Central Information Commission
Mrjasbir Singh Arora vs Damodhar Valley Corp. on 27 June, 2016
CENTRAL INFORMATION COMMISSION
August Kranti Bhawan, Bhikaji Cama Place,
New Delhi-110066
File No. CIC/YA/C/2015/900460 File No. CIC/YA/C/2015/900457
File No. CIC/YA/A/2016/900411 File No. CIC/YA/A/2016/900413
File No. CIC/YA/C/2015/000502 File No. CIC/YA/A/2016/000161
File No. CIC/YA/C/2015/000467 File No. CIC/YA/A/2016/900416
File No. CIC/YA/C/2015/000500 File No. CIC/YA/A/2016/900418
File No. CIC/YA/C/2015/900461 File No. CIC/YA/A/2016/900412
File No. CIC/YA/C/2015/900458 File No. CIC/YA/A/2016/900419
File No. CIC/YA/C/2015/900462 File No. CIC/YA/A/2016/900414
File No. CIC/YA/C/2015/900459 File No. CIC/YA/A/2016/900420
File No. CIC/YA/C/2015/000499 File No. CIC/YA/C/2015/000504
File No. CIC/YA/A/2016/900415 File No. CIC/YA/A/2016/900421
File No. CIC/YA/C/2015/000455 File No. CIC/YA/C/2015/000501
File No. CIC/YA/A/2016/900417 File No. CIC/YA/A/2016/900423
File No. CIC/YA/C/2015/900456
Date of Hearing : 14.03.2016 & 30.05.2015
Date of Decision : 27.06.2016
Appellant/Complainant : Shri Jasbir Singh Arora
Delhi
Respondents : Central Public Information Officer
Damodar Valley Corporation
Through:
Shri B.S. Sahay, CPIO
Shri P. Toppo, CPIO
Shri Onshuman Mondal
Shri Ashish Banerjee, CPIO
Ms. Nafeesa Bano, Deputy Director
Information Commissioner : Shri Yashovardhan Azad
Since the present appeals and complaints involve common parties, they
are being dealt with individually by the present order.
File No. CIC/YA/C/2015/900460
Information sought& background of the case:
Vide RTI application dated 31.08.2015; the complainant sought communication address of 6 officers of the respondent Damodar Valley Corporation. Vide reply dated 01.10.2015; the CPIO denied information under Section 8(1)(j) as regards 5 officers, however furnished communication address as regards one officer. Feeling aggrieved with denial of information, the complainant approached the Commission.
Relevant facts emerging during hearing:
Both parties are heard. The complainant states that the information sought was wrongly denied by the CPIO. Per contra, the CPIO states that as many as 4 officers had already superannuated and another officer stood repatriated to his parent organization as on date of reply of RTI application. He submits that the communication address of the sole serving officer of DVC was furnished to the appellant.
Decision:
After hearing the parties and perusal of record, the Commission finds that the RTI application in question has been dealt with adequately. No action is warranted at the end of Commission.
The present complaint is disposed of accordingly.
File No. CIC/YA/C/2015/900457 Information sought & background of the case:
Vide RTI application dated 28.08.2015; the complainant sought copies of all documents in file No LD/Suit/455. The CPIO, DVC denied information being related to a court case pending before the High Court of Delhi. Feeling aggrieved, the complainant approached the Commission.
Relevant facts emerging during hearing:
Both parties are present and heard. The CPIO states that since the aforesaid file related to ongoing proceedings between the complainant & public authority (DVC) before the High Court of Delhi, the same were not disclosed to the complainant. The complainant expresses his desire for securing information sought & requests the Commission to take up the present complainant as appeal. The request is allowed. The present complaint is being taken up as appeal.
Upon a query from the Commission as to whether the disclosure of file or part thereof was prohibited by the Hon'ble Delhi High Court, the CPIO, DVC replies in negative. However, the CPIO contends that the file in question contain documents disclosure whereof may jeopardize the interests of DVC & pose threat to officials who had dealt with the file.
Decision:
The contentious issue involved in the present appeal is no longer res integra. Mere pendency of proceedings before a court of law does not prohibit the disclosure of information under the RTI Act, 2005. It is undisputed fact that the court seized with the matter in reference has not prohibited discourse of related information.
Accordingly, the CPIO, DVC is directed to furnish information sought to appellant within 2 weeks of receipt of this order. While doing so, the CPIO shall be at liberty to redact portion of records in accordance with Section 8 of the RTI Act, 2005.
