Central Information Commission
Rajesh Kumar Sharma vs Oriental Bank Of Commerce on 23 December, 2021
Author: Suresh Chandra
Bench: Suresh Chandra
के य सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग,मु नरका
Baba Gangnath Marg, Munirka
नई द ल , New Delhi - 110067
िशकायत सं या / Complaint No. CIC/OBKOC/C/2017/144887
Rajesh Kumar Sharma ...िशकायतकता/Complainant
VERSUS
बनाम
CPIO: Punjab National Bank
Gurugram ... तवाद गण/Respondents
(Erstwhile Oriental Bank of
Commerce)
Relevant dates emerging from the appeal:
RTI : FA : Not on SA : CNC : 14.01.2019/
07.08.2015 Record 28.09.2015 06.04.2019
CPIO: No Reply FAO :No Order Order : 05.12.2018 Hearing:22.12.2021
CORAM:
Hon'ble Commissioner
SHRI SURESH CHANDRA
ORDER
(23.12.2021)
1. The issue under consideration is the complaint of non-compliance (CNC) of CIC's order dated 05.12.2018 in this matter.
2. Succinctly facts of the case are that the complainant filed an application dated 07.08.2015 under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), Oriental Bank of Commerce, Gurugram, seeking following information:-
Principal Nodal Officer, Complaint Department of the bank had informed to Department of Financial Services (Banking Division) on 07.08.2015 regarding Page 1 of 9 complaint DEABD/E/2015 THAT "It is informed that allegations made by him were investigated and none of the allegations were substantiated" In that regard the following information was sought:
(i) Kindly provide investigation report. Notings and recommendations of competent authorities recommending closure of file.
(ii) Status of complaints dated 30.10.2013, 14.12.2013 and 11.08.2014 originally addressed to the General Manager, Chief Vigilance Officer of bank. Provide copies of his recommendations/remarks/notings/observations etc. The CPIO did not reply to the RTI application. Aggrieved by the same, the complainant had filed a second appeal dated 28.09.2015 before the Commission which was under consideration and the Commission vide order dated 05.12.2018 passed the following directions:
"7. The Commission, after hearing the submissions of both the parties and perusing the records, observes that an Indian Postal Order (IPO) no. 31F063114 has been annexed along with the RTI application dated 07.08.2015 which was stated to be sent to the respondent through speed post bearing no. EP370113617IN. The RTI application has also been sent on the email ID of the respondent bank i.e. [email protected]. Thus, it can be presumed that the RTI application has been delivered to the bank. The Commission, therefore, directs the FAA, Oriental Bank of Commerce, Head Office, Gurgaon to inquire into the matter as to whether the R'II application was received in the Oriental Bank of Commerce, Head Office, Gurgaon and the IPO attached with the RTI application (bearing no. 31F063114) was encashed, if so, what action was taken on the RTI application. The FAA shall also, if required, take appropriate departmental action against the officers responsible for the misplacement of the records. A copy of the inquiry report along with the action taken report may be provided to the Commission as well as to the complainant within a period of six weeks from the date of receipt of a copy of this order."Page 2 of 9
3. The complainant vide letter dated 14.01/06.04.2019 filed complaint for non- compliance of the order of the Commission dated 05.12.2018.
4. In compliance of the order of the Commission, the respondent provided revised information on 28.01.2019.
Hearing on 13.10.2021:
4.1. The complainant attended the hearing through video conference and the respondent remained absent despite notice.
4.2. The Commission passed the following directions on 05.11.2021:
"6. The Commission after adverting to the facts and circumstances of the case, hearing the complainant and perusal of records, observed that the respondent remained absent in spite of written notice being served upon them and the same is viewed seriously by the Commission. In absence of the respondent , the complaint for non-compliance and reasons thereof, if any, cannot be ascertained. In view of the above, the respondent are given a final opportunity to submit their written explanations. Shri Ashok Kumar Mishra, CPIO, is show caused as to why penalty under section 20 (1) of the RTI Act may not be imposed upon each of them for not furnishing the requisite information and for not complying with the Commission's order dated 05.12.2018. The present CPIO is given the responsibility to serve a copy of this order upon the then CPIO and secure his written explanations as well as his attendance on the next date of hearing. All written submissions may be uploaded on the Commission's web portal within 21 days. Meanwhile, the respondent is directed that suitable revised reply/information be made available to the complainant and a copy of the same be uploaded on the Commission's web portal."
Hearing on 22.12.2021
5. The complainant and on behalf of the respondent Shri Ashok Kumar Mishra, Deputy General Manager and CPIO, Shri Jasseem Siddiqui, Chief Manager(Law) and Page 3 of 9 Shri Shantanu Bajpai, Senior Manager(Law), Punjab National Bank, Delhi, attended the hearing through video conference.
