Central Information Commission
Varun Krishna vs Oil & Natural Gas Corporation Limited ... on 31 July, 2020
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
िशकायत सं या / Complaint No.(s):- CIC/ONGCL/C/2018/ 635845-BJ+
CIC/ONGCL/C/2018/ 635847-BJ+
CIC/ONGCL/C/2018/ 635850-BJ+
CIC/ONGCL/C/2018/ 637211-BJ+
CIC/ONGCL/C/2018/ 635860-BJ+
CIC/ONGCL/C/2018/ 636396-BJ+
CIC/ONGCL/C/2018 /635934-BJ+
CIC/ONGCL/C/2018/ 635936-BJ+
CIC/ONGCL/C/2018/ 635937-BJ+
CIC/ONGCL/C/2018/ 636342-BJ+
CIC/ONGCL/C/2018/ 636568-BJ+
CIC/ONGCL/C/2018/ 637206-BJ
Mr. Varun Krishna
(E mail [email protected])
.... िशकायतकता /Complainant
VERSUS
बनाम
1. GM (HR) & CPIO,
Oil and Natural Gas Corporation Ltd.,
ONGC, 3rd Floor, NBP Green Heights,
Plot No. C-69, Quadrant 1, Opp. MCA Complex,
Bandra-Kurla Complex, Bandra(E), Mumbai-400051
2. CPIO
Dy. GM (Legal) - Nodal Officer,
Oil & Natural Gas Corporation Limited,
1st Floor, Tower -A, Deendayal Urja Bhawan,
5, Nelson Mandela Marg,
Vasant Kunj, New Delhi 110070
... ितवादीगण /Respondent
Date of Hearing : 20.07.2020
Date of Decision : 31.07.2020
Page 1 of 20
ORDER
RTI - 1 File No. CIC/ONGCL/C/2018/ 635845-BJ Date of filing of RTI application 22.09.2018 CPIO's response 02.11.2018 Date of filing the First appeal Not on record First Appellate Authority's response Not on record Date of diarised receipt of Complaint by the Commission Nil FACTS:
The Complainant vide his RTI application sought information on 02 points pertaining to RTI Reg. No. ONGCL/R/2018/50605 dated 15.06.2018, daily progress mentioning the names, designations, and official mobile numbers of officials with whom RTI was/is lying till the date of filing of the current RTI application and issues related thereto.
The CPIO, vide letter dated 02.11.2018, attached the reply which was also sent through the registered post. Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
RTI - 2 File No. CIC/ONGCL/C/2018/ 635847-BJ Date of filing of RTI application 12.08.2018 CPIO's response 02.11.2018 Date of filing the First appeal Not on record First Appellate Authority's response Not on record Date of diarised receipt of Complaint by the Commission Nil FACTS:
The Complainant vide his RTI application sought information on 03 points pertaining to RTI Reg. No. ONGCL/R/2018/50583 dated 12.06.2018, name, designation and official mobile number of the erring deemed PIO; expected date by which subject RTI dated 12.06.2018 will be disposed; documentary proofs proving that there was no mala-fide intention by the deemed PIO for not disposing the subject RTI.
The CPIO, vide letter dated 02.11.2018, attached the reply which was also sent through the registered post (which is not available on record). Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
Page 2 of 20
RTI - 3 File No. CIC/ONGCL/C/2018/ 635850-BJ
Date of filing of RTI application 12.08.2018
CPIO's response 02.11.2018
Date of filing the First appeal Not on record
First Appellate Authority's response Not on record
Date of diarised receipt of Complaint by the Commission Nil
FACTS:
The Complainant vide his RTI application sought information on 02 points pertaining to RTI Reg. No. ONGCL/R/2018/50586 dated 12.06.2018, name, designation and official mobile number of the erring deemed PIO; expected date by which subject RTI will be disposed; documentary proofs proving that there was no mala-fide intention by the deemed PIO for not disposing subject RTI.
The CPIO, vide letter dated 02.11.2018, attached the reply which was also sent through the registered post (which is not available on record). Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
RTI - 4 File No. CIC/ONGCL/C/2018/ 637211-BJ Date of filing of RTI application 23.10.2018 CPIO's response 20.11.2018 Date of filing the First appeal Not on record First Appellate Authority's response Not on record Date of diarised receipt of Complaint by the Commission Nil FACTS:
The Complainant vide his RTI application sought information on 02 points pertaining to RTI Reg. No. ONGCL/R/2018/50586 dated 12.06.2018 including the file number in which the said RTI was dealt along with total number of pages in the file; copies of all the note sheets and correspondence pages from the dealing file pertaining to disposal of the subject mentioned RTI.
