Central Information Commission
Neeraj Sharma vs Election Commission Of India on 4 March, 2021
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi-110067
ि तीय अपील सं या / Second Appeal Nos.: CIC/ECOMM/A/2019/649121
िशकायत सं या / Complaint Nos. CIC/ECOMM/A/2019/649130
CIC/ECOMM/A/2019/653788
CIC/ECOMM/C/2019/659837
CIC/ECOMM/A/2019/660360
CIC/ECOMM/C/2020/685299
CIC/ECOMM/C/2020/685315
Shri Neeraj Sharma ... अपीलकता/Appellant
Through: Sh. Pulkit Verma- Advocate ....िशकायतकता /Complainant
VERSUS/बनाम
PIO, Election Commission of India,
Nirvachan Sadan, Ashok Road,
New Delhi-110001
Through: Sh. P K Sharma; Sh. Pawan Diwan;
Sh. S K Dubey-US; Sh. Dilip Kumar Mahto- US;
Sh. Sidhant Kumar - Advocate ... ितवादीगण /Respondent
Date of Hearing : 01.03.2021
Date of Decision : 04.03.2021
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
Since both the parties are same, the above mentioned cases are clubbed
together for hearing and disposal.
Case RTI Filed CPIO reply First FAO 2nd
No. on appeal Appeal/Com
plaint
received on
649121 23.05.2019 21.06.2019 08.07.2019 22.07.2019 26.08.2019
649130 22.06.2019 03.07.2019 07.07.2019 25.07.2019 26.08.2019
653788 22.06.2019 25.07.2019 11.08.2019 - 15.10.2019
659837 01.11.2019 - - - 14.12.2019
Page 1 of 12
660360 22.06.2019 17.09.2019 01.11.2019 - 15.12.2019
685299 01.08.2020 - - - 11.09.2020
685315 07.08.2020 10.09.2020 - - 11.09.2020
(1) CIC/ECOMM/A/2019/649121
The Appellant filed an RTI application dated 23.05.2019 seeking information on
the following 11 points:
1. Please provide the name, designation, Official address of admin or
operator of Official twitter & facebook account of Election Commission
of India.
2. Please provide the remuneration /salary and all perks details given to
admin/operator of Official twitter & Facebook account of Election
commission of India.
3. Provide selection process followed to select admin or operator of Official
twitter & Facebook account of Election Commission of India with all
document related to selection process, job advertisement, candidate
applied list, written test conducted result, interview shortlisted result
etc.
4. Please provide all certified documents related to their selection like
Resume of candidate, Certificates, application form, documents
attached with application. Appointment letter etc.
5. Please let us know is this post temporary or permanent.
6. Please provide the amount spent till date on setup/running of this
official twitter account including the staff and computer, internet,
official space etc.
7. If this Official twitter & Facebook account of Election Commission of
India manage by the existing staff of Election commission of India.
Please provide the name of the officers, rank and official address.
8. Please provide the copy of all records including, approval, email , latter
or any other communication or instruction given to operator/admin or
officer to post the opindia.com article on Official twitter & Facebook
account of Election Commission of India dated 22/05/2019 on
regarding #EVMs are fool Proof. Screen shot attached for your
reference.
9. Please provide the copy of all records including, approval, email, latter
or any other communication or instruction given to operator/admin or
officer to remove the previous post of the opindia.com article on Official
twitter & Facebook account of Election Commission of India dated
22/05/2019 on regarding #EVMs are fool Proof. Screen shot attached
for your reference.
10. Please share the Officers name, designation and official address who
instructed to post of the opindia.com article on Official twitter &
Facebook account of Election commission of India dated 22/05/2019
on regarding #EVMs are fool proof. Screen shot attached for your
reference.
Page 2 of 12
11. Please share the Officers name, designation and official address who
instructed to remove the same post of the opindia.com article on Official
twitter & Facebook account of Election Commission of India dated
22/05/2019 on regarding #EVMs are foolproof. Screen shot attached
for your reference.
The CPIO, Election Commission of India, Delhi furnished a point wise reply to
the Appellant vide letter dated 21.06.2019 while stating that no information
was available against queries number 4 and 5 only.
Dissatisfied with the reply received from the PIO, the Appellant filed a First
Appeal dated 08.07.2019 and also requested for inspection of files and
documents. The FAA vide order dated 22.07.2019 observed that information
has been furnished and if the applicant is not satisfied with the order, he may
meet the respondent on any working day with prior appointment.
