Central Information Commission
K Balu vs Bharat Heavy Electricals Limited ... on 13 October, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के यसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/BHELD/C/2023/610199
K BALU ....िशकायतकता /Complainant
VERSUS
बनाम
CPIO,
Corporate Office, BHEL
House, Siri Fort, New Delhi
- 110049 ... ितवादीगण /Respondent
Date of Hearing : 03/10/2023
Date of Decision : 03/10/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from complaint:
RTI application filed on : 27/12/2022
CPIO replied on : 24/01/2023, 23/01/2023
First appeal filed on : Not on record
First Appellate Authority order : Not on record
Complaint dated : 23/02/2023
Information sought:
The Complainant filed an RTI application dated 27.12.2022 with the CPIO, BHEL Corporate Office seeking the following information:1
"Please find the copy of the communication dated 01/11/2022 from DHI. The following information is requested relevant to this communication.
1) Date of receipt of this communication by BHEL.
2) Name of the official who received this communication on behalf of BHEL.
3) Name of the official competent to act on this communication
4) Name of the official to whom the competent official had entrusted the responsibility of responding to this communication.
5) Copy of the note if any prepared to amend the BHEL CDA Rules
6) Copy of the procedure to be followed for amending the BHEL CDA Rules
7) Copy of this communication with notes and instructions written on it.
Please find the copy of the RTI application 07/02/2022 and the reply dated 03/03/2022 the CPIO of EPFO. For the information to query no. 4, the RTI application was forwarded to BHEL/Ranipet and BHEL/Tiruchirappalli. The following information is requested relevant to this RTI application.
8) Date of receipt of the RTI Application dated 07/02/2022 forwarded to BHEL-Ranipet by EPFO under section 6(3) of the RTI Act.
9) Date of receipt of the RTI Application dated 07/02/2022 forwarded to BHEL-Tiruchirappalli by EPFO under section 6(3) of the RTI Act.
10) Name of the official who received this RTI application on behalf of BHEL- Tiruchi
11) Name of the official who received this RTI application on behalf of BHEL- Ranipet.
12) Date of receipt of this RTI Application the CPIO of BHEL-Ranipet.
13) Date of receipt of this RTI Application the CPIO of BHEL-Tiruchirappalli 2
14) Date of the disposal of this RTI Application by the BHEL-Ranipet CPIO
15) Date of the disposal of this RTI Application by the BHEL-Tiruchirappalli CPIO
16) Please provide a copy of IOM No. AA:HR: TMX:006(R) dated 06/12/2004
17) Date of withdrawal of the IOM No. AA:HR: TMX:006(R) dated 06/12/2004
18) Please provide a copy of the order/IOM /any documents about the withdrawal of the IOM No. AA:HR: TMX:006(R) dated 06/12/2004."
The CPIO, BHEL Trichy (upon receipt of RTI Application on inter transfer basis) furnished a pointwise reply to the complainant on 24.01.2023 stating as under:
"This has reference to your RTI Application dated 27/12/2022 under RTI Act, 2005 submitted in online portal addressed to CPIO, BHEL, Corporate office. Your above said RTI Application was transferred to CPIO, BHEL, Trichy on 31/12/2022 with a request to reply for query no.9, 10, 13 & 15. In this regard, the following reply is furnished in respect of query nos.9, 10, 13 & 15:
Reply for Query No.9: The said RTI Application is not received at BHEL, Trichy.
Reply for Query No.10: Not applicable in view of the reply provided to query no.9.
Reply for Query No.13: The query is repetitive in nature and the same is replied in query no.9.
Reply for Query No.15: Not applicable in view of the reply provided to query no.9."
The CPIO, BHEL Ranipet (upon receipt of RTI Application on inter transfer basis) also furnished a pointwise reply to the complainant on 23.01.2023 stating as under:
3"Point No. 8: 07.03.2022.
Point No. 11: Rakesh Saraf, Secretary, PF Trust (as addressed by EPFO) Point No. 12: Requested information is not available in any material form.
