Central Information Commission
Sandipan Khan vs Railway Board on 5 October, 2018
क यसूचनाआयोग
CENTRAL INFORMATION COMMISSION
बाबागंगानाथमाग
Baba Gangnath Marg,
मु नरका, नई द ल -110067
Munirka, New Delhi-110067
File No :CIC/RAILB/A/2017/153589
In the matter of:
Sandipan Khan
...Appellant
Vs.
Shri Anil wason
Joint Director, E(RRB)/CPIO-41,
Railway Board, Rail Bhawan, New Delhi-110001
...Respondent
Dates
RTI application : 04.04.2017
CPIO reply : 04.05.2017
First Appeal : 15.05.2017
FAA Order : 09.06.2017
Second Appeal : 01.08.2017
Date of hearing : 16.01.2018, 26.09.2018
Facts:
The appellant vide RTI application dated 04.04.2017 sought certified copy of the recommendations dated 28.10.2009. The CPIO replied on 04.05.2017. The appellant was not satisfied with the CPIO's reply and filed first appeal on 15.05.2017. The First Appellate Authority (FAA) vide order dated 09.06.2017 disposed of the first appeal. Aggrieved with the non-supply of the desired information from the respondent authority, the appellant filed a second appeal under the provision of Section 19 of the RTI Act before the Central Information Commission on 01.08.2017.
Grounds for Second Appeal The CPIO did not provide the desired information.
1
Order
Appellant : Present
Respondent : Shri Anil Wason,
Joint Director cum CPIO along with
Shri P.K. Gupta, SO, Railway Board
During the hearing, the respondent CPIO submitted that they had provided the requisite reply vide their letter dated 04.05.2017 and the First Appellate Authority (FAA)'s order dated 09.06.2017.The reply furnished to the appellant is just and proper and hence the case might be dismissed.
The appellant submitted that he was not satisfied with the reply received from the respondent. He stated that he filed RTI application on 04.04.2017 through which he sought certified copy of the recommendations of the Committee formed by the Railway Board 'to review the present system of recruitment in RRB's" etc. He clarified that he desired to get the full report of the said committee, as submitted before the Railway Board. That he received a reply from the Joint Director/E(RRB) & CPIO, Railway Board vide letter no. MORLY/R/2017/00768 dated 04.05.2017 enclosing a reply prepared by S.O/E(RRB) & APIO, Railway Board prepared on the same date. That the enclosure forwarded reads as under:
"you have been provided information complete in all respects i.e., noting page of action taken on committee's report on the matter of setting of language of question papers in hindi, English and urdu along with the local language listed in eight schedule of the constitution"
He also submitted that the First Appellate Authority vide order dated 09.06.2017 disposed of the first appeal by merely enclosing a reply of the CPIO and did not pass any speaking order.He further submitted that as per section 4(1)(c) of the RTI Act, the information sought by him should have been suomoto disclosed by the respondent authority publicly. He also submitted that he had sought committee recommendations on basis of which circular dated 2 28.10.2009 was issued and the information sought by him in his earlier RTI application dated 18.02.2014 and the present RTI application is not identical.
Based on the above submission of both the parties, the Commission is of the opinion that, the appellant in his RTI application dated 04.04.2017 had sought specific information i.e. a certified copy of the recommendations of the Committee which was constituted to review the present system of recruitment in the RRBs and to suggest measures for expeditious formation of panels. The CPIO, Shri Anil Wason merely enclosed the APIO's reply. Moreover, the reply of Shri Pankaj Gupta, S.O/E(RRB) & APIO was irrelevant. The Commission is unable to understand as to why instead of providing a copy of the recommendations of the above said Committee, the APIO quoted the CIC's order dated 03.11.2016, in which instruction was given for providing noting page of action taken on the committee's report on the matter of fixing of languages of the question papers in hindi, English and urdu along with the local languages listed in the eighth schedule of the constitution. The Commission is aghast to see the way the first appeal was disposed of by the First Appellate Authority, Shri Amitabha Khare. It seems that the First Appellate Authority (FAA) did not even bother to read the contents of the first appeal dated 15.05.2017. The First Appellate Authority (FAA) had not discharged his duties properly entrusted to him by the RTI Act and this act of negligence resulted in the emergence of this second appeal i.e. which compelled the appellant to file for a second appeal before this Commission wasting valuable time of this Commission with already substantial backlog of second appeal cases waiting to be decided upon on merits. The respondent CPIO submitted before the Commission that he was not aware of the stand of the railways i.e. whether the recommendations of the said committee can be given under the RTI Act or not.