The CPIO, vide letter dated 20.11.2018, informed the Complainant that no file noting was maintained. Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
Page 3 of 20
RTI - 5 File No. CIC/ONGCL/C/2018/ 635860-BJ
Date of filing of RTI application 27.10.2018
CPIO's response 20.11.2018
Date of filing the First appeal Not on record
First Appellate Authority's response Not on record
Date of diarised receipt of Complaint by the Commission Nil
FACTS:
The Complainant vide his RTI application sought information on 03 points pertaining to RTI for Western Offshore Unit, Mumbai, total number of RTI applications received during 01.07.2018 to 31.07.2018,; total number of deemed refusals under Section 7(2) shown by PIO i.e. not replied within 30 days along with grounds available in records for each; name and designation of the officials accountable.
The CPIO, vide letter dated 20.11.2018, provided a point-wise response to the Complainant. Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
RTI -6 File No. CIC/ONGCL/C/2018/ 636396-BJ Date of filing of RTI application 27.10.2018 CPIO's response 20.11.2018 Date of filing the First appeal Not on record First Appellate Authority's response Not on record Date of diarised receipt of Complaint by the Commission Nil FACTS:
The Complainant vide his RTI application sought information on 03 points pertaining to the RTIs for Western Offshore Unit, Mumbai for the period 01.06.2018 to 30.06.2018 including total number of RTI applications received in June 2018 but not disposed till current date; action taken report by controlling authority upon erring officials and issues related thereto.
The CPIO, vide letter dated 20.11.2018, provided information, running into 03 pages, to the Complainant. Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
Page 4 of 20
RTI - 7 File No. CIC/ONGCL/C/2018 635934-BJ
Date of filing of RTI application 20.10.2018
CPIO's response 16.11.2018
Date of filing the First appeal Not on record
First Appellate Authority's response Not on record
Date of diarised receipt of Complaint by the Commission Nil
FACTS:
The Complainant vide his RTI application sought information on 03 points pertaining to RTI for ONGC, Delhi, the number of RTI applications received during 01.08.2017 to 31.08.2017; number of deemed refusals under Section 7(2) shown by PIO i.e. not replied within 30 days; name and designation of the officials accountable for showing deemed refusal of each.
The CPIO, vide letter dated 16.11.2018, provided a point-wise response to the Complainant. Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
RTI - 8 File No. CIC/ONGCL/C/2018/ 635936 -BJ Date of filing of RTI application 10.10.2018 CPIO's response 12.11.2018 Date of filing the First appeal Not on record First Appellate Authority's response Not on record Date of diarised receipt of Complaint by the Commission Nil FACTS:
The Complainant vide his RTI application sought information on 02 points pertaining to First Appellate Order (FAO) ONGCL/A/2018/60143 dated 01.08.2018, inward number and date of receiving subject FAO for compliance; daily progress mentioning names, designations, and official mobile numbers of officials with whom FAO was/is lying till the date of filing of the RTI application and date wise period with each official and details of action taken by him/her.
The CPIO, vide letter dated 12.11.2018, attached the reply which was also sent through the registered post 12 pages, as desired by the Complainant. Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
Page 5 of 20
RTI -9 File No. CIC/ONGCL/C/2018/ 635937-BJ
Date of filing of RTI application 10.10.2018
CPIO's response 12.11.2018
Date of filing the First appeal Not on record
First Appellate Authority's response Not on record
Date of diarised receipt of Complaint by the Commission Nil
FACTS:
The Complainant vide his RTI application sought information on 02 points pertaining to First Appellate Order (FAO) ONGCL/A/2018/60142 dated 01.08.2018, inward number and date of receiving subject FAO; daily progress mentioning names, designations, and official mobile numbers of officials with whom FAO was/is lying till the date of filing of the RTI application and date wise period with each official and details of action taken by him/her.
