Central Information Commission
Shiva Nand Sharma vs Ministry Of Health & Family Welfare on 4 June, 2020
के ीय सचू ना आयोग
Central Information Commission
बाबा गगं नाथ माग, मिु नरका
Baba Gangnath Marg, Munirka
नई िद ली, New Delhi - 110067
िशकायत सं या / Complaint No.:- CIC/MH&FW/C/2018/168132-BJ
Mr. Shiva Nand Sharma
(email id - [email protected])
.... िशकायतकता /Complainant
VERSUS
बनाम
CPIO & Dy. Director, Admn. (MSO)
Ministry of Health & Family Welfare
DGHS, Medical Store Organization
West Block No. 1, Wing No. 6, R.K. Puram
New Delhi 110066
.... ितवादीगण /Respondent
Date of Hearing : 02.06.2020
Date of Decision : 04.06.2020
Date of filing of RTI application 10.05.2018
CPIO's response 15.11.2018
Date of filing the First appeal 10.07.2018
First Appellate Authority's response Not on Record
Date of diarised receipt of Complaint by the Commission 20.11.2018
ORDER
FACTS:
The Complainant vide his RTI application sought information on 15 points regarding the date from which Biometric Machine had been installed in MSO; whether A. C. Saxena was marking his attendance in Biometric system since installation of machine; if so, abstract of biometric attendance in respect of Sh. A. C. Saxena since installation of system in MSO; before installation of Biometric where Sh. A. C. Saxena was marking his attendance in manual; if so, copy of any month of manual marking of attendance by Sh. A. C. Saxena and other issues thereto.
Dissatisfied due to non-receipt of any response from the stipulated time period, the Complainant approached the FAA. The CPIO, vide its letter dated 15.11.2018 stated that file was under
submission. The order of the FAA, if any, is not on the record of the Commission.Page 1 of 7
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Mr. Shiva Nand Sharma through TC;
Respondent: Mr. Satyendra Singh, SO, MSO, DGHS in person;
The Complainant reiterated the contents of the RTI application and stated that a vague and misleading reply was provided by the CPIO. While re-iterating his written submission, the Complainant submitted that the queries raised in the RTI application pertained to allegations of irregularities committed by an official of the Public Authority in marking his attendance which was not addressed properly. The Complainant thus prayed for imposition of penalty against the delinquent officials. The First Appeal was also not decided, till date. In its reply, the Respondent while re-iterating the reply of the CPIO/ FAA as also their written submission stated that the Complainant being a terminated employee of their organization was filing multiple RTI applications, complaints, grievances on PG portal, etc making false and baseless allegations against the officials of MSO and seeking information, status file, etc which was disproportionately diverting the resources of the Public Authority. As regards the instant matter, the Respondent stated that since they were working with a skeletal staff the information could not be provided earlier. Moreover, the concerned ASO responsible to provide the information had since been promoted and all records pertaining to the reply provided subsequently were available in his e-office portal which could not be accessed earlier. The Respondent however assured to provide an updated response in the matter, if so directed by the Commission. On being queried if he had approached the CVO or other higher authorities in the matter, the Complainant replied in the affirmative but submitted that no satisfactory action was taken on his representation (s), till date.
The Commission was in receipt of a written submission from the Respondent dated 01.06.2020 wherein it was stated that the was appointed as a consultant on 16.04.2016 in MSO, R K Puram and his services were terminated on 26.09.2018 for misconduct continuously seeking information pertaining to inter administration through RTIs, baseless allegations against officials/ officers of MSO. After termination he was continuously creating hindrances in the functioning of the MSO by innumerable RTIs Public Grievances, Representations, etc thereby diverting the already scarce resources and precious time of MSO officials. A lot of time and resources were wasted/ diverted in replying and furnishing information in RTIs and PGS being submitted by the which was third party information. It was also submitted that the MSO was functioning under the DGHS and all administrative decisions were submitted to DGHS/ Ministry of health and Family Welfare and after seeking approval they were being implemented. Thus, it was submitted that there was a well organized monitoring system. As regards the instant matter, the Respondent re-iterated the reply of the CPIO as also the aforementioned submission regarding termination of services of the and filing of innumerable complaints, grievances on PG portal, RTI applications, false and baseless allegations against the officials of MSO and seeking information, status file, etc which would disproportionately divert the resources of the Public Authority. It was also mentioned that in his Complaint, the applicant himself had admitted that the CPIO had given a reply. However, the ASO then dealing with the matter had been transferred Page 2 of 7 on promotion. The First Appeal filed by the Complainant was not found to be received in their office.
The Commission was also in receipt of a written submission from the Complainant wherein it was stated that the rejoinder submitted by MSO was not maintainable since as per the RTI Act, 2005 only the CPIO/ FAA were authorized to submit the written submission and not the Nodal officer. The duty of Nodal Officer was only to transfer the application to the concerned CPIO. As per the directions dated 11.05.2020, MSO was supposed to submit the rejoinder atleast seven days before 02.06.2020 but the written submission was sent on 01.06.2020. The MSO had again tried to mislead the Commission and leveled false charges in all the letters which had no link with his RTI application.
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 and Anr. Vs. Aditya Bandopadhyay and Ors), 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 Page 3 of 7 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."
In the instant matter, no record was available with the Commission pertaining to the information provided to the Complainant subsequent to the initial reply dated 06.09.2018. The Commission in this context, referred to the decision of the Hon'ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein on the issue of the duties and responsibilities of the CPIO, it was held that:
" 7"it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken".
The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
8.............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non- disclosure."
The Commission further observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon'ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was held as under:
"14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away Page 4 of 7 through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy."
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only."
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, issued by the M/o Personnel, Public Grievances and Pensions, D/o Personnel and Training, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. "
The Commission also 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 5 of 7 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 Complainant 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 Complainants 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 Complainants, 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.Page 6 of 7
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 decisions cited above, the Commission cautioned the CPIO to exercise due care in future to ensure that correct and complete information is furnished timely to the RTI applicant(s) as per provisions of the Act failing which penal proceedings under Section 20 shall be initiated. The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
However, for redressal of his grievance, the Complainant is advised to approach an appropriate forum.
The Complaint stands disposed accordingly.
(The Order will be posted on the website of the Commission) (Bimal Julka) (िबमल जु का) (Chief Information Commissioner) (मु य सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) K.L. Das (के .एल.दास) Dy. Registrar (उप-पंजीयक) 011-26186535/ [email protected] िदनांक / Date: 04.06.2020 Page 7 of 7