The appellant relied on the decision of the Hon'ble Delhi High Court in the case of Mujibur Rehman vs Central Information Commission dated 28.04.2009 in WP(C) 3845/2007. The relevant portion is extracted as below:
3"10. A close and textual reading of Section 20 itself reveals that there are three circumstances, whereby a penalty can be imposed i.e.
(a) Refusal to receive an application for information;
(b) Not furnishing information within the time specified; and
(c) Denying malafidely the request for information or knowingly given incorrect, incomplete or misleading information for destroying information that was the subject matter of the request.
Each of the conditions is prefaced by the infraction "without reasonable cause". The CIC in its second impugned order dated 29.5.2006 clearly recorded that the 6th respondent did not furnish any reasonable cause for the delay and that this fact stood "established". It desisted from imposing the penalty which it was undoubtedly competent to under Section 20 (1). It, however, recommended that action should be taken against the concerned Public Information Officer i.e. the sixth respondent under Section 20 (2). That part of the order is not in dispute.
11. Now, it is a well-established proposition that a Tribunal - as the CIC un-deniedly is - can be corrected in exercise of judicial review jurisdiction by the High Court, if it fails to exercise jurisdiction lawfully vested in it or acts beyond its jurisdiction, an expression that includes WP (C) No.3845/2007 Page 7 acting contrary to the provisions of law, or established principles of law or the Constitution. This proposition has been in existence for half a century since Hari Vishnu Kamat v. Ahmad Ishaque AIR 1955 SC 233, where the Supreme Court declared the parameters of judicial review against orders of quasi judicial bodies, and tribunals. These were explained in the later judgment, in Surya DevRai v. Ram ChanderRai 2003 (6) SCC 675, in the following terms:
"....... the High Court was not justified in looking into the order of December 2, 1952, as an appellate court, though it would be justified in scrutinizing that order as if it was brought before it under Article 226 of the Constitution for issue of a writ of certiorari. The limit of the 4 jurisdiction of the High Court in issuing writs of certiorari was considered by this Court in Hari Vishnu Kamath v. Ahmad Ishaque 1955- IS 1104 : ((S) AIR 1955 SC 233) and the following four proposition were laid down :-
"(1) Certiorari will be issued for correcting errors of jurisdiction; (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. Once consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous.
(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."
12. The Court while considering a complaint about the Tribunal infracting its bounds has to be alive to the fact that primary discretion in such cases is with the statutory Tribunal. At the same time, once it is established that the Tribunal, for no apparent reason, either exceeded its WP (C) No.3845/2007 Page 8 jurisdiction or failed to exercise jurisdiction lawfully vested in it, the High Court would be justified in interfering with its orders.
13. In this case, order dated 29.5.2006 as well as the previous order of 27.3.2006 establishes that the information sought was furnished after CIC issued its orders. Moreover, shockingly, the petitioner was issued with charge-sheet - a fact borne from the order dated 29.5.2007, for "not having taken recourse to the remedies available within the public 5 authority". In other words, the petitioner was sought to be proceeded against departmentally for the sin of approaching the PIO under the RTI Act, - a right guaranteed to him in law. In such cases, it is cold comfort for a litigant - such as the petitioner/applicant - who was driven to seek information, to approach the CIC, at Delhi, to be told that the erring official would be proceeded with departmentally especially after recording that the lapse i.e. the delay or even the unreasonableness of withholding of information was unjustified. The petitioner in effect was doubly deprived - in the first instance, of the information which was sought for, and secondly, he was exposed to an unjustified threat of enquiry. In these circumstances, even though the CIC recommended disciplinary action under Section 20 (2), its denial of any penalty order under Section 20, in the considered opinion of this Court, cannot be upheld.
