Central Information Commission
K K Garg vs Chief Commissioner Of Income Tax (Cca) , ... on 13 January, 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.:- CIC/CCITL/C/2018/169256-BJ
Mr. K. K. Garg
.... िशकायतकता /Complainant
VERSUS
बनाम
CPIO
ITO (HQ), O/o the Pr. Commissioner of Income Tax - 2
Aayakar Bhawan, Sanjay Place, M. G. Road
Room No. 117, Agra - 282002
... ितवादीगण /Respondent
Date of Hearing : 30.12.2019
Date of Decision : 13.01.2020
Date of filing of RTI application 23.06.2018
CPIO's response 27.07.2018 /
23.10.2018
Date of filing the First appeal 04.08.2018
First Appellate Authority's response 14.09.2018
Date of diarised receipt of Complaint by the Commission 27.11.2018
ORDER
FACTS:
The Complainant vide his RTI application sought information on 11 points regarding the name & residential address with date of joining of Pr. CIT,II Agra on transfer at Agra; make of assigned staff car & Registration number; the certified copy of agreement between the "department" and the "transport operator" in respect of assigned staff car; whether such assigned staff car was being used for the purpose of commuting from residence to office and vice versa and other issues related thereto.
The CPIO, O/o Pr. Commissioner of Income-Tax-2, Agra, vide its letter dated 27.07.2018 denied disclosure of information u/s 8(1) (j) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Complainant approached the FAA. The FAA, vide its order dated 14.09.2018 directed the CPIO to pass a speaking order giving point wise reply to the Complainant on the basis of available records and in accordance with the provisions of the RTI Act, 2005. In case, information on any one or more points was being denied, specific reasons for rejection as well as relevant section of the RTI Act, 2005, should be mentioned. Subsequently, the CPIO, vide its letter dated 23.10.2018, in compliance with the direction given by the FAA, provided a point Page 1 of 12 wise response to the Complainant. The Complainant also requested for suitable compensation and damage under Section 19 (8) (b) of the RTI Act, 2005 causing mental agony and harassment in the process.
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Mr. K. K. Garg through VC;
Respondent: Ms. Ashima Mahajan, ACIT, Agra and Mr. Tarun Singh Saini, ITO (Hqrs.), Agra through VC;
The Complainant reiterated the contents of the RTI application and stated that the information on points 02, 03, 09, 10 and 11 was not provided to him by the Respondent. He referred to point No. 02 wherein he had requested for the make of the assigned staff car and its registration number in respect of the Pr. CIT II Agra in response to which only the name of the car was provided without the registration number. With regard to point No. 03, he submitted that Section 8 (1) was not applicable to the queries and that he was seeking the certified copy of the agreement between the Department and the Transport Operator regarding staff car which should have been disclosed since it was an agreement entered into by the Public Authority and the Citizens had the right to know about the utilization of money spent through the Government exchequer. The Complainant also referred to point No. 09, regarding recording of journeys in the logbook in accordance with the staff car rules and point No. 10 regarding certified copy of the logbook which were also not responded to his satisfaction. Furthermore, the Complainant submitted that the name, address and mobile number of the driver was information kept in the record of the public authority which should have been disclosed as per Section 4 (1) (b) (ix) of the RTI Act, 2005. In its reply, the Respondent stated that with regard to point No. 02 no specific registration number of the vehicle was recorded in the terms and conditions of the contract entered into with the vendor hence the information could not be supplied. Regarding point No. 03, the Respondent while referring to the decision of the Commission in R. K. Jain vs. CPIO HUDCO Ltd. dated 01.09.2016 stated that the agreement was denied under Section 8 (1) since it contained information which could adversely affect their trade secrets / intellectual property rights etc. Regarding point No. 09, it was stated that the information held and available with them was disclosed to the Complainant. As regards points No. 10 and 11 it was stated that the logbook sought by the Appellant was exempted under Section 8 (1) (d) of the RTI Act, 2005 and the name, address and mobile number of the driver was his personal information exempted under Section 8 (1) (j) of the RTI Act, 2005. On being queried by the Commission regarding the reasons why the information regarding the contract / agreement entered into by the Public Authority with a private operator could not be disclosed after the finalization of the same, no satisfactory response was offered by the Respondent. The Complainant consistently sought compensation / damage under section 19 (8) (b) of the RTI Act, 2005, for the alleged harassment and suffering caused to him.
