Central Information Commission
Ashish Patel vs National Institute Of Technology, ... on 6 December, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/NITRP/A/2017/161915-BJ
Mr. Ashish Patel
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO
National Institute of Technology,
Add: GE Road, Raipur-492010
... ितवादीगण /Respondent
Date of Hearing : 06.12.2018
Date of Decision : 06.12.2018
Date of RTI application 30.05.2017
CPIO's response Not on Record
Date of the First Appeal 30.06.2017
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 04.09.2017
ORDER
FACTS:
The Appellant vide his RTI application sought information regarding certified copies of all letters and note sheets approved by Director of NIT Raipur in relation to the letter dated 07.03.2017.
Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. The reply of the CPIO/ order of FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Mr. Vijay Singh, AR, Mr. Ajay Sharma, DR and Mr. K. R. Nair, Law Officer through VC;Page 1 of 7
The Appellant remained absent during the hearing. Ms. Varsha, Office Assistant NIC studio at Raipur confirmed the absence of the Appellant. The Respondent informed the Commission that two identical RTI applications had been received by them from the Appellant. One application received through MHRD on 23.06.2017 was responded on 04.08.2017. No First Appeal had been received by them. Due to the demitting of office by the earlier PIO, there was a delay in replying to the RTI application. The Commission was in receipt of a written submission from the Respondent dated 05.12.2018 wherein it was stated that the then PIO Shri Jitendra Dimri working with the institute had resigned and left during the period of the online application. The new PIO had looked into all the complaints received thereafter. He was not informed by the earlier PIO that any online complaint was pending for action. However the Complainant had submitted the same RTI application with the same question on 01.05.2017 to the MHRD and the same was forwarded to the institute and was replied on time. The present one was the same application with changed date. It was further informed that the document sought related to a service matter filed by the Appellant before the Hon'ble High Court of CG at Bilaspur in WPS/ 435/2017 which had been disposed off by the Court. The application had been disposed off by the Court. The applicant had again filed the case with the Hon'ble High Court of CG in WPS/1496/2017 and the same was pending. Thus, the matter was sub-judice and supply of any document relating to the case could jeopardize the interest of their defense. Furthermore, the Complainant was asking for noting in the official files which cannot be used for any official purpose of the Applicant unless they culminate into orders or are notified. Besides, it was apprehended that the applicant may use official noting for harassing and victimizing the concerned employees who might have made certain honest remarks against the applicant or about his conduct and character and that they had to protect the interest of the organization/ employees from such victimization or harassment.
The Commission referred to the definition of information u/s Section 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 Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "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 Page 2 of 7 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."
In the context of providing the copy of the letters and note sheets, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Union of India vs. R.S. Khan WP (C) No. 9355 of 2009 and CM No. 7144 of 2009 dated 07.10.2010 wherein it was held as under:
"This Court concurs with the view expressed by the CIC that in the context of a government servant performing official functions and making notes on a file about the performance or conduct of another officer, such noting cannot be said to be given to the government pursuant to a 'fiduciary relationship' with the government within the meaning of Section 8(1)(e) of RTI Act. The Union of India cannot rely upon Section 8(1)(e) of RTI Act, to deny information to the Petitioner in the present case. This Court finds no merits in any of the apprehensions expressed by the CPIO in the order rejecting the Respondent's application with reference to either Section 8(1)(g) of RTI Act. The disclosure of information sought by the Petitioner can hardly endanger the life or Page 3 of 7 physical safety of any person. There must be some basis to invoke these provisions. It cannot be a mere apprehension. As regards Section 8(1)(j) of RTI Act, there is no question that nothings made in the files by government servants in discharge of their official functions is definitely a public activity and concerns the larger public interest. In the present case, Section 8(1)(j) of RTI Act was wrongly invoked by the CPIO and by the Appellate Authority to deny information to the Respondent."
Furthermore, in a recent decision the Hon'ble High Court of Delhi in its order dated 12.02.2018 in W.P.(C) 7845/2013 (Paras Nath Singh Vs. Union of India) had held as under:
10. The contention that notings made by a junior officer for use by his superiors is third party information, which requires compliance of Section 11 of the Act, is unmerited. Any noting made in the official records of the Government/Public Authority is information belonging to the concerned Government/Public Authority. The question whether the information relates to a third party is to be determined by the nature of the information and not its source. The Government is not a natural person and all information contained in the official records of the Government / public authority is generated by individuals (whether employed with the Government or not) or other entities. Thus, the reasoning, that the notings or information generated by an employee during the course of his employment is his information and thus has to be treated as relating to a third party, is flawed.