5.1. The complainant inter alia submitted that the exemption claimed by the complainant was not applicable in this case as he had sought information regarding public servants and the shelter of section 8 (1) (j) of the RTI Act could not be granted for denial of information since the public interest elements seeped in. The complainant further submitted that the rights to privacy of individuals including public servants prevailed by when a member of the public requested information about a public servant, distinction must be made between "official" information inherent to the position and those that were not or it affected only his/her private life. The complainant argued that the CPIO in this matter remained oblivious to the fact that information related to bank officials who were supposed to act for public good, in discharge of their duties and were accountable instead they played fraud and embezzled public funds through bogus expenditure bills worth laks. The complainant further stated that the protections given by the CPIO to such corrupt bank officials needed to be viewed from that perspective. In that regard, the complainant replied upon the observations passed by the Supreme Court in its judgment dated 04.07.2011 in Ram Jethmalani & Ors. vs. Union of India & Ors reproduced as under:
"75. One of the chief dangers of making exceptions to principles that have become a part of constitutional law, through aeons of human experience, is that the logic, and ease of seeing exceptions, would become entrenched as a part of the constitutional order. Such logic would then lead to seeking exceptions, from protective walls of all fundamental rights, on grounds of expediency and claims that there are no solutions to problems that the society is confronting without the evisceration of fundamental rights. That same logic could then be used by the State in demanding exceptions to a slew of other fundamental rights, leading to violation of human rights of citizens on a massive scale.
.
.
.Page 4 of 9
78. The major problem, in the matters before us, has been the inaction of the State. This is so, both with regard to the specific instances of Hassan Ali Khan and the Tapurias, and also with respect to the issues regarding parallel economy, generation of black money etc. The failure is not of the Constitutional values or of the powers available to the State; the failure has been of human agency. The response cannot be the promotion of vigilantism, and thereby violate other constitutional values. The response has to necessarily be a more emphatic assertion of those values, both in terms of protection of an individual's right to privacy and also the protection of individual's right to petition this Court, under Clause (1) of Article 32, to protect fundamental rights from evisceration of content because of failures of the State. The balancing leads only to one conclusion: strengthening of the machinery of investigations, and vigil by broader citizenry in ensuring that the agents of State do not weaken such machinery."
5.2 The respondent inter alia submitted that in pursuance to the Commission's order dated 05.12.2018, the First Appellate Authority, erstwhile Oriental Bank of Commerce, had inquired into the matter. The relevant portion of the report is reproduced as under:
"ln view of Hon'ble CIC directions, l have gone through the records of matter and submit my report as under:-
The complainant has submitted that he had sent his RTI application dated 07.08.2015 to the respondent through speed post bearing no. EP370113617IN and also on e-mail lD [email protected].
I have gone through the records and observed that one RTI application dated 07.08.2015 having IPO no.31F066339 of Sh. Rajesh Kumar Sharma was received by the CPIO on 14.08.2015 and after receiving the requisite fee same was disposed of by the CPIO on 04.12.2015.
It is also pertinent to note that while disposing of 13 complaints and 5 appeals of Sh. Rajesh Kumar Sharma, Hon'ble lnformation Commissioner in his order dated 13.10.2016 para no. 13 mentioned that 'the application dated 07.08.2015 was responded to on 04.12.2015 and the information running into 29 pages was provided to the Complainant/complainant after payment of photocopying charges by him. The Complainant/Complainant stated that he received no Page 5 of 9 information. The respondents showed us a copy of the letter vide which the above information was provided and we have no reason to doubt their submission on this matter.
ln view of above, I have observed that RTI application dated 07.08.2015 of Sh. Rajesh Kumar Sharma with Indian Postal order no. 31F06339 was received and replied.
I have come to conclusion that one RTI application dated 07.08.2015 with IPO no. 31F06339 of applicant was received and replied. The other RTI application of same date i.e. 07.08.2015 with IPO no 31F063114 was not found on record. ln view of that I conclude my report and advise the applicant to submit the RTI application in question to CPIO for submission of reply."
The respondent Shri Ashok Kumar Mishra, inter alia submitted that they could not attend the last hearing as they had not received the hearing notice and that the same was delivered at their Faridabad Office. The respondent further submitted that they confirmed the details from the Registry of the Bench and update their address for further communication. Therefore, there was no fault at their end as the notice was not served to them. Further, in respect of the RTI application, point-wise reply was provided to the complainant vide letter dated 16.12.2021 and the same is reproduced as under:
"(i) The information sought is third party information. Hence, we cannot provide the same being exempted under section 8(1) (j) of RTI Act 2005.