The Commission was in receipt of a written submission from the Appellant dated 17.12.2019 where he submitted that the CPIO had deliberately failed to comply with the Commission's order dated 14.09.2018 in furnishing information within reasonable time as the information on points no. 2, 3, 9, 10, &11 was not supplied and only part information was supplied on 29.10.2018. In support of his contention, the Appellant referred to the decisions of the Apex Court and various High Courts in Jamia Milia Islamia v. Sh. IkramuddinW P(C) No. 5677/2011, in the decision of Page 2 of 12 Kashinath J ShetyeW.P. No. 1 of 2009, CBSE & Anr. v. Aditya Bandopadhyay & Ors. 2011 (8) SCC 497, and State of UP v. Raj Narain 1975 AIR 865. The Appellant thus prayed to initiate an inquiry in respect of his complaint u/s 18(3) and 18(4) of the Act, order the furnishing of the correct information sought on points No. 2, 3, 9, 10 &11 within a fixed time limit, imposition of penalty u/s 20(1), initiation of disciplinary action against the concerned delinquent CPIO under CCS(Conduct) Rules read with Section20(2), and award appropriate compensation to him u/s 19(8)(b) of the RTI Act.
The Commission is also in receipt of a written submission on behalf of the Respondent dated Nil wherein while providing point-by-point rebuttal to the contentions of the Appellant it was prayed to dismiss the Complaint.
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 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 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."Page 3 of 12
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 also observed that the information relating to the agreement entered into by the Public Authority with a private operator regarding services of staff car should be suo motu disclosed on the website of the Public Authority for the ease and convenience of the public at large. In this context, the Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo-motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act. The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions Page 4 of 12 of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
Moreover, in a series of judgements several high courts have allowed disclosure of contract related information wherein the Government/ Public Authority is also one of the participant. The relevant extracts of the decisions are mentioned as under:
The Hon'ble High Court of Madras in V.V. Mineral v. Director of Geology and Mining, Writ Petition (MD) No.5427/2007 dated 25/06/2007 held as under:
"11.Therefore, the principal contention that a right accrues to the petitioner to object may be correct in the context if a document is exclusively submitted by any person to the Government authorities such as property statements, income tax returns etc., but in a case of lease deeds and transport permits which emanate from the statutory authorities and where the petitioner cannot be said to be in exclusive possession, he cannot have a right to object to its being divulged as a third party. The lease deeds pertaining to minerals as well as transport permits are not documents prepared or to be kept by a prospecting mine operator but prospecting a mine or mineral is a privilege conferred by the State to the individuals, who accepts the norms prescribed under Mines and Minerals Act 1957 and the rules framed thereunder.Page 5 of 12
12. In the present case, when the third respondent as an Information Officer, ordering notice to the petitioner and taking their objection and refusing to furnish the documents sought for by a citizen is clearly beyond the scope of the RTI Act. If the information is available with the State and such information is in exclusive custody of the State, the question of seeking any opinion from the third party on such issues may not arise especially, when they are public documents. By disclosure of such information, no privilege or business interests of the petitioner are affected. On the other hand, such a disclosure may help any party to act upon those documents and take appropriate steps."
The aforesaid observation of the Hon'ble High Court of Madras was upheld in the decision of the Hon'ble High Court of Nagpur in Sunflag Iron & Steel Company Ltd. V. State Information Commission Writ Petition No. 863/ 2012 dated 14.11.2014 wherein, the following was held:
"10. After hearing the learned advocates for the respective parties and considering the judgments referred above, in my view, it cannot be said that in each and every case the notice under Section 19(4) of the Act of 2005 is required to be issued to third party and hearing is to be afforded to the third party before any directions for supplying the information are given. The Division Bench of Delhi High Court has considered the scope of Section 11(1) of the Act of 2005 and has laid down that the notice is required to be given to third party in case information prima facie is considered as confidential and if it affects the rights of privacy of the third party.