Point No. 14: Requested information is not available in any material form as Secretary/PF Trust had submitted the reply directly to EPFO on 07.03.2022."
Feeling aggrieved and dissatisfied, the complainant approached the Commission with the instant Complaint on the following grounds -
"...2. The nodal officer has allocated the part of RTI application to CPIOs Ms. Shilpi Sikka, Ms. M Nithya, and Mr. T S Balaji vide registration nos BHELD/R/E/00333, BHELD/R/E/00333/1 and BHELD/R/E/00333/2 respectively.
3. The complainant submits that there is no provision in RTI Act to nominate a nodal officer. The nodal officer has no authority to transfer an RTI application under section 6 (3) of the RTI Act.
4. The CPIOs Ms. M.Nithya and Mr.T S Balaji had replied to the queries transferred to them whereas Ms.Shilpi Sikka is yet to dispose of the RTI application.
5. Therefore, the complainant submits a. Ms. Shilpi Sikka, the CPIO, had intentionally denied the requested information. Hence, the Hon'ble CIC is requested to take necessary action against Ms. Shilpi Sikka, the CPIO, for denying the request under the provisions of the RTI Act.
b. The Hon'ble CIC is requested to instruct BHEL not to nominate a nodal officer for handling RTI Applications on the account of their illegality Relevant Facts emerging during Hearing:
The following were present:-
Complainant: Not present.
Respondent: Shilpi Sikka, Manager (Law) & CPIO present in person.
The written submissions filed by the CPIO prior and post hearing of the instant matter are taken on record.4
Further, the Complainant through a written submission dated 01.10.2023 recused himself from participating in the hearing session citing the following arguments -
"The appellant humbly submits that the CIC Ms. Saroj Punhani is biased towards the public authority. Hence, there is no use in attending the hearing scheduled on 03/10/2023.
Justification for my averment:
File No: CIC/BHELD/A/2021/608157 RTI Filed on : BHELD/R/E/20/00283 dated 15/12/2020 CPIO/BHEL/Ranipet replied on 29/12/2020, First Appeal filed on 03/01/2021 First Appeal disposed on 10/02/2021 Second Appeal filed on 06/03/2021 Written submission filed by the CPIO/BHEL/Tiruchi on 28/03/2022 Additional written submission filed by the CPIO/BHEL/Tiruchirappalli on 28/03/2022 CIC Ordered on 30/03/2022 File NO: CIC/BHELD/A/2021/613684 RTI Filed on : BHELD/R/E/20/00283/1 dated 15/12/2020 CPIO/BHEL/Tiruchirappalli replied on 07/01/2021 First Appeal filed on 18/02/2021 First Appeal disposed on 19/03/2021 Second Appeal filed on 01/04/2021 CIC Ordered on 21/04/2022 In file No: the CPIO/BHEL/Ranipet and CPIO/BHEL/Tiruchirappalli were arrayed as the respondents to favour the public authority.
In file No: CIC/BHELD/A/2021/613684, the fact that the second appeal was filed on 21/04/2021 was suppressed to favour the public authority.
The CPIO/BHEL/Ranipet vide his additional written statement had nominated the CPIO of BHEL/Tiruchirappalli to represent. Whereas in the order of CIC in file no: CIC/SH/C/2015/000399, the CIC had barred the transfer of RTI Application u/s 6(3) within the same public authority. In the second appeal filed in CIC/BHELD/A/2021/608157, the complainant mentioned this CIC order. This CIC had not considered this point to favour the public authority.5
The CPIO had invoked the exemption u/s 8(1)(a) from disclosure of requested information.
Further, the exemption claim of the CPIO was admitted by the first appellate authority. In the written submission filed by the CPIO on 28/03/2022 just two days earlier than the hearing date of 30/03/2022, the reiterated his exemption claim u/s 8(1)(a). In spite no suggestion was put forth by the CPIO regarding the applicability of section 8(1)(e), the CIC voluntarily considered the applicability of section 8(1)(e) to favour the public authority.
