Central Information Commission
Varun Krishna vs Spmcil Security Printing Press ... on 20 December, 2018
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/SPPRE/A/2017/179805-BJ-Adjunct
Mr. Varun Krishna
....अपीलकता
/Appellant
VERSUS
बनाम
1. The CPIO,
Security Printing and Minting Corporation
Of India Ltd., Miniratna Category-I,
CPSE, 16th Floor, Jawahar Vyapar Bhawan,
Janpath, New Delhi-110 001
2. CPIO and General Manager,
India Security Press,
Nasik Road
Nashik-422101, Maharashtra
3. Shri S.V. Lokhande
CPIO, India Security Press,
Nasik Road
Nashik-422101, Maharashtra
4. Shri Hari Pant,
General Manager
(Then First Appellate Authority, ISP, Nashik)
India Government Mint,
Shahid Bhagat Singh Marg, Fort,
Mumbai, Maharashtra- 400001
... ितवादीगण /Respondent
Date of Hearing : 05.10.2017
Date of Decision : 06.10.2017 and 17.12.2018
Date of filing of RTI application 11.06.2016
CPIO's response 20.06.2016
Date of filing the First appeal 29.07.2016,
10.09.2016-
Reminder
First Appellate Authority's response Not on Record
Date of diarised receipt of Second Appeal by the Commission 18.10.2016
ORDER
The Appellant vide his RTI application sought information on 05 points regarding MOM recorded between ISP Nashik and Aerographic Papers Pvt. Ltd. dated 22.03.2015, problems in detail regarding "Printing Quality" along with certified copy of proofs (including certified copy of feedback and copy of print report received from the printing department of ISP, Nashik, reasons for not mentioning anything about "Printing Quality" in letter dated 17.03.2016 on the basis of which MOM happened, etc. The CPIO, SPMCIL, New Delhi vide its letter dated 20.06.2016, transferred the RTI application to the General Manager, ISP, Nashik u/s 6 (3) of the RTI Act, 2005. Dissatisfied on not receiving any response from the CPIO, the Appellant approached the FAA. The order of the FAA, if any, is not available on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Varun Krishna;
Respondent: Mr. V. Ramulu, CPIO and Manager (HR), ISP Nashik through VC; Mr. K. P. Srivastava, Manager, New Delhi and Mr. Naveen Dogra, Assistant, New Delhi in person;
The Appellant at the outset referred to the written submissions of the Respondent, Nashik dated 28/29.09.2017 and stated that despite repetitive directions of the Commission, the copy of the submissions were not endorsed to him by the Respondent and he had to obtain the same from the Commission. The Appellant also raised objections to the usage of the words "foul language" by the Respondent, Nashik in their written submission and pleaded that the Respondent, Nashik was required to prove that he indeed used foul language against the Public Authority. While referring to the contents of the RTI application, the Appellant submitted that there was deemed refusal to provide information by the CPIO and FAA and information on points 4.1.and 5 should have been provided to him as per the provisions of the RTI Act, 2005. In his written submission dated 25.09.2017, the Appellant raised certain questions for the consideration of the Commission on whether the PIO and FAA- ISP Nashik had caused deemed refusal u/s 7 (2) of the RTI Act, 2005 whether the PIO or FAA or CMD-SPMCIL responded upon reminder sent vide letter dated 19.09.2016 and whether past direction of the Commission had been complied till date by the FAA and PIO of ISP-
Nashik.
In its reply, the Respondent, Nashik at the outset tendered his unconditional apology for not endorsing the copy of their written submission to the Appellant and attributing the omission to the local holidays in their office and other professional preoccupations. Explaining that the information sought pertained to tender no. 139 which was already discussed in several other decisions of the Commission, the Respondent Nashik, submitted that the queries of the Appellant were interrogatory in nature. It was also submitted that in compliance of the decision of the Commission in CIC/MP/C/2016/000171-BJ dated 10.02.2017, minutes of the meeting were provided to the Appellant in the month of February, 2017.
