Central Information Commission
Mr.Pawan Kumar vs Mcd, Gnct Delhi on 29 November, 2010
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2010/002183/9684Penalty
Appeal No. CIC/SG/A/2010/002183
Relevant Facts emerging from the Appeal:
Appellant : Mr. Pawan Kumar
A-288 Weavers Colony
Ashok Vihar, Phase -IV
Delhi-110052
Respondent : Mr. V.P. Dahiya,
Deemed PIO & EE(M-IV),
Municipal Corporation of Delhi
Central Zone, Lajpat Nagar,
Delhi;
RTI application filed on : 22/03/2010
PIO replied : 15/04/2010
First appeal filed on : ----------------
First Appellate Authority order : 22/05/2010
Second Appeal received on : 28/07/2010
Information sought
Information was sought about an order of 15/12/2008 by no. 31/B/SEAL/CLZ/08 under Section 345A of DMC Act passed by Dy. Commissioner (CLZ) regarding H. NO. 247B, Village Rajpura, Delhi 110007:
1. Certified or authenticated Copy of document providing the information whether any complaint was made regarding house no. 247 B , Village Rajpura ,Delhi -110007, alleged illegal construction to any office of the MCD by any one.
2. Certified or authenticated copy of the document providing the information that any enquiry into the complaint was made by the MCD or only on the basis of the complaint the order to erase the construction was passed.
3. Certified copy of the order dated 15.12.2008.
Reply of the Public Information Officer
1. No such record is available
2. No such record is available
3. Reply enclosed.
Grounds for the First Appeal:
Unsatisfactory and incomplete information furnished by the public information officer.
Order of the First Appellate Authority (FAA):
"The appellant was not satisfied by the information furnished by the PlO. The Executive Engineer [Bldg.]/APIO appeared for PlO explained the case in detail. During the course of hearing the appellant requested to provide certified copies of the sealing file to him. EE (Bldg.)/APIO is directed to provide the same to the appellant through PIO/SE (C.L. Zone) with in two weeks."
Grounds for the Second Appeal:
Incomplete and misleading information provided by the PIO and non compliance of the orders passed by the FAA.Page 1 of 4
Relevant facts that emerged during the hearing on 07 October 2010:
The following were present Appellant: Mr. Pawan Kumar;
Respondent: Mr. R. Prasad, Public information officer & SE;
"The respondent admits that after the order of the FAA no information was provided to the appellant. The respondent claims that no sealing file available. The respondent should have informed the appellant accordingly in which case the second appeal would have been unnecessary. The FAA had given the order to Mr. V. P. Dahiya, EE(B) Civil Lines zone who was present and the order of the FAA also mentions that the information was to be provided by EE(B)."
Commission's Decision dated 07 October 2010:
The Appeal was allowed.
"The PIO is directed to provide the information to the appellant that there is no sealing file in existence before 20 October 2010.
The issue before the Commission is of not supplying the complete, required information by the deemed PIO Mr. V. P. Dahiya, EE(B) within 30 days as required by the law.
From the facts before the Commission it is apparent that the deemed PIO is guilty of not furnishing information within the time specified under sub-section (1) of Section 7 by not replying within 30 days, as per the requirement of the RTI Act. He has further refused to obey the orders of his superior officer, which raises a reasonable doubt that the denial of information may also be malafide. The First Appellate Authority has clearly ordered the information to be given.
It appears that the deemed PIO's actions attract the penal provisions of Section 20 (1). A showcause notice is being issued to him, and he is directed give his reasons to the Commission to show cause why penalty should not be levied on him.
Mr. V. P. Dahiya, EE(B) will present himself before the Commission at the above address on 29 November 2010 at 4.00pm alongwith his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20 (1). He will also bring the information sent to the appellant as per this decision and submit speed post receipt as proof of having sent the information to the appellant."
Relevant Facts emerging during showcause hearing on 29 November 2010: The following were present Appellant: Mr. Pawan Kumar;
Respondent: Mr. V.P. Dahiya, the then EE(B) Civil Lines Zone & Deemed PIO presently EE(M-IV), Central Zone, Lajpat Nagar, Delhi; Mr. A. K. Mittal, AE;
The Appellant had in his RTI application on 22/03/2010 sought information on 03 queries and the PIO had replied on 15/04/2010 that no such record is available with respect to query- 01 & 02 and had provided the information with respect to query-03. The FAA had in his order directed that the sealing file which would be related to query-01 & 02 should be provided to the Appellant within two weeks. It is significant that Mr. V. P. Dahiya, EE(B) was present during the hearing before the First Appellate Authority (FAA). The FAA's order was issued on 22/05/2010 and the information should have been provided to the Appellant before 07/06/2010. Instead Mr. V. P. Dahiya provided no information to the Appellant, infact he sent no communication whatsoever. When Mr. R. Prasad, PIO & SE appeared before the Commission he had admitted that no information had been provided to the Appellant inspite of the order of the FAA and claimed that no sealing file was available. If this was indeed true the Appellant could have been informed by Mr. Dahiya before 07/06/2010 that the sealing file was not available. Mr. V. P. Dahiya now claims that one paper of the sealing file suddenly became available which has been provided to the Appellant. However, the sealing file has still not being produced in totality and the Appellant claims that he is primarily interested in getting the copy of the complaint based on which the sealing was carried out. The single paper given to the Appellant mentions letter no. 4813/SHO/M.Town dated 13/12/2008 and direction of DC/CLZ. Prima-facie it appears to Page 2 of 4 the Commission that Mr. V. P. Dahiya is not being truthful in explaining why he did not even inform the Appellant that the sealing file was not available. It is also significant that suddenly one paper of the sealing file is claimed to have surfaced which claimed to show that on a letter received from SHO(Model Town) dated 13/12/2008 the JE, EE, SE & DC all approved action under Section 345A on the same day i.e. 15/12/2008.