14. As far as the sixth respondent's contention regarding possible prejudice in his departmental enquiry is concerned, this Court feels that an order under Section 20 would not in any manner come in the way of his defenses, lawfully available to him in such proceedings. The sixth respondent is not denying the findings recorded in the order dated 29.5.2006; in fact he has not even challenged it. 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 WP (C) No.3845/2007 Page 9 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.
6These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy.
15. In the above circumstances, Court is of the opinion that the impugned order to the extent it discharges the sixth respondent of the notice under Section 19 (8) and does not impose the penalty sought for has to be declared illegal. In this case, the penalty amount (on account of the delay between 28.12.2005 and the first week of May, 2006 when the information was given) would work out to Rs.25,000/-. The third respondent is hereby directed to deduct the same from the sixth respondent's salary in five equal instalments and deposit the amount, with the Commission.
16. In the circumstances of the case, the third respondent shall bear the cost of the proceedings quantified at Rs.50,000/- be paid to the petitioner within six weeks from today."
The appellant submitted that the CPIO malafidely misrepresented the fact and hence he pressed for penalty against the CPIO and payment of compensation to him for the harassment and detriment caused to him by the respondent authority concerned in the present case.
The Commission after going through the records in details finds it appropriate to briefly examine the facts of the case which are relevant. That on 03.11.2016, this Commission had decided a second appeal case of the same appellant in respect of his RTI application dated 18.02.2014 in which he had sought copies of the policy of the Ministry of Railways with regard to the medium of language to be used in the question papers of the recruitment examinations conducted by railways, names of the languages which are used for setting question papers of the recruitment examinations at present, copies of all the relevant government orders, instructions, circulars, notifications etc in respect of the above, copies of all the file-notings in respect of the policy formulation as mentioned above etc. The order dated 03.11.2016 was as follows:
7"During the hearing the appellant submitted that he got the reply on 06.10.2016 only after issuing of hearing notice by this Commission which is incomplete in connection with RTI application dated 18.02.2014. The reply is delayed which is admitted by the CPIO herself. The CPIO submitted that the post of the CPIO was vacant. Hence, the reply could not be provided in time. The Commission did not consider it a valid reason. The FAA is hereby directed to submit a report alongwith the then CPIO's explanation for the above lapse.
On perusal of the case record and on the basis of the submission of the respondent and of the appellant, it transpired that information provided was also deficient in nature.
The respondent CPIO is directed to provide the following information complete in all respects to the appellant within 21 days of the receipt of the order:-
"Declaration on affidavit that the circular which was provided to the appellant is the only circular on this subject available on record;"
CPIO may note that non-compliance of this order may lead to penal action u/s 20(1) of the RTI Act.
A copy of the compliance report is to be submitted to the Commission urgently thereafter for record."
The CPIO Shri Anil Wason, Joint Director, Establishment declared on oath vide affidavit dated 22.12.2016 that the information sought by the appellant vide his RTI application dated 18.02.2014 has already been provided vide letter dated 06.10.2016 to the appellant.
The CPIO vide letter dated 06.10.2016 had provided the copy of the railway board's letter no. E(RRB)/2009/25/20 dated 28.10.2009.
The railway board's letter no. E(RRB)/2009/25/20 dated 28.10.2009 reads as follows:
8"The Chairmen, All Railway Recruitment Boards Sub. : Streamlining of working of RRBs.