12. If the impugned order is examined in the light of the above referred judgments, it has to be held that the directions given by the Commission to provide the information as sought vide Item no.5 of the application given by the respondent no.1 cannot be said to be an information which can be considered as confidential and in the exclusive possession of the petitioner, it being a Memorandum of Understanding to which the Government of Maharashtra is a party. However, the information sought by the respondent no.4 vide Item No.4 of his application, cannot be provided to the respondent no.4 without hearing the petitioner and considering its objections. The information sought by the respondent no.4 vide Item no.4 of his application, does not specify the documents in respect of which the information is sought and the directions to provide the information on such vague request may prejudice the petitioner.
13. The reliance placed on behalf of the petitioner on the judgment given in the case of R.K. Jain V/s. Union of India & Anr. (cited supra) is misdirected inasmuch as in this case, the information sought related to the annual confidential reports of the third party which objected to the providing of the information. In the judgment given in the case of Surupsingh Hrya Naik V/s. State of Maharashtra & Ors. (cited supra) again the issue was about giving of information relating to the hospital records. In the judgment given in the case of SKIL Infrastructure Private Limited & Anr. V/s. State Information Commissioner & Ors. (cited supra) the issue about supplying the information which was not exclusively in the custody of the third party and which related to the transactions of the State Government, did not fall for consideration.
The judgments relied on behalf of the petitioner do not assist the petitioner. As far as the facts of the present case are concerned, information sought by the respondent no.4 Page 6 of 12 vide item no.5 of his application is concerning the Memorandum of Understanding to which the Government of Maharashtra is party and it cannot be said that the information is exclusively related to the petitioner. The directions issued by the Commission to provide the information to the respondent no.4 sought vide Item no.5 of his application cannot be faulted with."
The Commission finds that the decision of the Hon'ble High Court of Delhi in Jamia Millia Islamia v. Ikramuddin WP (C) No. 5677/2011 dated 22.11.2011, quoted by the appellant, is also pertinent to this matter wherein it was observed that:
"The act of entering into an agreement with any other person/entity by a public authority would be a public activity, and as it would involve giving or taking of consideration, which would entail involvement of public funds, the agreement would also involve public interest. Every citizen is entitled to know on what terms the Agreement/settlement has been reached by the petitioner public authority with any other entity or individual."
The Commission also draws reference to the judgment of the Division bench of Jharkhand High Court, in State of Jharkhand v. Navin Kumar Sinhga and Anr., AIR 2008 Jharkhand 19 dated 08/08/2007, held as under:
"26........The question therefore that falls for consideration is as to whether disclosure of various documents submitted by the bidders is a trade secret or commercial confidence or intellectual property. Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tenderor or a bidder is decided, then those tender documents cannot be secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of the Government.
27. ......... Since the tender process is completed and contract has been awarded, it will not influence the contract. Besides the above, a citizen has a right to know the genuineness of a document submitted by the tenderer in the matter of grant of tender for consultancy work or for any other work. As noticed above, the tender process is completed and the contract has been awarded, therefore, it will not influence the contract. In any view of the matter, the document in question cannot be treated as trade secret or commercial confidence. In our considered opinion a contract entered into by the public authority with a private person cannot be treated as confidential after completion of contract."