11. Section 8 of the Act provides for exemption from disclosure of certain information and none of the provisions of Section 8 provide for blanket exemption that entitles the respondent to withhold all notings on a file.
It was also observed that as per Section 10 of the RTI Act, 2005 all such information relating to the name and designation of officers in the note sheets/ correspondences could be severed to provide the remaining information. In this context, a reference was made to the decision of the Hon'ble High Court of Delhi in its decision dated 7/10/2013 [W.P. (C) 4079/2013 Union Public Service Commission vs. G S Sandhu] wherein while observing that denial of notings altogether was not justified directed to block the name, designation or any other indication which disclose or tend to disclose the identity of author, it was held as under:
"11. In my view, the apprehension of the petitioner that if the identity of the author of the file notings is revealed by his name, designation or in any other manner, there is a possibility of such an employee being targeted, harassed and even intimidated by the persons against whom an adverse noting is recorded by him on the file of UPSC, is fully justified. Though, ultimately it is for the members of the UPSC who are to accept or reject such notings, this can hardly be disputed that the notings do play a vital role in the advice which UPSC ultimately renders to the concerned department. Therefore, the person against whom an adverse advice is given may hold the employee of UPSC recording a note adverse to him on the file, responsible for an adverse advice given by UPSC against him and may, therefore, harass and sometime even harm such an employee/officer of UPSC, directly or indirectly. To this extent, the officers of UPSC need Page 4 of 7 to be protected. However, the purpose can be fully achieved by blocking the name, designation or any other indication which would disclose or tend to disclose the identity of the author of the noting. Denying the notings altogether would not be justified when the intended objective can be fully achieved by adopting such safeguards."
Furthermore, the Hon'ble High Court of Delhi in the decision of KVS v. CIC and Anr. W.P.(C) 6892/2009 dated 15.09.2009 while upholding the decision of the Commission had held as under:
"The only objection raised by the petitioner against the supply of statement of witnesses was under Section 8(1)(g) of the Right to Information Act, 2005. The said provision stipulates that information disclosure of which would endanger life and physical safety of any person or identity, the source of information or assistance given in confidence for law enforcement and security purposes need not be supplied. The Information Commissioner keeping in mind Section 8(1)(g) of the Right to Information Act, 2005 has directed that the name of the witnesses need not be disclosed to the respondent No.2.
In fact the order passed by the Information Commissioner seeks to rely upon section 10, which permits withholding of certain portions of information by applying severability principle. The order of the Information Commissioner takes care of the apprehension of the petitioner."
It was also observed that no specific exemption is codified which allows non-disclosure of information on the ground that the matter on which information is sought is sub-judice. In this context, the following extract of the decision of the High Court of Delhi in Municipal Corporation of Delhi v. R.K. Jain in W.P. (C) 14120/ 2009 dated 23.09.2010 can be cited:
"5...........The matter being sub judice before a court is not one of the categories of information which is exempt from disclosure under any of the clauses of Section 8(1) of the RTI Act."
The Commission also observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon'ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was held as under:
"14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as Page 5 of 7 well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy."
Furthermore, the Hon'ble Delhi High Court decision in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 it has held that:
"The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure."
A reference was drawn to the decision of the Hon'ble Delhi High Court in the case of J.P Agrawal v. Union of India-2013(287) ELT25(Del.) wherein it was held as under:
7."it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
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 Appellate Authority is not the custodian of the information or the document. It is only a statutory authority to take a decision on an appeal with regard the tenability or otherwise of the action of the CPIO and, therefore, there is a conscious omission in making the Appellate Authority liable for a penal action under Section 20 of the RTI Act and if that be the scheme of the Act and the legislative intention, we see no error in the order passed by the learned writ Court warranting reconsideration."
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, Page 6 of 7 would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. "
The Appellant was not present to contest the submissions of the Respondent or to substantiate his claims further.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent and in the light of the aforementioned provisions, the Commission directs the Respondent to provide the information sought by the Appellant within a period of 15 days from the date of receipt of this order in accordance with the provisions of the RTI Act, 2005.
The Appeal stands disposed accordingly.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 06.12.2018
Copy to:
1- The Secretary, D/o Higher Education, M/o HRD, 127-C, Shastri Bhawan, New Delhi - 110001 2- The Director, National Institute of Technology, Add: GE Road, Raipur-492010 Page 7 of 7