Central Information Commission
Shishir Chand vs Medical Council Of India on 31 May, 2019
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/MEDCI/A/2018/169752-BJ
Mr. Shishir Chand
....अपीलकता /Appellant
VERSUS
बनाम
1. CPIO
Dy. Secretary & PIO
Medical Council of India, Pocket 14
Sector 8, Dwarka Phase 1
New Delhi - 110077
2. CPIO & Law Officer
Board of Governors in Supersession of Medical Council of India
Pocket 14, Sector 8, Dwarka Phase 1
New Delhi - 110077
... ितवादीगण /Respondent
Date of Hearing : 30.05.2019
Date of Decision : 31.05.2019
Date of RTI application 27.08.2018
CPIO's response 29.10.2018
Date of the First Appeal 01.10.2018
First Appellate Authority's response 01.11.2018
Date of diarised receipt of Appeal by the Commission 28.11.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 03 points regarding Ranchi University's Counter affidavit stating that Dr. Atul Chhabra was admitted to MGM Medical College, Jamshedpur on the basis of his name appearing in the list of successful candidates who cleared MADT, 1989 Entrance Test conducted by the Govt. of Bihar vis a vis' record of the MGM Medical College, Jamshedpur where admission register showed admission of the accused doctor under CBSE quota through AIPMT, 1989 Exam, etc. Dissatisfied due to non-receipt of any response, the Appellant approached the FAA. Subsequently, in the reply dated 29.10.2018, the CPIO had informed the Appellant that the issue had already attained finality vide order dated 30.08.2017 and 05.09.2017 passed by the Single Judge of High Court of Delhi in WP (C) No. 277/2017 which was further affirmed vide order dated 26.04.2018 passed by the Page 1 of 6 Division Bench of the High Court of Delhi in LPA 693/2017. The review application against order dated 26.04.2018 passed in the LPA No. 693/2017 had also been dismissed vide order dated 06.07.2018 passed by the Division Bench of the High Court of Delhi in Review Petition No. 246/ 2018. The FAA, vide its order dated 01.11.2018 while stating that the CPIO had replied vide letter dated 29.10.2018 informed the Appellant that the Indian Medical Council (Amendment) Ordinance, 2018 was promulgated on 26.09.2018. During the transition period from 26.09.2018 to 15.10.2018, disposal of RTI applications/ First Appeals had not taken place hence there was a delay in responding.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Shishir Chand;
Respondent: Mr. Shikhar Ranjan, Law Officer and Dr. Parul Goel, DS;
The Appellant reiterated the contents of the RTI application and stated that the information sought had not been received by him, till date. While narrating the background of the case, it was alleged that Dr. Chhabra's gross reckless and criminal negligence in treatment had led to the death of his younger brother, Mr. Vishal Chand aged 33 in Jamshedpur in 2011 at Tata Main Hospital, Jamshedpur. It was further alleged that Dr. Atul Chhabra, the murder accused was a "Licensed quack" and a beneficiary of irregularity in medical seat allotment. Furthermore, in the year 2014, Dr. Chhabra was booked u/s 304 IPC (culpable homicide not amounting to murder) and criminal case is pending in the Court of CJM, Jamshedpur. It was further articulated that he had submitted a detailed representation of 110 pages dated 10.10.2018 before the Respondent Public Authority wherein evidence of fraudulent admission of the accused in Medical College was produced which was over looked by them. It was further stated that despite such detailed submission, the Respondent denied the desired information after taking undue advantage of a prima facie observation made by the Ld. Single Judge of Delhi High Court in W.P.(C) 277/2017. It was further submitted that the Respondent had also failed to comply with the decision of the Commission in Appeal No. CIC/YA/A/2015/000986 dated 23.12.2015 and non-compliance notice dated 23.05.2016. He further challenged the second non-reasoned, non-speaking decision of the Respondent dated 14.02.2019 maintaining its earlier decision of "warning". In its reply, the Respondent submitted that a suitable reply had been furnished to the Appellant wherein it was categorically informed that "the issue had already attained the finality vide order dated 30.08.2017 and 05.09.2017 passed by the Hon'ble Single Judge of High Court of Delhi in WP (C) No. 277/2017 which was further affirmed vide order dated 26.04.2018 passed by the Division Bench of the High Court of Delhi in LPA 693/2017. The review application against order dated 26.04.2018 passed in the LPA No. 693/2017 had also been dismissed vide order dated 06.07.2018 passed by the Division Bench of the High Court of Delhi in Review Petition No. 246/ 2018. The relevant Para of the said decision was read out by the Respondent which was narrated as under:-
2. Insofar as prayer no. (iii) is concerned, this Court is not inclined to grant the same.
Since the allegation had been made that the doctor in question was not qualified, and certain conflicting reports were stated to have been received by the petitioner in this regard, this Court has examined the said aspect. Respondent no. 4 has filed an affidavit which clearly affirms that respondent no. 2 had passed his MBBS final exams held in April 1995. Respondent no. 4 has also produced a tabular statement, indicating the marks obtained by respondent no. 2 (his name features at serial no. 3 of the said sheet).
4. Respondent no. 2 has also produced the original degree dated 16.04.1998 awarded to him, which indicates that respondent no. 2 had passed the Bachelor of Medicine and Page 2 of 6 Bachelor of Surgery Examination held in the month of April 1995. He has also produced the original certificate of registration of respondent no. 2 with the Bihar Council of Medical Registration. It appears that some confusion was caused because the final examination is termed as the final examination 1994, although it was held in April 1995. The same is apparent from the degree issued to respondent no. 2. In this view, this Court does not find that there is any reason to further verify the medical qualifications of respondent no. 2. The said prayer is, accordingly, rejected.
The Commission was in receipt of a written submission from the Appellant dated 20.05.2019, wherein it was inter alia prayed to provide information in the form of detailed findings of its Ethics Committee with respect to the bona fides of medical admission and subsequent degree issued to the accused doctor in Appeal No. 83 of 2013 titled "Mr. Shishir Chand Vs. Dr. Atul Chhabra" and to impose a heavy cost on Respondent for its repeated attempts to deny and stonewall crucial information.
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 6
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."
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 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 Page 4 of 6 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 Appellant could not substantiate his claims regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause.
The Commission observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."Page 5 of 6
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decision of the Hon'ble High Court of Delhi at New Delhi in W.P.(C) 277/2017 dated August 30, 2017, no further intervention of the Commission is required in the matter. It needs to be understood that the Commission under the provisions of Section 2 (f) of the RTI Act, 2005, had a limited jurisdiction and it would be inappropriate for it to overstep its jurisdiction.
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: 31.05.2019
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