The complainant submits that if the CIC is admitting the applicability of section 8(1)(e) during the hearing, then proper time should be given to the complainant for submission of the written statement. Unfortunately, CIC had not allowed such an opportunity to favour the public authority.
The complainant submits in the Supreme Court Order cited in CIC order in file no: CIC/BHELD/A/2021/608157 that the concept of fiduciary was explained. There is no fiduciary relationship exists in the information requested from the public authority. The CIC had inappropriately cited the Supreme Court order to favour the public authority.
File NO: CIC/BHELD/A/2021/607267 RTI Filed on : BHELD/R/E/20/00241 dated 09/10/2020 filed on 14/10/2020- 16 information items Query 7 and 16 were transferred to the CPIO/BHEL/Tiruchirapalli vide BHELD/R/E/20/00241/1 CP CPIO/BHEL/Corporate Office replied on 18/11/2020 CPIO/BHEL/Tiruchirappalli replied on 20/11/2020 First Appeal against the order of the CPIO/BHEL/Corporate Office and CPIO/BHEL/Tiruchirappalli filed on 15/12/2020 First Appeal disposed on 25/01/2021 The second Appeal with a limited prayer to put the recruitment information in the public domain was filed on 01/03/2021 CIC Ordered on 30/03/2022 The complainant wants to know which rule permits to array of two or more CPIOs for the second appeal against one CPIO's order. The lack of understanding of the RTI Act may be the reason for such confusion.6
The CIC had not disposed of this second appeal on merits to favour the public authority. The CIC decision without considering the second appeal prayer ridicules the information-seeking procedure under the RTI Act.
It is unfortunate to state that the CIC decision reveals the fact that the CPIO's decision, first appeal and First Appeal order were not been perused by the CIC to favour the public authority.
The CPIO had furnished incorrect information on putting recruitment information in the public domain. The candidates who applied for recruitment can only view their application status.
Therefore, no recruitment information is available in the public domain. The CIC had taken the incorrect information furnished by the CPIO without any verification to favour the public authority thereby weakening the purpose of the RTI Act to contain corruption.
For the reasons stated above the CIC is biased towards the public authority thereby weakening the purpose of the RTI Act to contain corruption. In this circumstance attending the hearing is not warranted."
The CPIO submitted that a point wise reply has already been provided to the Complainant vide letter dated 10.2.2023, relevant extracts of which are reproduced below for ready reference -
"1. The letter was received on 11.11.2022.
2. The said letter was received in the office of ED(HR).
3. It was transferred to AGM (HR).
4. to 7. The information is not available.
16. to 18. The information sought by the applicant is confidential information which is not shared with public at large. As such, the information is exempted from disclosure under Section 8(1)(d) of the RTI Act, 2005."
Decision At the outset, the Commission rejects the contentions of the Complainant raised through his latest written submissions as none of the points are applicable to the facts of the instant matter.
7Notwithstanding the aforesaid, the Commission upon a perusal of records observes that the main ground of the instant Complaint was non-receipt of any reply from the CPIO, BHEL Corporate Office. In response to which, the CPIO explained that a point wise reply has already been furnished to the Complainant vide letter dated 10.02.2023.
Here, the Commission finds no infirmity in the submissions of the CPIO as it was as per the provisions of RTI Act. Now, since it is a complaint filed under Section 18(2) of the RTI Act, the Commission does not find any merit to initiate any action against the CPIO for want of any malafide intent on their part. Here, a reference may be had towards a judgment of the Hon'ble Delhi High Court in the matter of Registrar of Companies & Ors. v. Dharmendra Kumar Garg & Anr. [W.P.(C) 11271/2009] dated 01.06.2012 wherein it was held:
" 61. 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...."
Having observed as above, no further action is warranted in the matter.
Nonetheless, in the spirit of RTI Act, the CPIO is directed to share a complete copy of her latest written submission free of charge with the Complainant immediately upon receipt of this order under due intimation to the Commission.
The Complaint is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सू सूचना आयु ) 8 Authenticated true copy (अिभ मािणतस यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ,उप-पंजीयक दनांक / Date 9