used as money. Therefore, it is evident that the issue raised herein involves grave offences and contain palpable public interest and calls for urgent action on the part of the Public Authority.
Furthermore, several queries raised were of such nature, the details of which should have been suo motu disclosed in the public domain in the interest of the citizens 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 realised 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 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 Page 3 of 9 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 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)]."
Page 4 of 9Above 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."
Furthermore, in this context a reference was also made to the OM no. No.1/6/2011-IR dated 15.04.2013 issued by the DoP&T pertaining to guidelines for the implementation of suo motu disclosures under Section 4 of the RTI Act, 2005. Meanwhile in the Report on Transparency Audit of Disclosures u/s 4 of the Right to Information Act by the Public Authorities submitted by Shri A N Tiwari & Shri M M Ansari dated 12.11.2018, the IGM. Kolkata was graded in category "E" with 20% disclosures in the mandatory disclosure audit carried out by the Committee. In the said audit Grade "E" signified less than 60 % score which indicated that Public Authorities mentioned in this group did not meet the minimum disclosure requirements.
The Commission also 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:
Page 5 of 9"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 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."
The Respondent present during the hearing apart from expressing her helplessness in providing access to records, apportioning the blame on other officials, mismanagement of records which ought to be held and available with the Public Authority provided no other reasonable grounds for denial of information. 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 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."
Furthermore, the High Court of Himachal Pradesh in the matter of Block Development Officer, Paonta Sahib vs. State Information Commission and Anr., CWP No. 6072 of 2012 dated 27.06.2018 had held as under:
"9. It is vehemently urged by learned counsel for the petitioner that the impugned order suffers from vice of arbitrariness and, therefore, should be quashed and set aside. It was further argued that the petitioner on receipt of the application had transferred it to the concerned authorities and, therefore, there was no lapse on his part. He would also urge that the petitioner did not know the intricacies of the RTI Act and, therefore, he could not have been penalized.
10. I find no merit in the contention put-forth by the petitioner. It is more than settled that ignorance of law can be no excuse. Once the petitioner is designated as PIO, then Page 6 of 9 all the more he is deemed to have knowledge and even otherwise the least that was required of him was to have acquainted himself thoroughly with the provisions of the RTI Act. Therefore, the explanation as sought to be put- forth by the petitioner at this stage clearly reflects the lackadaisical attitude of the petitioner. The only reasonable explanation for the cause of delay can be accepted and not lame excuses."
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"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. "
In this context, a reference was made to the decision of the Hon'ble High Court of Bombay in the matter of Union of India v. Vishwas Bhamburkar, W.P.(C) 3660/2012 dated 13.09.2013 wherein the Court had in a matter where inquiry was ordered by the Commission observed as under:
"6............It is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever an information is sought and it is not readily available, a thorough attempt needs to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired information. Even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the Page 7 of 9 department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of the record. Unless such a course of action is adopted, it would be possible for any department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the CMD, SPMCIL, to depute an officer of an appropriate seniorority to examine the matter and provide point wise information to the Appellant in accordance with the provisions of the RTI Act, 2005 within 30 days from the date of receipt of this order.
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 Commission was deeply concerned about the abysmal condition of record keeping within the Public Authority. The CMD, SPMCIL was therefore advised to look into the inherent weaknesses in the administrative functioning of the Public Authority Officials and to initiate corrective measures in this regard in the larger public interest. The conduct of the Respondent exposed the wrong doings and poor administrative structure prevailing in the Respondent Public Authority. Hence extraordinary measures need to be initiated to remedy the same expeditiously.
The Appeal stands disposed accordingly.
िबमल जु का)
Bimal Julka (िबमल का
सूचना आयु )
Information Commissioner (सू
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: 03.12.2018
Copy to:-
1. The Secretary, Department of Economic Affairs, M/o Finance, North Block, New Delhi - 110001 Page 8 of 9
2. The Chairman & Managing Director, SPMCIL, Corporate Office, 16th Floor, Jawahar Vyapar Bhavan, Janpath, New Delhi-110001
3. The General Manager and First Appellate Authority, India Government Mint, Diamond Harbour Road, Alipore Mint Colony, Taratala, Kolkata, West Bengal-
700053 Page 9 of 9