(ii) All the three complaints were dealt on merits by Vigilance Department and investigated by different authorities at different intervals and penalties were awarded to the erring officials by competent authorities wherever allegations were substantiated.
Hon'ble CIC while deciding 18 complaints/appeals filed by you having File No. CIC/SH/C/2015/900436, CICISHIA/2015/001912, CIC/SH/C/2016/000089, CIC/SH/C/2016/000105, CIC/SH/C/2016/000171, CIC/SH/C/2016/000182, CIC/SH/C/2016/000183, CIC/SH/C/2016/000184, CIC/SH/CI/2015/000453, CIC/SHIA/2015/001927, CIC/SHIA/2015/001928, Page 6 of 9 CIC/SHIC/2016/000038, CIC/SH/C/2016/000039, CIC/SH/C/2016/000126, CIC/SH/C/2016/000154, CIC/SH/C/2015/000402, CIC/SH/N2016/000460, and CIC/SH/N2016/000461 on 13.10.2016 has observed as under:
"As far as the information concerning action taken against third party officers is concerned, we note that it is exempted from disclosure under Section 8 (1) (j) of the RTI Act in view of the following observations made by the Supreme Court in judgment dated 3.10.2012 in Girish Ramchandra Deshpande vs. Central Information Commission & Ors. [Special Leave Petition (Civil) No. 27734 of 2012]:- "13. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right."
6. The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of records, observed that the respondent have given the reply dated 16.12.2021 in compliance of the Commission's order dated 05.11.2021. The perusal of records further revealed that the First Appellate Authority of the erstwhile Oriental Bank of Commerce had inquired into the matter regarding non-receipt of the Page 7 of 9 RTI application and concluded that the same i.e. i.e. 07.08.2015 with IPO no 31F063114 was not received at their Branch. However, with respect to another Rti, it is submitted that they had received that RTI application dated 07.08.2015 with Indian Postal order no. 31F06339 filed by the complainant received by the CPIO on 14.08.2015 and after receiving the requisite fee same was disposed of by the CPIO on 04.12.2015. It may be noted that the respondent replied and disposed of both the RTI applications filed by the complainant and that there was no deliberate intention to avoid the RTI application in the present matter.
6.1. Therefore, in absence of any mala fide, it would not be appropriate to take penal action against the CPIOs. Further, perusal of the reply dated 16.12.2021 revealed that the status of the complaints as sought for in the RTI application was informed to the complainant. Keeping in view several judicial pronouncements wherein copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment, reports etc. were qualified to be personal information and also held in fiduciary capacity by the employer. The authorities have claimed exemption by virtue of the provisions under section 8(1) (j) of the RTI Act. The presumption that the legislature understands the needs of its people and that even its discrimination and classifications are based on adequate grounds has been acknowledged by the Supreme Court itself (in special reference No 1 of 2012,[(2012), 10 SCC 1]. The logic of balance exercise of judicial power has an assurance of institutional stability and re-organization of boundary of power is implicit in the Constitutional arrangement. It is contended that the failings of democracy and inadequacies of the democratic process cannot be invoked to negate the core of the democratic principle, namely that ultimate sovereignty vests in the people. Thus, arrangements of governance embodied in the Constitution resulting from the exercise of their free will cannot be used to deprive the ultimate masters of the right of final decision over their destiny. It is argued that "juridification of politics and politization of the judiciary" would be a loss for both the legislature and judiciary and that judiciary cannot act as a "censor of all governmental Page 8 of 9 action". There have been plethora of judicial pronouncements highlighting the issue of restraint by judicial bodies in substituting their wisdom over those who have been assigned the function of implementation of Laws. That being so, there appears to be no ground for further intervention in the matter. Accordingly, the complaint is disposed of.
Copy of the decision be provided free of cost to the parties.
Sd/-
(Suresh Chandra) (सुरेशचं ा) Information Commissioner (सूचनाआयु त) दनांक/Date: 23.12.2021 Authenticated true copy R. Sitarama Murthy (आर. सीताराममत ू !) Dy. Registrar (उपपंजीयक) 011-26181927(०११-२६१८१९२७) Addresses of the parties:
CPIO :
1. Central Public Information Office, Ashok Kumar Sharma, Punjab National Bank, Corporate Office, Law Division, 2rd Floor, East Wing, Plot No.4, Sector 10, Dwarka, New Delhi-110075.
RAJESH KUMAR SHARMA Page 9 of 9