Aggrieved with the response, the Appellant approached the Commission with
the instant Second Appeal.
Facts emerging in Course of Hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19 hearings through video conference were scheduled after giving prior notice to both the parties. Both parties are heard through video conference and Appellant claims that he is not satisfied with the replies provided by the Respondent against queries number 1,7,8,9,10 and 11. It is his contention that though a reply has been provided exact information about the names/designations and official addresses of the concerned officials handling and operating the twitter and facebook account of ECI have not been specifically provided. Respondent explains that communication on behalf of the Respondent is handled by a specific team, which consists of staff and officials who are not permanently posted as such, hence information about each specific post is not available.
Decision:
Upon hearing the contentions of both parties and perusal of records of the case, it appears that response furnished by the Respondent should have been less generic and more specific and accurate indicating the name of the team, name of the official leading the team at the relevant point of time, names of members of the team etc. Accordingly, the Respondent is hereby directed to provide a revised reply furnishing the name of the team which handles such social media communications, the name of the official who heads the communication team and the names of officials in the said team. The Appellant has sought the source of information in respect of queries 8 to 10. Respondent shall provide a suitable revised reply with respect to the said queries furnishing information, Page 3 of 12 from available records, as permissible under law. The revised reply shall be sent to the Appellant within four weeks of receipt of this order, and compliance report in this regard should be submitted before the Commission by 31.03.2021, failing which appropriate action shall be initiated as per law.
(2) CIC/ECOMM/A/2019/649130 The Appellant filed an RTI application dated 22.06.2019 seeking information on following paragraph:
"As per RTI act section 4, which mandates government departments/public authorities to proactively, disclose the public information. To the compliance of RTI section 4, Please upload the Form 20 & Form 17C for general election of 17th Lok Sabha 2019. Still after 1 month, Form 20 & Form 17C is not uploaded on ECI website."
The CPIO, Election Commission of India, Delhi furnished a reply to the Appellant vide letter dated 03.07.2019 stating as under:
"The information sought is not available in this stage. The information may be available with CEOs of all states/UTs. You may obtain information from the office of CEO of the states/UTS by submitting application under RTI Act, 2005 separately. Your application can not be transferred to them as more than one PIOs are involved u/s 6(3) of RTI Act, 2005."
Dissatisfied with the reply received from the PIO, the Appellant filed a First Appeal dated 07.07.2019. The FAA vide order dated 25.07.2019 informed to the Appellant that information sought is in nature of request does not come under "information" as specified in under section 2(f) of RTI Act, 2005. The FAA further held that as directed by ECI, forms under appeal are to be uploaded on CEO Websites which will have link established from ECI website. Preparation of these forms is ongoing.
Aggrieved with the response, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties. Both parties are heard through video conference and the Appellant points out that the PIO's reply is flawed because instead of transferring the RTI application to the respective custodians of information under Section 6(3) of the RTI Act, 2005, the Respondent has simply declined the application.
Respondent replied that the PIO has specified in the reply that the RTI application could not be transferred as more than one PIO holds the relevant information and the guidelines specified in the DoPT circular no. NO.10/2/2008-IR dated 12.06.2008 clarifies this issue, debarring transfer of a Page 4 of 12 single application to multiple public authorities. The Respondent further averred that the Form 20 sought by the Appellant is now available. He explained that Form 17C is the account of votes recorded as per the Rule 49S of the Conduct of Election Rules, 1961 (Statutory Rules and Order), but could not ascertain whether the FAA order applies to the Form 20 or Form 17C. At this point, the Appellant pointed out that if the forms are uploaded on the website in a timely manner, such RTI queries can be avoided.
Decision After careful consideration of the facts of the case, it is noted that the implication of the FAA's order is not clear, and the PIO expressed doubt as to whether the direction for uploading as specified in the FAA's order dated 25.07.2019 was meant for the Form 17C or Form 20 or both.
In view of the anomaly noticed in the FAA's order, the Commission deems it appropriate that the matter be remanded to the current FAA/Senior Principal Secy to ECI - Sh. K N Bhar to address this issue and decide the matter, with a reasoned speaking order, after granting a fair hearing to both parties. A copy of the FAA's order, as specified above shall be submitted by the Respondent before the Commission by 31.03.2021.
(3) CIC/ECOMM/A/2019/653788 The Appellant filed an RTI application dated 22.06.2019 seeking information on following para:
1. As per RTI act section 2(j) (i) Please allow inspection of all Files & documents/records related to complaints of Model Code of Conduct violations when Modi and Bharatiya Janata Party President Amit Shah were cleared.