Railway Board had recently constituted a committee to review the present system of recruitment in RRBs and to suggest measures for expeditious formation of panels. The following recommendations have been accepted by the Board. Board desire that these recommendations be implemented at the earliest and compliance reported to the Board....................................."
The present RTI application emerged from the above reply of the CPIO. In the above stated railway board's letter dated 28.10.2009, it was mentioned that the Railway Board had at that time constituted a committee to review the present system of recruitment in RRBs and to suggest measures for expeditious formation of panels. Hence, the appellant wanted to get a copy of the complete recommendations of the said Committee.
The Commission is aghast to see the non-application of mind of the CPIO, Shri Anil Wason while enclosing the letter dated 02.12.2016 and copy of affidavit which was submitted in respect of the compliance of Commission's earlier order dated 03.11.2016 in the case no. CIC/VS/A/2015/900110-AB. Prima facie the reply provided by the CPIO in respect of the present RTI application was irrelevant. It also appears that the present CPIO had knowingly provided incorrect and misleading information to the appellant. Hence, a show- cause notice is issued to Shri Anil Wason, CPIO to explain why action u/s 20(1) and 20(2) of the RTI Act should not be taken against him for providing misleading information to the appellant.
The explanation to the above stated Show Cause notice is to be submitted to the Commission by the respondent CPIO/PIO within 15 days of the receipt of this order. On receipt of the explanation to the said Show Cause notice, further action as deemed appropriate will be taken.
9The respondent CPIO should note that in the case of non-submission of the explanation within the time stipulated above, the Commission has the liberty to take the required decision ex-parte against the respondent CPIO.
Be that as it may, it is clear that misleading information was provided to the appellant. The present respondent CPIO, ERRB is directed to provide information complete in all respects to the appellant, as available on record including certified true copies of the documents sought e.g. note sheet, letters, correspondence, e-mail free of charge u/s7(6) of the RTI Act within 15 days of the receipt of the order.
The respondent CPIO is further directed to send a compliance report containing the copy of the revised reply and the despatch details within 07 more days thereafter to the Commission for record.
In regard to the plea for compensation sought by the appellant, the appellant stated that adequate compensation may be provided to him for causing mental agony, trauma and mental anguish as denial of information has certainly resulted in some amount of harassment to him.
The Commission notes that for the detriment caused the appellant deserves to be compensated. Therefore in exercise of the powers vested in the Commission under section 19(8) (b) of theRTI Act, the Commission directs the respondent authority concerned to compensate the appellant by an amountof Rs. 10,000/- (Rupees ten thousand only) for the inconvenience and detriment caused to him by such flagrant denial of the sought for information to him. The CPIO, ERRB is to ensure that this amount is remitted to the appellant by demand draft/pay order within 30 days from the date of receipt of this order.
A copy of this order is to be endorsed to the Chairman, railway board for information.
With the above direction, the appeal is disposed of. Copies of the order be sent to the concerned parties free of cost.
10Adjunct order : 26.09.2018 Respondent : Shri Anil Wason, Joint Director cum CPIO along with Shri P.K. Gupta, SO, Railway Board Shri Anil Wason, Joint Director cum CPIO submitted that a showcause hearing on the same subject matter was already adjudicated in file no. CIC/RAILB/C/2017/134088. Hence the decision in the present case may be passed in parity.
On perusal of the case record, it was noted by the Commission that a case in a similar subject matter was already heard in file no. CIC/RAILB/C/2017/134088 by the same bench. The decision taken in that case is accordingly squarely applicable in the present case as well.
With the above observation, the showcause proceeding is treated as closed.
Copies of the order be sent to both the parties free of cost.
Amitava Bhattacharyya (अ मताभ भ टाचाय) Information Commissioner ( सच ू ना आय! ु त) Authenticated true copy (अ भ मा णत स या पत त) Ajay Kumar Talapatra (अजय कु मार तलपा ) Dy. Registrar (उप-पंजीयक) 011- 26182594 / [email protected] दनांक / Date 11