The Commission was also in receipt of a written submission from Shri Sunil Durare, APIO and Dy. Manager (HR) dated 28/29.09.2017 wherein it was stated that the ISP being a public utility service served the nation in all the ways. Being a sensitive and security organisation of the country, there were always threats of affecting the sovereignty and integrity of India, including commercial confidence, trade secrets, disclosure of information that harmed the competitive position of third party, information available to a person in his fiduciary relationship, disclosure of information which had no relationship to any public authority or any larger public interest. It was submitted that being a Public Authority, the concerned CPIO/ APIO and FAA were sincerely involved in replying to the citizens under the RTI Act without any malafide intention to anyone. The Appellant was a vendor/ supplier of materials and was participating in various tenders from time to time. Since he was disqualified in certain tenders he started submitting repetitive RTI applications, raising interrogatory queries and grievances to one or the other authority. The process of sending RTI application was continuously going on without an end and the Appellant was raising interrogatory questions continuously with baseless and false allegations and was using RTI as a tool to compromise with him and award the contract even after disqualifying the tender conditions. There were many other vendors participating in tenders as per the SPMCIL Procurement Manual who were satisfied with their rejections from tenders but as such not preferring to use the RTI Act to harass the Public Authority. With regard to the present case, it was submitted that queries were interrogatory in nature. However, the ISP had provided similar information on MOM several times in other similar applications. Copy of the said was endorsed to the Appellant which was signed between ISP and Aerographic Papers Pvt. Ltd., Nagpur. Since his firm was disqualified in tender he had started harassing CPIO by raising questions which were interrogatory and vague in nature on MOM. However similar queries pertaining to tender 139/2014 had already been taken up in different occasions and disposed off. The matter was also taken up in CIC case No. CIC/MP/C/2016/000171-BJ dated 10.02.2017 against an application dated 30.09.2015 and 09.11.2015 regarding queries raised in RTI application dated 10.08.2015, CIC/MP/C/2016/000108 dated 28.10.2016 and the same was replied by ISP vide letter dated 29.01.2017 endorsing a copy to the Commission. In view of the above correspondence being received by the Appellant and denial of receipt of information showed the intent of repetitive applications for harassing the PIO and there was no malafide intention for withholding the information. It was submitted that the Appellant was repeatedly and continuously forwarding applications with slight modifications which was leading to wastage of public money, time and energy of Public Officers like PIO, FAA and the Commission. On the issue of repeated applications filed by the Appellant, a reference was made to the decisions of the Commission in CIC/AD/A/2013/001326-SA dated 25.06.2014 and CIC/SA/A/2015/001849 dated 25.02.2016. It was also submitted that the Appellant being not satisfied by the replies/ information provided by the ISP, did not mean that the PIO and FAA were furnishing wrong information with malafide intention as alleged by the Appellant. It was therefore requested to advise the Appellant to refrain from submitting such repetitive, interrogative questions, suggestions, complaints, opinions, directions, unreasonable queries and foul languages and allegations to the Public Authority.
In its reply, the Respondent, Delhi vide his oral submissions made during the hearing and the written submission dated 20.09.2017, sent by the Manager (OL) and PIO, SPMCIL, New Delhi stated that since the information sought pertained to ISP, Nashik, it was transferred u/s 6 (3) of the RTI Act, 2005 to ISP, Nashik. On receiving the appeal, the FAA also informed the Appellant that the PIO, Corporate Office had only transferred his RTI application to ISP, Nashik which had a separate PIO and FAA made available for providing the information relating to his queries hence his appeal was not maintainable at Corporate Office. It was explained that ISP, Nashik was one of the nine units which was functioning under the umbrella of SPMCIL which had separate CPIO and FAA for each unit and Corporate Office for providing the information held by them. The name of the PIO and FAA of each unit was also uploaded on the website of SPMCIL. It was also stated that every time the Appellant was informed that the provisions of Section 5 (4) and 5 (5) were applicable where PIO had to collect information from any other officer within the office to furnish the information. It was also mentioned that the PIO/ FAA of any Public Authority did not enjoy the immunity to give any direction to any other PIO/ FAA like ISP, Nashik except transferring the RTI applications received from the Public in respect of units under SPMCIL to avoid disproportionate diversion of resources as per Section 7 (9) of the RTI Act, 2005.
