Central Information Commission
S Aravindan vs Central Board Of Indirect Taxes And ... on 20 March, 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.(s):- CIC/CBECE/A/2017/171134-BJ+
CIC/CBECE/A/2017/171125-BJ+
CIC/CBECE/A/2017/171128-BJ
Mr. S Aravindan
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Under Secretary, Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
6th Floor, Hudco Vishala Building
Bhikaji Cama Place, R. K. Puram
New Delhi - 110066
... ितवादीगण /Respondent
Date of Hearing : 20.03.2019
Date of Decision : 20.03.2019
ORDER
RTI - I File No. CIC/CBECE/A/2017/171134-BJ Date of RTI application 09.05.2017 CPIO's response 25.07.2017 Date of the First Appeal 21.06.2017 First Appellate Authority's response 06.07.2017 Date of diarised receipt of Appeal by the Commission 11.10.2017 FACTS:
The Appellant vide his RTI application sought information on 14 points in reference to File Nos. (as mentioned in the RTI application) dated 28.11.2016 and 27.03.2017, copy of pages 01 to 14 of File No. C-16012/50/2006-Ad. V; copy of draft order as mentioned in the note sheet; name and designation of the officer who prepared the draft/note sheet; name and designation of the CVO who looked at and signed the draft and other issues related thereto.Page 1 of 6
Dissatisfied due to non receipt of any response from the CPIO within the stipulated time, the Appellant approached the FAA. The FAA vide its order dated 06.07.2017, directed the CPIO to proceed as per Section 11(3) & (4) of the RTI Act, 2005 and to pass an appropriate order, since the third party has failed to make any submission under Section 11(1) of the Act. Subsequently the CPIO vide its letter dated 25.07.2017 informed the Appellant that the information sought is related to "Third Party". However, the status of disciplinary proceedings against Shri V. Subbaraju, Supdt., has already been intimated to him, and no additional information is available with them.
RTI - II File No. CIC/CBECE/A/2017/171125-BJ Date of RTI application 09.06.2017 CPIO's response 13.07.2017 Date of the First Appeal 21.07.2017 First Appellate Authority's response Not on Record Date of diarised receipt of Appeal by the Commission 11.10.2017 FACTS:
The Appellant vide his RTI application sought information on 04 points in reference to letter dated 03.04.2017 sent to R. K. Bhartwal, CVO, CBEC, action taken on the above referred representation; reasons for delay in action taken on the above referred representation; whether the said letter has been looked at by Mr. R. K. Bhartwal and other issues related thereto.
The CPIO, vide its letter dated 13.07.2017 stated that issues regarding disciplinary proceedings instituted against the Appellant's father was raised by him several times through RTI/CPGRAM Portal/ Representation and the same were replied in time by the undersigned. Therefore, in the absence of any additional issues/facts for consideration, no action was taken on the said representation. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The order of the FAA, if any, is not available on the record of the Commission.
RTI-III File No. CIC/CBECE/A/2017/171128-BJ Date of RTI application 09.06.2017 CPIO's response 13.07.2017 Date of the First Appeal 22.07.2017 First Appellate Authority's response 14.08.2017 Date of diarised receipt of Appeal by the Commission 11.10.2017 FACTS:
The Appellant vide his RTI application sought information on 04 points in reference to letter dated 07.04.2017 sent to Ms. Vanaja Sharna, Chairman, CBEC, action taken on the above referred representation; reasons for delay in action taken on the above referred representation; whether the said letter has been looked at by Ms. Vanaja Sharna and other issues related thereto.Page 2 of 6
The CPIO, vide its letter dated 13.07.2017, provided a detailed response to the Appellant. Dissatisfied with the response of the CPIO, the Appellant approached the FAA. The FAA vide its order dated 14.08.2017 while providing a detailed clarifications to the Appellant, rejected the two Appeals filed by him.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Mr. Mukesh Sundriyal, US;
The Appellant remained absent during the hearing. Mr. Bhagesh, Network Engineer NIC studio at Chennai confirmed the absence of the Appellant. The Commission was in receipt of an e-mail from the Appellant dated 18.03.2019 wherein it was submitted that the queries raised by him in the RTI application were very basic information and the same should be provided by the CPIO at the time of his reply. It was further submitted that if the hearing is not possible telephonically, the Commission can proceed hearing as per the RTI Act, 2005. The Respondent informed the Commission that all these matters pertained to the disciplinary action taken against his father Shri V. Subbaraju, Ex. Supdt. (removed from service). The CPIO / FAA had responded suitably. In its written submission dated 19.03.2019 it was further informed that the Appellant had been filing numerous RTI applications as well as grievances on the CPGRAM Portal which were replied from time to time. The brief background of the case was explained as under:-
"Sh. V. Subbaraju, Supdt. was charge sheeted on 12.10.1989 on the charges for demanding and accepting illegal gratification along with two Inspectors. He did not participate in the inquiry which was held ex-parte. The IO held the charges are proved against him vide IO Report dated 30.01.1991. CVC's advised dated 26.03.1991 to impose major penalty of "Removal from Service" on him and exoneration of other two Inspectors. The penalty of "Removal from Service" was imposed on him vide order dated 26.11.1991 with immediate effect. His appeal was rejected vide order dated 27.11.1995 with the approval of President of India. An O.A. No. 896/93 was filed by him before Hon'ble CAT, Madras Bench and the same was also dismissed on 20.04.1995. The Tribunal held that, the applicant has failed to establish either there is no evidence or the findings are perverse. He has also filed Review Petition and the same was rejected vide order dated 27.03.2008. As per Rule 24 of CCS (Pension) Rules, 1972 "dismissal or removal of the Govt. servant from service or post entails forfeiture of his past service"."
Consequently, no retirement benefits were admissible to his father. His Revision Petition had already been considered and disposed with the approval of the competent authority. Therefore, Shri V. Subbaraju had exhausted all departmental and legal remedies and there was no case for re-opening the matter at belated stage.
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 Page 3 of 6 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."
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."
Moreover, 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, Page 4 of 6 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."
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 Page 5 of 6 Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
The Appellant was not present to contest the submissions of the Respondent or to establish the larger public interest in disclosure which outweighs the harm to the protected interests.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent and in the light of the written submission of the Respondent explaining the background of the case, no further intervention of the Commission is required in the matter. For redressal of his grievance, the Appellant is advised to approach an appropriate forum.
The Appeals stand 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: 20.03.2019
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