2. Please provide copies of dissent notes submitted by Election Commissioner Ashok Lavasa when Modi and Bharatiya Janata Party President Amit Shah were cleared of Model Code of Conduct violations.
The CPIO, Election Commission of India, Delhi furnished reply to the Appellant vide letter dated 25.07.2019 stating as under:
"The information sought by you cannot be disclosed under the rule 8(1)
(g) of the RTI Act, 2005, the disclosure which will endanger the life or physical safety of any reason or identify. The source of information or support given in confidence for law enforcement or security purposes."
Dissatisfied with the reply received from the PIO, the Appellant filed a First Appeal dated 11.08.2019 which was also not adjudicated by the First Appellate Authority.
Page 5 of 12Dissatisfied with the response, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties. Both parties are heard through video conference. Appellant's counsel emphasises that a reasoned order should have been passed by the respondent specifying reasons for denial and merely citing provision of law is not sufficient, as has been held in numerous decisions of this Commission as well as the Courts of law.
The Respondent has placed reliance on three decisions out of which two decisions in the cases of i) Dr. Jasdeepak Singh vs. CPIO, ECI (CIC/ECOMM/A/2019/150996-BJ dated 10.04.2020) and ii) Mr. Girish Mittal vs. CPIO, ECI(CIC/ECOMM/A/2019/648093-BJ dated 27.02.2020) dealt with the same subject matter. Respondent has cited another decision in the case of Sh. B S Malik vs ECI (CIC/WB/A/2009/000212 dated 26.02.2009) wherein the PIO's denial of final report of the Observer(General) appointed by the ECI invoking Section 8(1)(g) of the RTI Act, had been upheld by the Commission. The Respondent has also submitted a copy of the FAA's order dated 11.10.2019 though Appellant denies having received the same.
Appellant on the other hand contended that denial of access to information by merely citing provision of law is not sufficient, unless duly substantiated by reason and has submitted some decisions in support of the contentions, viz. i) Sh. Mukul Mittal vs. IRCON International Ltd. (CIC/OK/A/2006/00136 dated 27.09.2006); ii) Sh. Pareshbhai Arunbhai Kothari vs. Western Railway(CIC/OK/A/2006/00045 dated 08.09.2006) and UPSC vs. GS Sandhu [WP(C)4079/2013 dated 10.10.2013]. The Appellant has further contended that PIO's reply was not reasoned and therefore suffered infirmity in the eyes of law;
and such infirmity cannot be remedied by a subsequent detailed and reasoned order by the FAA.
Decision The averments of both parties are heard at great length and their respective contentions and citations have been duly examined. The contention of the Appellant is that every order passed by the PIO should be well reasoned and self explanatory, particularly when provisions of the Act are invoked to deny information. Having said that, the Commission cannot lose sight of the fact that the queries dealt with in this case have already been dealt with in another case, by a predecessor Bench of this Commission, in the case of Dr. Jasdeepak Singh vs. CPIO, ECI (CIC/ECOMM/A/2019/150996-BJ dated 10.04.2020). This Commission wishes to place reliance on the decision of the Delhi High Court passed in the matter of Registrar of Companies Ors. vs. Dharmendra Kumar Garg & Anr. (WP No. 11271/2009 dated 01.06.2012) , wherein it was held by J. Vipin Sanghi that:
Page 6 of 12"...54. It is a well-settled canon of judicial discipline that a bench dealing with a matter respects an earlier decision rendered by a coordinate bench (i.e., a bench of same strength), and is bound by the decision of a larger bench. If this discipline is breached, the same would lead to complete chaos and confusion in the minds of the litigating public, as well as in the minds of others such as lawyers, other members/judges of quasi-judicial/judicial bodies, and the like. Breach of such discipline would result in discrimination and would shake the confidence of the consumers of justice. There can be no greater source of discomfiture to a litigant and his counsel, than to have to deal with diametrically opposite views of coordinate benches of the same judicial/quasi-judicial body. If the emergence of contradictory views is innocent i.e. due to ignorance of an earlier view, it is pardonable, but when such a situation is created consciously, with open eyes, and after having been put to notice, the judge/authority responsible for the later view should take the blame for creating confusion and for breaching judicial discipline."
In the light of the above decision, this Commission is in agreement with the earlier detailed decision of the predecessor Bench of this Commission, on the same subject matter in the case of Dr. Jasdeepak, as discussed above.