On a query from the Commission whether the RTI application and the First Appeal were decided by them or not, the Respondent, Nashik replied in the negative and submitted that at the time of filing of RTI application he was not the CPIO and that subsequent to his appointment he had made efforts to systematically maintain and organise records and provide timely response to the information seekers. The Commission was appalled to learn that despite transfer of the RTI application by Respondent Delhi, filing of first appeal and reminder to the FAA, no response was provided in this matter which was a grave violation and disrespect to the provisions of the RTI act, 2005. It was felt that the conduct of Respondent, Nashik was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information. On being queried regarding the details of CPIO and FAA at Nashik concerned with this matter, the Respondent Nashik submitted that Shri S.V. Lokhande and Shri Hari Pant (currently posted at IGM, Mumbai) were the concerned CPIO and FAA, respectively.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, it is evident that no reply had been provided by the Respondent, Nashik in the matter despite reminders, which is a grave violation of the provisions of the RTI Act, 2005. The Commission instructs the then CPIO and FAA Shri S.V. Lokhande and Shri Hari Pant, GM to showcause why penal action should not be taken under the provisions of the Act for this misconduct and negligence as per Section 20(1) of the RTI Act, 2005, within 30 days from the date of receipt of this order.
The Commission also directs the CPIO, Nashik to re-examine points (4.1) and (5) of his RTI application and provide a suitable response to the Appellant within a period of 15 days from the date of receipt of this order. The appeal stands disposed with the above direction.
Note: Subsequent to receipt of the reply to the show cause notice dated 24.10.2017 and 30.10.2017 from the Former CPIO, ISP, Nasik and the GM, India Government Mint respectively, the Commission hereunder pronounces its decision in the matter.
In the reply to the show cause notice dated 24.10.2017, Shri S.V. Lokhande (Former CPIO, ISP, Nashik) submitted that the applicant was a vendor/supplier of materials and was participating in various tenders from time to time, whenever he was disqualified in certain tenders he used to submit repeated RTI applications with the same date and with the similar issues with slight modifications, raising interrogatory queries and grievance. In the process of attending his numerous similar issues on same and various dates, the instant application might have been overlooked while obtaining information from the concerned departments. Further, it was submitted that the instant RTI application dated 11.06.2016 addressed to CPIO-SPMCIL, New Delhi alleged to be forwarded vide letter dated 20.06.2016 had not been in receipt at their office, as per the available records and that the information sought by the applicant in respect of tender no 139 was provided through various other applications and grievance portal. Thus the instant application might have been overlooked assuming the information was provided to the applicant because the issue was addressed through other applications on several occasions. However, as directed, the information on points 4.1 & 5 of the instant RTI application had been provided via letter dated 18.10.2017 to him. In view of the above explained factual position, it was requested to condone the lapse as the same happened due to oversight of the said application as stated above and not due to any malafide intention.
In the reply to the show cause notice dated 30.10.2017, the General Manager, India Government Mint submitted that the firm had resorted to the RTI route to raise various queries and cast aspersions on public servants in discharge of their duties. There were number of RTIs raised by the Appellant firm on the same issue and these had been replied. However, the firm/individual resorts to never ending RTI applications and at times, on the same issue even when they were already settled. In the instant case, too, the firm had written to the CMD of SPMCIL head quarters, New Delhi regarding the case pertaining to ISP, Nasik, while knowing that the case pertains to ISP, and ISP had attended to this particular matter in various correspondences. The letter dated 20th June, 2016 of SPMCIL, regarding his representation to CMD, had not been received at ISP. There were no records to show that the same had been received at ISP and hence ISP was not aware of it at all. However, the letter addressed to FAA ISP, dated 29th July 2016 had been received on 6th Aug 2016 at ISP. But, perusal of the letter dated 29th July 2016 addressed to FAA ISP Nasik, clearly showed that the applicant had appealed to FAA only to instruct/order CPIO to reply to his original appeal. It was not clear as to which appeal he was referring to, since ISP had not received the letter of 20th June 2016. The applicant had also sought a personal hearing in the case from the FAA and again sought the action of the CPIO to his query. As already stated above, since ISP was not aware of his original application and since innumerable RTI applications from the individual had been responded to as also some conclusions by CIC in these cases, there was some hesitancy on the part of the CPIO and FAA in responding, due to confusion in the matter.