The CPIO, vide letter dated 12.11.2018, attached the reply which was also sent through the registered post as desired by the Complainant. Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
RTI - 10 File No. CIC/ONGCL/C/2018/ 636342 -BJ Date of filing of RTI application 11.10.2018 CPIO's response 16.11.2018 Date of filing the First appeal Not on record First Appellate Authority's response Not on record Date of diarised receipt of Complaint by the Commission Nil FACTS:
The Complainant vide his RTI application sought information on 04 points pertaining to non- disposed First Appeal dated 15.06.2018, inward number along with file noting held; daily progress mentioning names, & designations of the officials with whom the First appeal was/is lying till the date of filing of the RTI application and date wise period with each official and details of action taken by him/her and other issues related thereto.
The CPIO, vide letter dated 16.11.2018, attached the reply received from the custodian as Annexure 1 and 2. Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
Page 6 of 20
RTI - 11 File No. CIC/ONGCL/C/2018/ 636568-BJ
Date of filing of RTI application 29.10.2018
CPIO's response 20.11.2018
Date of filing the First appeal Not on record
First Appellate Authority's response Not on record
Date of diarised receipt of Complaint by the Commission Nil
FACTS:
The Complainant vide his RTI application sought information pertaining to RTI Reg. No. ONGCL/R/2018/50586 dated 12.06.2018 including page number of tender document containing information.
The CPIO, vide letter dated 20.11.2018, informed the Complainant that information as per para 2(f) of the RTI Act has already been provided and that complete tender document was shared vide reply to his RTI application No. 50586. Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
RTI - 12 File No. CIC/ONGCL/C/2018/ 637206-BJ Date of filing of RTI application 27.10.2018 CPIO's response 05.12.2018 Date of filing the First appeal Not on record First Appellate Authority's response Not on record Date of diarised receipt of Complaint by the Commission Nil FACTS:
The Complainant vide his RTI application sought information on 04 points regarding grounds available in records based upon which no action has been taken on email addressed to CMD- ONGC dated 26.06.2018; name, designation, and official mobile number of the controlling authority with whom he can file a complaint and issues related thereto.
The CPIO, vide letter dated 05.12.2018, provided a point-wise response to the Complainant. The information sought vide point no. 3 was denied from disclosure under Section 8(1)(j) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:Page 7 of 20
Complainant: Mr. Varun Krishna through TC;
Respondent: Mr. N. K. Sudhakaran, CPIO, Mumbai and Mr. Kajal Das, GM (Mech.), Bandra through TC; and Ms. Nirmala Patel, GM (HR) & CPIO, New Delhi and Mr. Mohan K. Kapoor, GM (HR) in person;
The Complainant reiterated the contents of the RTI applications and stated that in all these matters, complete and satisfactory information was not provided by the Respondents. He further alleged that the implementation of the RTI Act, 2005, in the Respondent Public Authority is far from satisfactory and that they were not adhering to the provisions of the RTI Act, 2005 and therefore, desired strict action to be initiated against the erring CPIOs. While stating that in several matters, the response was provided by the CPIO after the completion of the period stipulated under the provisions of the RTI Act, 2005, he specifically mentioned File No(s). CIC/ONGCL/C/2018/ 635845 and CIC/ONGCL/C/2018/ 635847 wherein reply was provided with a delay of 11 and 40 days, respectively, from the date of filing of the RTI applications. The Commission was also in receipt of a written submission from the Complainant dated 17.07.2020 requesting to add Mr. Tripathy in Whatsapp call in order to assist him during the hearing. The Commission was also in receipt of a written submission from the Complainant dated 18.06.2020 wherein while referring to the COVID pandemic situation, the Complainant desired that his hearings be conducted by digital mode as in the past. However, during the hearing, the Complainant stated that Shri Tripathy's presence was not required. In its reply, the Respondent, Mumbai submitted that the information sought was provided to the Complainant, as available on record, vide replies dated 02.11.2018/20.11.2018/12.11.2018. On being queried by the Commission regarding the delay in replying to the RTI applications in above referred two files, it was informed that the then CPIO, Mr. A. K. Agrawal, GM (HR), was the dealing officer at the time and that he superannuated in January, 2020. The Respondent, New Delhi submitted that suitable replies were provided to the Complainant, as per the provisions of the RTI Act, 2005.