(4)CIC/ECOMM/C/2019/659837 The Complainant filed an RTI application dated 01.11.2019 seeking information on following point:
1. Please provide copies of videography of the EVM hackathon conducted by ECI on 3rd to 8th August 2009.
Having not received any response from the PIO, Complainant approached the Commission with the instant Complaint.
Facts emerging in Course of Hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties. Both parties are heard through video conference and Complainant states that a reply had been received on 17.01.2020 denying information. Respondent explains that since there are no copies of videography, the Complainant had been informed accordingly.
Decision Upon perusal of the facts of the case, the Commission finds that the PIO's reply had been sent beyond the timeline stipulated under the RTI Act. Thus there has been a breach of the provision of law. Hence, the Respondent is hereby directed to furnish an explanation as to why no action should be initiated against him for delay in furnishing of information thereby violating the Page 7 of 12 provision of the RTI Act, 2005. The explanation from the Respondent must reach the Commission by 31.03.2021, failing which appropriate action shall be initiated as per law, on the basis of records available.
(5) CIC/ECOMM/A/2019/660360 The Appellant filed an RTI application dated 11.08.2019, [though RTI application bears the date of 22.06.2019]seeking information on following 6 points:
1. Please provide the name of the person whose life is endanger due to supply of information requested in RTI number 9550.
2. Please provide the suspects name from whom the life is in endanger due to supply of information requested in RTI number 9550.
3. Please provide the list of action taken by ECI to save the life in endanger people as ECI mentioned life in endanger issues in RTI reply 9550.
4. Please provide the certified copy of complaint copy/FIR registered against the suspects from whom the people life endanger as mentioned by ECI in RTI reply in 9550.
5. Please provide the certified copy of note sheet indicating noting is by various officials and decision of competent authority on people life endanger as suspected by ECI.
6. Please provide certified copy of investigation report or feedback obtained from competent authority with respect to complaint related to life endanger.
The CPIO, Election Commission of India, Delhi furnished reply to the Appellant vide letter dated 17.09.2019 stating as under:
"The information sought by you is not available with the Commission. The applicant is also informed the information sought is in the nature of seeking explanation/clarification of CPIOs reply letter dated 25.07.2019 which is beyond the scope of RTI Act, 2005."
Dissatisfied with the reply received from the PIO, the Appellant filed a First Appeal dated 01.11.2019 which was also not adjudicated by the First Appellate Authority.
Aggrieved with the response, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties. Both parties are heard through video conference and the Respondent states that the First Appeal was never received till it was sent with the hearing notice from the Commission. Respondent's counsel argued that the queries raised in this case seek explanation/clarification of CPIOs earlier reply letter dated 25.07.2019, disclosure of such information would Page 8 of 12 defeat the very purpose of the exemption sought vide reply dated 25.07.2019. He elucidated that vide the reply dated 25.07.2019, PIO had denied disclosure of information under Section 8(1)(g) of the RTI Act and furnishing any further information in this regard would lead to divulging of the information which was sought to be guarded vide the letter dated 25.07.2019.
Decision Upon hearing the averments of the case and perusal of records, it is noted that the First Appeal had not been received by the Respondent on time and hence had not been adjudicated.
In view of the averments of both parties in this case, it is deemed essential that the First Appellate Authority should adjudicate the First Appeal at his stage, without which adjudication of the Second Appeal is premature. Hence, the Commission deems it appropriate that the matter be remanded to the current FAA/Senior Principal Secy. to ECI - Sh. K N Bhar to address this issue and decide the matter, with a reasoned speaking order, after granting a fair hearing to both parties. A copy of the FAA's order, as specified above shall be submitted by the Respondent before the Commission by 31.03.2021.
(6) CIC/ECOMM/C/2020/685299 The Complainant filed an RTI application dated 01.08.2020 seeking information on following points:
1. Please provide certified copy of the agreement between the ADG Online Solution Pvt. Ltd and Election Commission of India to manage the Official social media account of Election Commission of India.
2. Please provide certified copy of the agreement between the TSD Corporation Ltd and Election Commission of India to manage the Official social media account of Election Commission of India.
3. Please provide the criteria of Election Commission of India to select the Social Media Agency ADG Online Solution Pvt. Ltd & TSD Corporation Ltd to manage the Official social media account of Election Commission of India.
4. Please provide the name of the staffs from the ADG Online Solution Pvt.
Ltd, which have access to Election Commission of India office during their work to manage the Official social media account of Election Commission of India.