Furthermore, para 1.1.1 of O.M. No. No.1/6/2011-IR issued by the DoPT on issue of guidelines regarding implementation of suo motu disclosure under section 4 of RTI Act, 2005 states as under Page 7 of 12 "1.1.1 Information relating to procurement made by Public Authorities including publication of notice/tender enquiries, corrigenda thereon, and details of bid awards detailing the name of the supplier of goods/services being procured or the works contracts entered or any such combination of these and the rate and total amount at which such procurement or works contract is to be done should be disclosed. All information disclosable as per Ministry of Finance, Department of Expenditure's O.M. No 10/1/2011-PPC dated 30th November, 2011 on Mandatory Publication of Tender Enquiries on the Central Public Procurement Portal and O.M. No. 10/3/2012- PPC dated 30th March, 2012 on Implementation of comprehensive end-to-end e-procurement should be disclosed under Section 4. At present the limit is fixed at Rs. 10.00 lakhs. In case of procurements made through DGS&D Rate Contracts or through Kendriya Bhandar/ NCCF, only award details need to be published. However information about procurement which fall within the purview of Section 8 of the RTI Act would be exempt."
The RTI Act, 2005 was enacted to ensure greater and effective access of information and progressive and meaningful participation of all concerned. . The preamble also inter alia states "... democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed." The Commission finds that every action of the government must be actuated in public interest and for larger public good. When a public authority is largely funded by the government, a citizen has every right to know about the investments carried out by the public entity in the larger interest of the public.
The Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Page 8 of 12Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
In Mardia Chemical Limited v. Union of India MANU/SC/0323/2004 : (2004) 4 SCC 311, wherein the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, had held as under :
".............it may be observed that though the transaction may have a character of a private contract yet the question of great importance behind such transactions as a whole having far reaching effect on the economy of the country cannot be ignored, purely restricting it to individual transactions more particularly when financing is through banks and financial institutions utilizing the money of the people in general namely, the depositors in the banks and public money at the disposal of the financial institutions. Therefore, wherever public interest to such a large extent is involved and it may become necessary to achieve an object which serves the public purposes, individual rights may have to give way. Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
However, with regard to seeking the personal information of employees, the Commission referred to the decision of the Hon'ble Supreme Court of India in the matter of Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam, Civil Appeal No. 22 of 2009 dated 31.08.2017 wherein it was held as under:
"5) The information was sought on 15 parameters with regard to various aspects of transfers of clerical staff and staff of the Bank with regard to individual employees. This information was in relation to the personal details of individual employee such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders etc. etc
11) Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order and dismiss the application submitted by the 1st respondent under Section 6 of the Act.
12) In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794, 5 it may not be necessary to re-examine any legal issue urged in this appeal.
14) In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by Page 9 of 12 respondent No.1 of individual employees working in the Bank was personal in nature;
secondly, it was exempted from being disclosed under Section 8(j) of the Act and lastly, neither respondent No.1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee and nor any finding was recorded by the Central Information Commission and the High Court as to the involvement of any larger public interest in supplying such information to respondent No.1."
Furthermore, in a recent judgment dated 13.11.2019 in Civil Appeal No. 10044 OF 2010 with Civil Appeal No. 10045 OF 2010 and Civil Appeal No. 2683 of 2010, the Hon'ble Supreme Court of India, had observed as under:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive."
The Hon'ble High Court of Sikkim in the matter of Sancha Bahadur Subba vs. State of Sikkim W.P. (C) 31/2017 dated 30.04.2018 had held as under:
"30. What concludes therefore from the gamut of discussions herein above is that in a given case information pertaining to assets and liabilities can be disclosed with the rider that there must be larger public interest involved justifying such disclosure. As can be culled out from the averments and submissions, the Petitioner herein suspects that the Respondent No. 5 is in possession of assets disproportionate to his known sources of income, however mere suspicion without any prima facie material to substantiate it does not justify the disclosure of such information of the Respondent No. 5 as rests with the concerned government authority. This situation indeed appears to be a fishing expedition embarked upon by the Petitioner without any bona fide public interest."
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 Page 10 of 12 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:
"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:
Page 11 of 12"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. 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."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above, the Commission instructs the Respondent to disclose the copy of the agreement entered into with the transport operator as sought in point No. 03 of the RTI application within a period of 15 days from the date of receipt of this order.
The Complaint stands disposed accordingly.
(Bimal Julka) (िबमल जु का) (Information Commissioner) (सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) (K.L. Das) (के .एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 13.01.2020 Page 12 of 12