Central Information Commission
Santosh Deswal vs Delhi Police on 15 November, 2018
CENTRAL INFORMATION COMMISSION
Baba Gang Nath Marg, Munirka
New Delhi-110067
File No: CIC/DEPOL/A/2016/302146
Date of Hearing : 24.07.2017, 24.08.2017
Date of Decision : 24.08.2017
Date of Hearing (Show cause) : 26.10.2018
Date of Decision (Show Cause) : 26.10.2018
Appellant/Complainant : Ms. Santosh Deswal
Respondent : The Central Public Information
Officer (CPIO), Delhi Police South
District
Information Commissioner : Shri Yashovardhan Azad
PENALTY PROCEEDIGS UNDER SECTION 20 OF THE RTI ACT 2005
ORDER
1. A coordinate bench of the Commission while hearing the captioned matter deemed it expedient to issue show cause notice to Ms. Nupur Prasad, the then Additional DCP & PIO, South District, Delhi Police. It would be worthwhile to recapitulate the relevant part of the order dated 24.08.2017.
8. The Commission, after hearing the submissions of both the parties and perusing the records, observes that no information, in response to the RTI application, has been provided to the appellant by the respondent. However, on a specific query, the respondent submitted that the records would once again be checked and once the records/documents pertaining to the case of the appellant concerning the misappropriation of funds from the appellant's Bank Account are traced, the available information would be provided to the appellant, as per the provisions of the RTI Act. In view of this, the Commission directs the CPIO, South District, Delhi Police to search the records/documents so as to trace the relevant records pertaining to the information sought by the appellant and to provide the requisite information to her within a period of four weeks from the date of receipt of a copy of this order.
Page 1 of 49. The Commission further observes that an antedated and an incorrect reply was furnished to the appellant, in response to his RTI application dated 23.03.2016, by Ms. Nupur Prasad, the then Additional Deputy Commissioner of Police (ADCP) and PIO, South Distt., Delhi Police. In view of this, the Commission directs the Registry of this Bench to issue a Show Cause Notice to Ms. Nupur Prasad, the then Additional Deputy Commissioner of Police (ADCP) and PIO, South Distt, Delhi Police for explaining as to why action under Section 20(1) of the RTI Act should not be initiated against her.
2. In view of the aforesaid order, a show cause notice was issued to the noticee. The notice who is presently posted as Dy. Commissioner of Police, North District, Delhi Police submitted her explanation in the matter vide reply dated 26.10.2018. The same reads as:
....
I beg to state that with respect to the RTI application of Smt. Santosh Deshwal, a reply was provided that the documents concerned is already destroyed vide order No.4482- 5432/HAR/SD dated 28.04.2016. However, the RTI reply contains the date of despatch as 24.04.2016.
In her 2nd appeal, the complainant has been provided with the A/c statement required on 3.10.2017. As PIO, it was my duty to check that the information provided is on time and factually correct. However, the information provided though was right but delayed. Again it was my responsibility to check each and every details of the information before approving it and if found anything wrong to take corrective measures, if required.
I accept that I overlooked the above before finalising and approving the reply. I will be more alert in future.
I, therefore, request you to kindly consider my submission and set aside the show cause notice.
For this I shall be obliged.
Yours faithfully NUPUR PRASAD DCP (NORTH), Delhi Police 26.10.2018 Page 2 of 4
3. The noticee is present and heard. The noticee reiterates the explanation already submitted on record and assured the Commission that there was no deliberate intention on her part to furnish a wrong reply.
Decision:
4. The law with respect to inflicting penalties under the RTI Act is well settled. In Bhagat Singh vs. Chief Information Commissioner and Ors. (03.12.2007 - DELHC) : MANU/DE/8756/2007; the Delhi High Court read 'malafide' on part of PIO to deny disclosure of information as a sine qua non for imposition of penalties specified under the RTI Act, 2005. It was observed that:
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.
5. In Registrar of Companies and Ors. vs. Dharmendra Kumar Garg and Ors. (01.06.2012 - DELHC) : MANU/DE/2552/2012 the Delhi High Court ruled:
59. I may also observe that the approach of the Central Information Commission in seeking to invoke Section 20 of the RTI Act in the facts of the present case is wholly unjustified. By no stretch of imagination could it have been said that PIOs of the ROC had acted 'without any reasonable cause' or 'malafidely denied the request for information or knowingly gave incorrect, incomplete or misleading information, or destroyed information, which was the subject of the request, or obstructed in any manner the furnishing of information'.....
...
Page 3 of 460. 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 show-cause 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.
[Emphasis added]
6. In the facts on present case, the Commission observes that the noticee has sufficiently explained her conduct as PIO. She has accepted the human error which crept in and the Commission does not see any reason to substitute any other view than what is put forth by the noticee. It cannot be said that the noticee acted malafidely. Though, the noticee ought to have been cautious in replying to the RTI application but after all, PIO is not a programmed robot who cannot make error.
7. Information sought has been furnished. The Commission accepts the explanation offered by the noticee, Ms. Nupur Prasad. Consequently, the notice is recalled and the penalty proceedings are dropped. Records of the case shall be consigned to record room.
(Yashovardhan Azad) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(R.P.Grover) Designated Officer Page 4 of 4