5. Please provide the name of the staffs from the TSD Corporation Ltd, which have access to Election Commission of India office during their work to manage the Official social media account of Election Commission of India.
6. Please provide approval copy including note sheet to grant access to social media agency staff to work from Election Commission office to manage the Official social media account of Election Commission of India.
Page 9 of 12Having not received any response from the PIO, Complainant approached the Commission with the instant Complaint.
Facts emerging in Course of Hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties. Both parties are heard through video conference and Respondent states that vide interim reply dated 02.09.2020 Applicant had been assured that information sought by him is being compiled and a final reply would be sent soon. Subsequently a final reply was prepared and sent on 17.09.2020. Meanwhile, a First Appeal had been filed on 08.09.2020.
Complainant claims that the PIO's reply dated 17.09.2020 was received by him only on 09.11.2020. The First Appeal dated 08.09.2020 was duly adjudicated by the FAA vide a detailed, reasoned speaking order dated 21.10.2020. It is noted that during the course of adjudication of the First Appeal, the FAA had also directed that another copy of the PIO's reply dated 17.09.2020 may be provided to the Complainant.
Decision Upon perusal of the PIO's reply and in the light of the FAA's detailed order, the Commission finds no infirmity with the responses sent by the Respondent. Hence no further adjudication is deemed necessary in this case.
(7) CIC/ECOMM/C/2020/685315 The Complainant filed an RTI application dated 07.08.2020 seeking information regardingcommunication received by Election Commission of India from Hon'ble Members of Parliament Shri Rahul Gandhi, Shri Sharad Pawar, Shri N. Chandrababu Naidu & Shri Derek O'Brien with joint letter regarding EVM Dated 01.02.2019 on following 8 points:
1. Certified copy of note sheet indicating notings by various officials and decision of competent authority with respect to communication referred to above.
2. Certified copy of investigation report or feedback obtained with respect to the issues raised in the memorandum received by your office along with communication/representation referred to above.
3. Certified copy of letter, directions and/or instructions issued to concerned authority/subordinate office as a follow up action based on communication referred to above.
4. In case no action is taken on the communication above please inform me the name of officer(s) and staff responsible, but failed to take action with respect to communication referred to above.
5. Certified copy of the reply communication sent by your Public Authority to the Hon'ble Members of parliament with respect to the issues raised in the letter received by your office communication/representation referred to above.Page 10 of 12
6. Please let us know details of committee if setup regarding above refer complaint.
7. Please let us know MOM of this committee if setup.
8. Please provide the Diary Number & date when above refer communication received by your Public Authority.
The CPIO, Election Commission of India, Delhi furnished reply to the Complainant vide letter dated 10.09.2020 stating that the Applicant may refer to Commission's "Presentation on EVM/VVPAT" available at http://eci.gov.in/files/file/9228-evm-credibility-technological-and- administrative-safeguards which comprehensively addresses and clears all doubts and queries regarding credibility of EVMs used by Election Commission of India.
Aggrieved with the response, the Complainant approached the Commission with the instant complaint.
Facts emerging in Course of Hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties. Both parties are present for the virtual hearing and reiterate their respective contentions.
Decision:
Upon hearing the averments of the parties and perusal of records of the case, the Commission observed that there appears no malafide on the part of the Respondent to obstruct free flow of information. The Commission places reliance on the decision of the Hon'ble Supreme Court of India in CBSE & Anr. Vs. Aditya Bandopadhyay & Ors., SLP(C) NO. 7526/2009 wherein it was held as under:
".....The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritizing information furnishing, at the cost of their normal and regular duties."
In another decision of the High Court of Delhi, in the case of Col. Rajendra Singh v. Central Information Commission and Anr. [WP (C) 5469 of 2008 dated 20.03.2009], it was 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."Page 11 of 12
The Delhi High Court's decision in the case of Registrar of Companies & Ors. vs. Dharmendra Kumar Garg & Anr. W.P.(C.) No. 11271/2009 dated 01.06.2012 deals with this issue in the following words:
"...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 fulfill 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..".
In the light of the above well settled legal position, the Commission is of the considered opinion that no intervention is deemed necessary in this case, considering the absence of any malafide in the conduct of the Respondent.
The above cases are disposed off accordingly.
Y. K. Sinha(वाई. के .िस हा) Chief Information Commissioner(मु य सूचना आयु ) Authenticated true copy (अिभ मािणतस ािपत ित) S. K. Chitkara (एस. के . िचटकारा) Dy. Registrar (उप-पंजीयक) 011-26180514 Page 12 of 12