On a query from the Commission regarding the First Appeal filed by the Complainant in all the matters under consideration herein, the Complainant replied in the affirmative but admitted that the same were filed beyond the period stipulated under the RTI Act, 2005. In this context he submitted that the First Appeals in Complaint Nos. CIC/ONGCL/C/2018/ 635845-BJ+ CIC/ONGCL/C/2018/ 635847-BJ+ CIC/ONGCL/C/2018/ 635850-BJ+ CIC/ONGCL/C/2018/ 637211-BJ+ CIC/ONGCL/C/2018/ 635860-BJ+ CIC/ONGCL/C/2018/ 636396-BJ+ CIC/ONGCL/C/2018/ 635936-BJ+CIC/ONGCL/C/2018/ 635937-BJ+CIC/ONGCL/C/2018/ 636342-BJ+CIC/ONGCL/C/2018/ 636568-BJ+ CIC/ONGCL/C/2018/ 637206-BJ were filed on 14.05.2020; 20.06.2019 (written submission indicates 26.04.2020); 20.06.2019; 21.07.2019 (written submission indicates 21.06.2019); 20.06.2019; 21.06.2019; 12.05.2020; 12.05.2020; 14.05.2020; 21.07.2019 (written submission indicates 21.06.2019); 12.05.2020; respectively were dismissed by the FAA on the ground that the Appeals were time barred. He also questioned the authority of the CIC for seeking information in respect of filing of the First Appeals as it was held that it was the prerogative of the Complainant to exercise his authority to either file the First Appeal or a Complaint under Section 18 of the RTI Act, 2005.
Page 8 of 20The Commission therefore referred to the provisions of Section 19(1) of the RTI Act, 2005 which was reproduced as under:-
19. (1) Any person who, does not receive a decision within the time specified in sub-
section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority:
Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time."
The Commission was in receipt of written submissions from the Respondent, Mumbai, dated Nil (File No. CIC/ONGCL/C/2018/ 635845-BJ+ CIC/ONGCL/C/2018/ 635847-BJ+ CIC/ONGCL/C/2018/ 635850-BJ) wherein while narrating the brief of the cases, it was submitted that the information was shared with the Applicant in response to his RTI applications and subsequently First Appellate Authority did not entertain the Appeals on the ground that the Appeals filed were time barred in the instant case. Hence, it was requested to quash the complaints lodged by the applicant.
The Commission was in receipt of a written submission from the Respondent, Mumbai, dated Nil wherein (File No. CIC/ONGCL/C/2018/ 637211-BJ) while re-iterating the reply of the CPIO it was stated that the Complainant had filed a First Appeal dated 21.06.2019 which was disposed off by the FAA since it was time barred and no specific reason had been mentioned by the applicant for request of condonement delay in Appeal. The applicant was also advised to move a fresh RTI application, if required. However, the Complainant chose to file a Complaint u/s 18 of the Act.
The Commission was in receipt of a written submission from the Respondent, Mumbai, dated Nil (File No. CIC/ONGCL/C/2018/ 635860-BJ) wherein while narrating the brief of the case, it was submitted that the First Appeal filed by the Complainant dated 20.06.2019 before the Appellate Authority, ONGC, was rejected since it was time barred and no specific reason had been mentioned by the Applicant for condonation of delay. It was further submitted that the information was shared with the Applicant in response to his RTI application which is self explanatory as all the ten applications received under RTI ACT 2005 during the period from 01.07.2018 to 31.07.2018 were disposed within the stipulated period . Hence there were no deemed refusals during the said period.Page 9 of 20
The Commission was in receipt of a written submission from the Respondent, Mumbai, dated Nil wherein (File No. CIC/ONGCL/C/2018/ 636396-BJ) while re-iterating the reply of the CPIO, it was stated that the Complainant had filed a First Appeal dated 21.06.2019 which was disposed off by the FAA since it was time barred and no specific reason had been mentioned by the applicant for request of condonement of delay in Appeal. The applicant was also advised to move a fresh RTI application, if required. However, the Complainant chose to file a Complaint u/s 18 of the Act.
The Commission was in receipt of a written submission from the Respondent, Mumbai, dated Nil (File Nos. CIC/ONGCL/C/2018/ 635936-BJ+ CIC/ONGCL/C/2018/ 635937-BJ) wherein while narrating the brief of the case, it was submitted that the First Appeal was filed by the Complainant dated 12.05.2020 before the Appellate Authority, ONGC which was replied by stating that since the said Appeal had already been disposed off by the then First Appellate Authority of ONGC, hence the same was returned to the Applicant and disposed off the same (copy enclosed) on portal. Therefore, it was submitted that the information was shared with the applicant in response to his RTI application and subsequently First Appellate Authority did not entertain the appeal on the ground that the said Appeal had already been disposed off by the then First Appellate Authority of ONGC in the instant case.