In the mean time, on 11th Sep 2016 (i.e. about four weeks later), a reminder was sent to FAA, ISP which was received by ISP on 19th Sep 2016. However, as per transfer order of SPMCIL, New Delhi dated 6th September 2016 he relinquished the charge of ISP on 19th Sept 2016 to take over as General Manager, India Government Mint, Mumbai. Thus, he was not in a position to respond to the reminder. In the above referred order it has been mentioned that Shri Varun Krishna had insinuated that the CPIOs and FAA did not respond to RTI applications. Furthermore, the Appellant flooded the organization with multifarious RTI applications and had filed about 35 RTI applications till date with ISP. The fact was that the CPIO and FAA had religiously attended/replied to the RTI applications after obtaining various inputs from concerned departments. It was further stated that on another RTI application of his, in respect of another tender, the FAA in the month of May 2016 had forwarded a four page detailed reply, with enclosures, to 14 questions and providing such point wise reply involved a deep study of the case and detailed analysis. Such a job required tedious hours of sifting through various documents, cutting across various departments and entailed precious man-hours of work. Furthermore, it was assured that he was and is, committed to honour the RTI Act and will diligently strive to fulfil the requirements under the Act.
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 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 Commission also observed that the Hon'ble High Court of Delhi in the matter of R.K. Jain v. V.P. Pandey, CPIO, CESTAT, New Delhi in W.P. (C) No. 4785/ 2017 dated 10.10.2017 adjudicated an order of the Commission dated 17.04.2017 whereby the Respondent was cautioned to exercise due care in future and to ensure that correct and complete information is furnished to the RTI applicants. It was decided that:
"2. The grievance of the petitioner is that although the CIC had accepted that there was a delay in providing the necessary information to the petitioner, the CIC had not imposed the penalty as required under Section 20(1) of the Right to Information Act, 2005. It is well settled that imposing of the penalty is a discretionary measure. In Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 a division bench of this Court had considered the question whether the levy of penalty was discretionary and held as under..........
3. In this case it is apparent that the CIC had in its discretion considered that a order cautioning the CPIO would be sufficient. This Court is not inclined to interfere with such exercise of discretion."
Furthermore, the Hon'ble High Court in the matter of R.K. Jain v. CIC and Anr. in W.P.(C) 4152/2017 dated 10.10.2017 had held as under:
"5. The question whether the CIC had the discretion to restrict the penalty or whether penalty as provided under Section 20 of the Act is mandatory, is no longer res integra. The said question was considered by a Division Bench of this Court in Anand Bhushan v. R.A. Haritash:
ILR (2012) 4 Delhi 657 and the relevant extract of the said decision is set out below....
6. In view of the above, this Court finds no reason to interfere with the discretion exercised by the CIC. The petition is, accordingly, dismissed."
A reference can also be made to the judgement of the Hon'ble High Court of Delhi in titled Ankur Mutreja v. Delhi University in LPA 764/2011 dated 09.01.2012 wherein it was held as under:
a) the Act does not provide for the CIC to, in the penalty proceedings, hear the information seeker, though there is no bar also there against if the CIC so desires;
b) that the information seeker cannot as a matter of right claim audience in the penalty proceedings which are between the CIC and the erring information officer;
c) there is no provision in the Act for payment of penalty or any part thereof imposed/recovered from the erring information officer to the information seeker;
d) the penalty proceedings are akin to contempt proceedings, the settled position wherein is that after bringing the facts to the notice of the Court, it becomes a matter between the Court and the contemnor and the informant or the relator does not become a complainant or petitioner in contempt proceedings."
The aforementioned decision was also relied upon and affirmed by the Hon'ble High Court of Delhi in its decision in Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 wherein it was held as under:
"8...........................The information seeker has no locus in the penalty proceedings, beyond the decision of the complaint/appeal and while taking which decision opinion of default having been committed is to be formed, and at which stage the complainant/information seeker is heard.
9. ............................ In the context of the RTI Act also, merely because the CIC, while deciding the complaints/appeals is required to hear the complainant/information seeker, would not require the CIC to hear them while punishing the erring Information Officer, in exercise of its supervisory powers."
ADJUNCT DECISION Keeping in view the facts of the case and submission made by both the parties as also the reply to the show cause notice furnished by the Respondent, no further intervention of the Commission is warranted in the matter. The show cause notice is dropped.
The Respondent is however, cautioned 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.
िबमल जु का)
Bimal Julka (िबमल का
सूचना आयु )
Information Commissioner (सू
Authenticated true copy
(अिभ मािणत स ािपत ित)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 17.12.2018
Copy to:-
1. The Secretary (EA), Department of Economic Affairs, Ministry of Finance, Room No.130, North Block, New Delhi.
2. The Chairman & Managing Director, SPMCIL, Corporate Office, 16th Floor, Jawahar Vyapar Bhavan, Janpath, New Delhi-110 001(with the instruction to consistently organise sensitization and awareness programmes in respect of the implementation of the RTI Act, 2005.)