Mr. R. Prasad PIO& SE who appeared before the Commission on 07/10/2010 claimed that no sealing file was available. Hence the Commission gave an order on 07/10/2010 to inform the Appellant before 20/10/2010 that the sealing file was not available. Interestingly this order was also not implemented and on 23/11/2010 a letter was sent to the Appellant by Mr. J. S. Yadav present EE(B) in which it is stated that the record/file has been traced in the office and the one page record referred to above was sent to the Appellant. It appears that Mr. Dahiya is not telling the truth.
Section 20 (1) of the RTI Act states, "Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty five thousand rupees; Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be."
A plain reading of Section 20 reveals that there are three circumstances where the Commission must impose penalty:
1) Refusal to receive an application for information. 2) Not furnishing information within the time specified under sub-section (1) of section 7 - 30 days. 3) Malafidely denying the request for information or knowingly giving incorrect, incomplete or
misleading information or destroying information which was the subject of the request
4) Obstructing in any manner in furnishing the information.
All the above are prefaced by the infraction, ' without reasonable cause'.
Section 19 (5) of the RTI Act has also stated that "In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request."
Thus if without reasonable cause, information is not furnished within the time specified under sub-section (1) of section 7, the Commission is dutybound to levy a penalty at the rate of rupees two hundred and fifty each day till the information is furnished. Once the Commission decides that there was no reasonable cause for delay, it has to impose the penalty at the rate specified in Section 20 (1) of the RTI Act and the law gives no discretion in the matter. The burden of proving that denial of information by the PIO was justified and reasonable is clearly on the PIO as per Section 19(5) of the RTI Act.
The FAA had ordered on 22/05/2010 to provide the information within two weeks i.e. before 07/06/2010. This order was not complied with. Based on the statement by the PIO before the Commission on 07/10/2010 the Commission ordered that information be provided to the Appellant that the sealing file was not in existence before 20/10/2010. This was also not complied with. On 23/11/2010 it has been claimed that only one paper is available from the file. Deemed PIO Mr. V. P. Dahiya has made statements before the Commission claiming Page 3 of 4 that there is no file as well as claiming that the file exists with just one paper. The Commission sees this as a fit case for levy of penalty under Section 20(1) of the RTI ACT on Mr. V. P. Dahiya, EE(B) & Deemed PIO. Varying statements have been made and Mr. Dahiya has been persistently denying the information inspite of the order of the FAA and the Commission. Even now he is giving various contradictory statements. Since the delay in providing the information has been far over 100 days the Commission sees this as a fit case for levying the maximum penalty of `25000/- under Section 20(1) of the RTI Act.
Since Mr. V. P. Dahiya deemed PIO has persistently refused to provide the information without any reasonable cause and appears to be giving untruthful statements the Commission under its power under Section 20(2) of the RTI Act recommends to the Municipal Commissioner of Delhi to take disciplinary action against him Decision:
As per the provisions of Section 20 (1) of the RTI Act 2005, the Commission finds this a fit case for levying penalty on Mr. V. P. Dahiya, EE(B) & Deemed PIO. Since the delay in providing the information has been over 100 days, the Commission is passing an order penalizing Mr. V. P. Dahiya `25000/ which is the maximum penalty under the Act.
The Commissioner, Municipal Corporation of Delhi is directed to recover the amount of `25000/- from the salary of Mr. V. P. Dahiya and remit the same by a demand draft or a Banker's Cheque in the name of the Pay & Accounts Officer, CAT, payable at New Delhi and send the same to Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary of the Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi - 110066. The amount may be deducted at the rate of `5000/ per month every month from the salary of Mr. V. P. Dahiya and remitted by the 10th of every month starting from January 2011. The total amount of `25000 /- will be remitted by 10th of May, 2011.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 29 November 2010 (For any further correspondence on this matter, please mention the file number quoted above.) (VK) CC:
To, 1- Commissioner Municipal Corporation of Delhi Town Hall, Delhi- 110006
2. Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi - 110066 Page 4 of 4