The Commission was in receipt of a written submission from the Respondent dated Nil (File No. CIC/ONGCL/C/2018/ 636568-BJ) wherein while re-iterating the reply of the CPIO, it was stated that the Complainant had filed a First Appeal dated 21.06.2019 which was disposed off by the FAA since it was time barred and no specific reason had been mentioned by the applicant for request of condonement of delay in Appeal. The applicant was also advised to move a fresh RTI application, if required. However, the Complainant chose to file a Complaint u/s 18 of the Act.
The Commission observed that in the present instance the Complainant had not exercised the alternative remedy of exhausting the First Appeal mechanism for seeking information within the time frame prescribed under the provisions of the RTI Act, 2005 and had directly approached the Commission by filing a complaint u/s 18 of the RTI Act, 2005. However, as mentioned above, the Complainant had subsequently filed the First Appeal after completion of the period stipulated under the provisions of Section 19 (1) of the RTI Act, 2005 in all these matters. In this context, the Commission drew the attention of the Complainant to the decision and the spirit enunciated by the Hon'ble Supreme Court of India in Agnivesh Gupta vs Joint Secretary (L&E, A) & CVO and Ors Writ Petition (Civil) No. 864/2019) dated 19.05.2020 wherein a full bench comprising of Hon'ble Dr. Justice D. Y. Chandrachud, Hon'ble Mr. Justice Hemant Gupta and Hon'ble Mr. Justice Ajay Rastogi, the Apex Court while deciding the petition challenging the order of the Chief Information Commissioner dated 17.05.2018 held as under:
"The petitioner has an efficacious and alternate remedy of challenging the order of Chief Information Commissioner in proceedings under Article 226 of the Constitution before the appropriate High Court. The petitioner is at liberty to do so.Page 10 of 20
We clarify that in the above view of the matter, we have not expressed any opinion on the merits of the grievance, which the petitioner is at liberty to pursue before the appropriate High Court."
In the context of utilisation of efficacious alternative remedy, the Commission also referred to the decision of the Division Bench of the Apex Court in Roshina T. vs. Abdul Azeez K.T. & Ors. CIVIL APPEAL NO.11759 OF 2018 Arising out of SLP (C) No. 30465 of 2017) dated 03.12.2018 wherein it was held as under:
"15. It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on thepart of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies byway of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary it should not be exercised casually or lightly on mere asking by the litigant. (See Mohan Pande vs. Usha Rani, 1992 (4) SCC 61 and Dwarka Prasad Agrawal vs BD Agrawal, (2003) 6 SCC 230)."
Moreover, in the matter of GM, Sri Siddeshwara Co-operative Bank Ltd. & Anr. vs. Sri Ikbal & Ors. in CIVIL APPEAL NOS. 6989-6990 OF 2013 (Arising out of SLP(C) Nos.17704-17705 of 2012)dated 22.08.2013, it was held as under:
"27. There is one more aspect in the matter which has troubled us. Against the action of the Bank under Section 13(4) of the SARFAESI Act, the borrower had a remedy of appeal to the Debts Recovery Tribunal (DRT) under Section 17. The remedy provided under Section 17 is an efficacious remedy. The borrower did not avail of that remedy and further remedies from that order and instead directly approached the High Court in extraordinary jurisdiction under Article 226 of the Constitution of India.
31. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented."
A reference can also be made to the decision of the Apex Court in Kanaiyalal Lalchand Sachdev and others vs. State of Maharashtra and others, 2011 (2) SCC 782, the relevant extracts of which are as under:
Page 11 of 20"23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person."
In the light of the aforementioned judgment of the Apex Court as cited above, it is evident that in the judicial / quasi judicial process the procedures for remedial action should invariably be exhausted unless there are compelling reasons for not doing so.
The Commission also referred to the decision of the Hon'ble Supreme Court of India in Central Board of Secondary Education and Anr. Vs. Aditya Bandopadhyay and Ors, SLP(C) NO. 7526/2009 wherein it was held as under:
"Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter- productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of public authorities prioritising 'information furnishing' at the cost of their normal and regular duties."
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:
"(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 and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
Page 12 of 2035..... "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."
The Commission felt that correct and timely response is the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this context, the Commission referred to the decision of the Hon'ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been 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 Page 13 of 20 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."