File No. CIC/YA/A/2016/900411 Information sought & background of the case:
Vide RTI application dated 09.09.2015; the appellant sought multifaceted information regarding appointments made against Group A posts in Damodar Valley Corporation since 21.03.2006. Vide reply dated 12.10.2015 the CPIO intimated the appellant that the information sought was already made available to him in compliance of CIC order dated 28.10.2007 and declined to furnish information afresh.
Relevant facts emerging during hearing:
Both the parties are present and heard. At the outset, the appellant states that he does not wish to press the present appeal being satisfied with the information furnished.
Decision:
In view of the statement made by the appellant before the Commission, the present appeal is disposed as not pressed.
File No. CIC/YA/A/2016/900413 File No. CIC/YA/C/2015/000502 Information sought & background of the case:
Vide RTI dated 19.09.2015; the appellant sought copies of letters exchanged between Ministry of Power & DVC regarding the proposed amendment of entire DVC Service Rules 1955. Vide reply dated 23.10.2015 the CPIO, DVC intimated the appellant that proposed amendment was under consideration of ministry of power and declined to furnish information sought. The FAA upheld the decision of CPIO.
File No. CIC/YA/A/2016/000161 File No. CIC/YA/C/2015/000467 Information sought & background of the case:
Vide RTI application dated 30.08.2015; the appellant sought information from CPIO, Ministry of Power about follow up action taken by DVC upon the proposed amendment in the DVC Service Regulations, consequent to a DVC Board resolution regarding the same. Vide reply dated 22.09.2015, the PIO, MoP transferred the RTI application to CPIO, DVC for further action. The CPIO, DVC informed the appellant that no records as desired are available as per the case file and expressed inability to furnish information. The FAA upheld the order of PIO and also held that the document sought were related to a board resolution and hence exempted under 8(1)(d).
Decision:
After hearing the parties and perusal of record, the Commission finds the reasoning of FAA, DVC to be flawed inasmuch as the FAA failed to note the query raised by appellant. The appellant sought to know the follow up action taken upon the DVC board resolution dated 21.03.2006 and not the board resolution itself. A board resolution may have elements of confidentiality, but while a board decision is known publically, the Commission finds no reason not to disclose information regarding the steps taken in execution thereof.
Accordingly, the impugned order is set aside and the CPIO, DVC is directed to furnish complete information to the appellant regarding any steps taken by DVC for amendment of DVC Service Regulations alongwith supporting documents within 4 weeks of receipt of this order under intimation to the Commission. The information shall be furnished free of cost.
The appeals are disposed of accordingly.
In view of the decision rendered in the present appeals, the Commission is not inclined to pass any further order upon the complaints separately which are also disposed in the above terms.
File No. CIC/YA/A/2016/900416 File No. CIC/YA/C/2015/000500 Information sought & background of the case:
Vide RTI application dated 10.09.2015 the appellant sought copies of all note sheets & correspondences in files no. EV/DA-3/2000/Pt. II & EV/DA-3/81- 93 relating to his termination as Director (HRD), DVC. CPIO vide reply dated 12.10.2015, intimated that one file was confidential as per the DVC regulations; & furnished 32 pages from the other file. The FAA upheld the decision of CPIO.
File No. CIC/YA/A/2016/900418 File No. CIC/YA/C/2015/900461 Information sought & background of the case:
Vide RTI dated 01.09.2015; the appellant sought copies of communications between Secretary, DVC for communicating members of the DVC board the date of meting & venue of board meetings held between 01.08.2005 to 31.03.2006. The CPIO vide reply dated 01.10.2015 intimated that the information sought by the appellant was confidential in terms of Regulation10 of the DVC Regulation 1951. The FAA upheld the decision of the CPIO.
Relevant facts emerging during hearing:
Both parties are present and heard. The appellant states that information was denied on extraneous grounds. Per contra, the CPIO DVC asserts that the information sought could not be parted with as per the DVC regulations.
File No. CIC/YA/A/2016/900412 File No. CIC/YA/C/2015/900458 Information sought & background of the case:
Vide RTI application dated 29.08.2015; the appellant sought multifaceted information regarding any approval by competent authority / DVC Board for issuance of Gazatte as communicated to Ministry of Power vide letter NO. Sectt/MOD.DVC-SR/96/54 dated 12.01.2004. Vide reply dated 01.10.2015 the CPIO declined disclosure & informed the appellant that the information sought was confidential as per Regulation10 of the DVC Regulation 1951. The FAA upheld the decision of the CPIO.
Dissatisfied with the information furnished; the appellant preferred first appeal but the same remained undecided. Feeling aggrieved, the appellant approached the Commission.