With regard to providing a clear and cogent response to the Complainant, the Commission referred to the decision of the Hon'ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
" 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."
8.............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."
Furthermore, 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 Hon'ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed ".....that a CPIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information. The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow".
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 Page 14 of 20 appellate authority should be a speaking order giving justification for the decision arrived at."
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
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 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:
Page 15 of 20"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 Commission also observed that the Hon'ble High Court of Delhi in the matter of R.K. Jain v. V.P. Pandey, CPIO, CESTAT, New Delhi in W.P. (C) No. 4785/ 2017 dated 10.10.2017 adjudicated on the correctness of an order of the Commission dated 17.04.2017 whereby the Respondent was cautioned to exercise due care in future and to ensure that correct and complete information is furnished to the RTI applicants. It was decided that:
"2. The grievance of the petitioner is that although the CIC had accepted that there was a delay in providing the necessary information to the petitioner, the CIC had not imposed the penalty as required under Section 20(1) of the Right to Information Act, 2005. It is well settled that imposing of the penalty is a discretionary measure. In Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 a division bench of this Court had considered the question whether the levy of penalty was discretionary and held as under..........
3. In this case it is apparent that the CIC had in its discretion considered that a order cautioning the CPIO would be sufficient. This Court is not inclined to interfere with such exercise of discretion."
Furthermore, the Hon'ble High Court in the matter of R.K. Jain v. CIC and Anr. in W.P.(C) 4152/2017 dated 10.10.2017 had held as under:
"5. The question whether the CIC had the discretion to restrict the penalty or whether penalty as provided under Section 20 of the Act is mandatory, is no longer res integra. The said question was considered by a Division Bench of this Court in Anand Bhushan v.Page 16 of 20
R.A. Haritash: ILR (2012) 4 Delhi 657 and the relevant extract of the said decision is set out below....
6. In view of the above, this Court finds no reason to interfere with the discretion exercised by the CIC. The petition is, accordingly, dismissed."
The High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition No.6504 of 2009 Date of decision: 04.03.2010 (State of Punjab and others vs. State Information Commissioner, Punjab and another); had held as under:
"3. The penalty provisions under Section 20 is only to sensitize the public authorities that they should act with all due alacrity and not hold up information which a person seeks to obtain. It is not every delay that should be visited with penalty. If there is a delay and it is explained, the question will only revolve on whether the explanation is acceptable or not. If there had been a delay of a year and if there was a Superintendent, who was prodding the Public Information Officer to act, that itself should be seen a circumstance where the government authorities seemed reasonably aware of the compulsions of time and the imperatives of providing information without any delay. The 2nd respondent has got what he has wanted and if there was a delay, the delay was for reasons explained above which I accept as justified."
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 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:
Page 17 of 20"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 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 Page 18 of 20 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 judicial pronouncements cited above maintaining the spirit of judicial mechanism, no further intervention of the Commission is required. For redressal of his grievance, the Complainant is advised to approach an appropriate forum. The Commission also advises the Complainant to observe judicial propriety in handling the RTI matters and to ensure that the RTI mechanism in utilized judiciously in view of the spirit of the decision of the Apex Court dated 19.05.2020, as cited above.
However, in 04 files Nos CIC/ONGCL/C/2018/ 635845, CIC/ONGCL/C/2018/ 635847, CIC/ONGCL/C/2018/ 635850 and CIC/ONGCL/C/2018/ 637206, the Commission expressed its serious concerns over the lack of timely response by the CPIO and advised to be alert and vigilant in future and exercise due diligence in respect of the provisions of the RTI Act, 2005.
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 Complaints stand disposed accordingly.
(The Order will be posted on the website of the Commission).
Bimal Julka (िबमल जु का) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अ भ मा णत स या पत त) K.L. Das (के .एल.दास) Dy. Registrar (उप-पंजीयक) 011-26186535/ [email protected] दनांक / Date: 31.07.2020 Page 19 of 20 Copy to:
1. The CMD, ONGC Ltd., 5, Nelson Mandela Marg, Vasant Kunj, New Delhi-110070 (with the advice that proper sensitization of the CPIOs / FAAs is extremely essential in handling the RTI matters and a mechanism needs to be evolved to digitize the records relating to the RTI applications / Complaints etc. so that the statistical information as sought by the Complainant in the aforesaid and similar such applications could be furnished instantly for the benefit of all concerned).Page 20 of 20