Relevant facts emerging during hearing:
Parties are present and heard. The appellant states that the CPIO, DVC denied information on extraneous grounds. Per contra, the CPIO DVC states that the appellant had sought copy of approval note of competent authority for issuance of a Gazette notification. He states that no gazette was issued till date. He submits that the approval of competent authority for issuance of gazette under reference was withheld being confidential as per Regulation 10 of DVC (Conduct of Business) Regulations, 1951.
Decision:
After hearing parties and perusal of record, the Commission finds the reasoning of CPIO, DVC to be flawed inasmuch as the cherished right conferred by RTI Act, 2005 cannot be made subject to provisions of DVC regulations, which is a subordinate legislation. Disclosure of information is rule and denial an exception. Such exceptions are set out exhaustively in Section 8 of the RTI Act, 2005 and any further enlargement in their scope by reading extraneous grounds would be unlawful.
The respondent has failed to make out a case of exemption from disclosure of information under Section 8 of the RTI Act. The burden cast upon the CPIO u/s 19(5) of the RTI Act, 2005 remains undischarged. Accordingly, the CPIO, DVC is directed to furnish the information on all the aforementioned RTI applications within 2 weeks of receipt of this order.
The proceedings are disposed of accordingly.
File No. CIC/YA/A/2016/900419 File No. CIC/YA/C/2015/900462 Information sought & background of the case:
Vide RTI dated 08.09.2015; the appellant sought extract of DVC Board approval authorizing its officials to file various affidavits before Delhi High Court in case of appellant. Vide reply dated 16.10.2015; the CPIO intimated the appellant that information sought could not be traced out from the files, but furnished a copy of office order dated 26.04.2002 authorizing one Shri G. Chowdhury to take up court cases of DVC. The FAA directed the CPIO to furnish copy of order no Sectt/EV/DA-3/2000/547. Feeling aggrieved, the appellant approached the Commission.
Relevant facts emerging during hearing:
Both parties are present and heard. The appellant states that he had filed two Civil Writ Petitions before the Delhi High Court challenging his illegal termination from DVC, wherein the Ministry of Power and DVC were arrayed as respondents. He states that replies/affidavits were filed by DVC defending his termination order. In this factual backdrop, the appellant states to have sought the basis of delegation of power/ authorization by DVC board empowering officials to file affidavits on behalf of DVC. Per contra, the PIO states that the officers concerned were duly authorized to take up court cases of DVC. He states that the FAO was duly complied with and copy of order no Sectt/EV/DA-3/2000/547 was furnished to the appellant. He contends that the aforesaid authorization is an internal arrangement of DVC.
Decision:
Upon hearing the parties and perusal of record, the Commission finds that the present RTI application has been dealt with appropriately and no further action is warranted thereupon.
The appeal and the accompanying complaint are disposed of accordingly.
File No. CIC/YA/A/2016/900414 File No. CIC/YA/C/2015/900459 Information sought & background of the case:
Vide RTI dated 30.08.2015; the appellant sought details of follow up done by DVC management with MoP since 2006 for initiating proposed amendments in DVC regulations. On 01.10.2015, the CPIO denied information and intimated that no records as desired were available and the same cannot be provided. The FAA upheld the decision of CPIO.
File No. CIC/YA/A/2016/900420 File No. CIC/YA/C/2015/000499 Information sought & background of the case:
Vide RTI application dated 18.09.2015; the appellant sought certified copies of all correspondences and notesheets of file containing deficiencies of the appellant, forming basis for non absorption of appellant after expiry of probation tenure. The CPIO intimated on 23.10.2015 that the file was not traceable despite best efforts. FAA upheld the decision of CPIO Relevant facts emerging during hearing:
The appellant asserts and draws the attention of the Commission towards a expert committee constituted on 10.08.2005 to examine the issue of termination of the appellant. The committee submitted its report on 05.09.2005 where they recorded that the "File containing the deficiencies of Shri Arora while working as Director HRD, DVC as communicated by Shri A.K. Basu, Ex Secretary DVC to MoP from file No. Secretary Misc. were not made available to them. The appellant alleges that the file no. Secretary Misc.
was hidden deliberately to cover up illegality committed by the then Secretary DVC. CPIO states that the aforesaid file could not be traced despite best efforts.
File No. CIC/YA/C/2015/000504 File No. CIC/YA/A/2016/900415 Information sought & background of the case:
Vide RTI application dated 11.09.2015; the appellant sought information regarding DVC Board approval for prescribing punishment for breach of DVC regulations. Vide reply dated 16.10.2015; the CPIO intimated the appellant that the files in question were not traceable. The FAA upheld the decision of the CPIO. Feeling aggrieved, appellant approached the Commission.
File No. CIC/YA/A/2016/900421 File No. CIC/YA/C/2015/000455 Information sought & background of the case:
Vide RTI application dated 26.08.2015; the appellant sought extract of DVC board resolution whereof period of probation for the appellant as Director HRD, DVC was fixed as 6 months in derogation of regulation 12 of Damodar Valley Corporation Service Regulations. Vide reply dated 01.10.2015; the CPIO intimated that since information sought was not specific, the same cannot be furnished. FAA upheld the decision of CPIO.
Relevant facts emerging during hearing:
Both the parties are present and heard. The appellant states that as per the prevailing practice at DVC regarding appointment of officers, every appointee is put on a probation period of one year. He states that he was appointed on a term of six month probation period, and as such the decision of DVC was in deviation of its usual policy. Through the present RTI application, he states to have sought copy of decision of DVC Board whereby a relatively shorter period of probation was fixed for him. Per contra, the CPIO, DVC states that the aforesaid approval for fixation of probation period was done in year 2003. He states that the concerned files could not be traced despite best efforts.
Upon a query by the Commission as to the retention period of the record/file in question; the CPIO, DVC expresses ignorance.
File No. CIC/YA/C/2015/000501 File No. CIC/YA/A/2016/900417 Information sought & background of the case:
Vide RTI application date 18.09.2015; the appellant sought copies of correspondences exchanged between the then Secretary DVC, Director HRD, DVC and Ministry of Power concerning the appellant claim of reinstatement. Vide reply dated 23.10.2015; the CPIO denied information since the files concerned were not traceable. The FAA upheld the decision of the CPIO. Feeling aggrieved the appellant approached the Commission.
Relevant facts emerging during hearing:
Both parties are present and heard. The appellant states that the then Secretary DVC did not only terminated his services illegally but also thwarted all his attempts to secure justice by portraying a wrong picture before the Ministry of Power. In this backdrop, the appellant states to have sought copies of communication that took place between MoP & Secretary DVC regarding the work and conduct of appellant while working as Director HRD, DVC. Per contra, the CPIO DVC states that all communications related to the then Secretary, DVC were put in a file no. Secretary Misc; which could not be traced after the then Secretary, Shri A.K. Basu demitted office.
Decision:
After hearing the parties and perusal of record, the Commission finds the reasoning of FAA as well as PIO to be contrary to the mandate of RTI Act, 2005. The PIO as well as FAA failed to note that the information sought could have been denied on the statutory grounds available under Section 8 of the RTI Act only. Interestingly, the impugned order does not include any authoritative statement regarding the whereabouts of respective files in question. A public authority cannot be absolved from its statutory duty to maintain properly catalogued record. It has been specifically averred by the appellant that the files in question form part of permanent record as per the classification of record for the purposes for record retention, which, in fact has not been disputed by the respondent. In the course of hearing, an attempt has been made by the respective CPIOs to take refuge to the excuse of missing files due to renovation of premises. The Commission finds the excuse non plausible as per framework of RTI Act read with Public Records Act, 1993.
The issue of 'missing or non traceable files' has been dealt and summarized by a coordinate bench of this Commission in Sh. Om Prakash Vs. Land & Building Dept, GNCTD (File No.CIC/DS/A/2013/001788SA). The ratio of the aforesaid decision is reproduced hereinafter:
Unless proved that record was destroyed as per the prescribed rules of destruction/ retention policy, it is deemed that record continues to be held by public authority. Claim of file missing or not traceable has no legality as it is not recognized as exception by RTI Act. By practice 'missing file' cannot be read into as exception in addition to exceptions prescribed by RTI Act. It amounts to breach of Public Records Act, 1993 and punishable with imprisonment up to a term of five years or with fine or both. Public Authority has a duty to initiate action for this kind of loss of public record, in the form of 'not traceable' or 'missing'. The Public Authority also has a duty to designate an officer as Records Officer and protect the records. A thorough search for the file, inquiry to find out public servant responsible, disciplinary action and action under Public Records Act, reconstruction of alternative file, relief to the person affected by the loss of file are the basic actions the Public Authority is legitimately expected to perform.
The FAOs passed in the all the preceding appeals are set aside. The CPIO, DVC is directed to search all the 'missing' files in question and furnish information, free of cost. In case, the aforesaid files cannot be traced, the CPIO concerned shall furnish the appellant a certificate to that affect. The order shall be complied within 4 weeks of receipt.
Notwithstanding the directions issued in foregoing, in case, the files/ record could not be restored, the respondent public authority is further directed to conduct an enquiry inter alia fixing responsibility for the loss of public record besides ensuring reconstruction of records. The enquiry shall be conducted by the Chief Vigilance Officer, Damodar Valley Corporation and a report thereupon shall be addressed to the Commission. The enquiry officer shall invariably render his unequivocal findings upon the following:
a. Extent of loss of public records and alongwith reasons in light of record retention schedule.
b. Fixation of responsibility for destruction of records. c. Role of delinquent officials & element of malice, if any.. d. Steps taken for reconstruction of public records.
The respondent public authority is directed to submit enquiry report within 60 days of receipt of this order. The registry is directed to send a copy of the present order to the Chairman, DVC for information and necessary action.
The CPIO, DVC is directed to extend cooperation to the enquiry officer.
All the appeals & accompanying complaints are disposed of accordingly. In view of the decision rendered in the present appeals, the Commission is not inclined to pass any further order upon the complaints separately which are also disposed in the above terms.
File No. CIC/YA/A/2016/900423 File No. CIC/YA/C/2015/900456 Information sought & background of the case:
Vide RTI application dated 27.08.2015; the appellant sought copy of approval of competent authority of DVC whereupon he was appointed as Director- HRD, DVC in year 2003. Vide letter dated 01.10.2015; the CPIO, DVC replied as follows:
The information sought for by the applicant is not held in the available files, as such; the same could not be provided. This disposes your application bearing No. DVC/R/2015/002 dated 27.08.2015 made under the RTI ct, 2005.
The FAA upheld the decision of CPIO. The relevant extract is reproduced hereinafter:
"Decision
1. The information sought by Shri J.S. Arora vide his RTI application dated 27.08.2015 under the RTI Act 2005 has already been sent vide letter no. Sectt./CPIO/RTIA-05/15/(J.S.Arora)-1108 dated 01.10.2015 which shall be treated as full and final.
2. ................
Hence the appeal in question is disposed of."
Feeling aggrieved, the appellant approached the Commission.
Relevant facts emerging during hearing:
Both parties are present and heard. The appellant states that the reply of CPIO is evasive and bad in law. Per contra, the CPIO DVC states that the information sought could not be furnished to the appellant since the files could not be traced. He submits that the information sought through the present RTI application has been furnished to the appellant in reply to another RTI application. The appellant disputes the statement made by the CPIO and draws attention of the Commission towards the decision of the CPIO. The CPIO states that the concerned files could not be traced.
Decision:
After hearing the parties and perusal of record, the Commission finds the decision of the CPIO as well as FAA to be patently unlawful. In the present set of facts, the CPIO simply denied disclosure of information vide his reply dated 01.10.2015. The FAA while passing a non-speaking and patently unlawful order; failed miserably to administer the duties cast upon him under the RTI Act, 2005. The CPIO did not assign any reasons for the non availability of the record. In Union Of India v. Vishwas Bhamburkar : W.P.(C) 3660/2012, Hon'ble Delhi High Court interalia dealing with the issue of 'missing public record' observed as:
7. This can hardly be disputed that if certain information is available with a public authority, that information must necessarily be shared with the applicant under the Act unless such information is exempted from disclosure under one or more provisions of the Act. 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 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 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.
8. Since, the Commission has the power to direct disclosure of information provided, it is not exempted from such disclosure, it would also have the jurisdiction to direct an inquiry into the matter wherever it is claimed by the PIO/CPIO that the information sought by the applicant is not traceable/ readily traceable/ currently traceable. Even in a case where the PIO/CPIO takes a plea that the information sought by the applicant was never available with the government but, the Commission on the basis of the material available to it forms a prima facie opinion that the said information was in fact available with the government, it would be justified in directing an inquiry by a responsible officer of the department/ office concerned, to again look into the matter rather deeply and verify whether such an information was actually available in the records of the government at some point of time or not. After all, it is quite possible that the required information may be located if a thorough search is made in which event, it could be possible to supply it to the applicant. Fear of disciplinary action, against the person responsible for loss of the information, will also work as a deterrence against the willful suppression of the information, by vested interests. It would also be open to the Commission, to make an inquiry itself instead of directing an inquiry by the department/ office concerned. Whether in a particular case, an inquiry ought to be made by the Commission or by the officer of the department/ office concerned is a matter to be decided by the Commission in the facts and circumstances of each such case.
In view of the foregoing discussion, the CPIO is directed to search the relevant record and furnish the information sought to appellant within 3 weeks of receipt of this order. In lieu, the CPIO shall certify non-availability of the information alongwith reasons thereof to the appellant.
The CVO, DVC shall enquire about the missing record and submit findings in light of the preceding decision to the Commission within 60 days. The appeal & accompanying complaint are disposed of accordingly.
(Yashovardhan Azad) Information Commissioner