Central Information Commission
Bipin Batra vs National Board Of Examinations on 22 May, 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.:- CIC/NBDOE/A/2018/611376-BJ-FINAL
Dr. Bipin Batra
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
National Board of Examinations,
Ansari Nagar, Mahatma Gandhi Marg (Ring Road),
New Delhi - 110029
... ितवादीगण /Respondent
Date of Hearing : 22.04.2019/20.05.2019
Date of Decision : 22.04.2019/22.05.2019
Date of RTI application 16.11.2017
CPIO's response 15.12.2017
Date of the First Appeal 20.12.2017
First Appellate Authority's response 05.02.2018
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Commission in its earlier order dated 22.04.2019 in Appeal No.(s) CIC/NBDOE/A/2018/611376-BJ + CIC/NBDOE/A/2018/633177-BJ+ CIC/NBDOE/A/2019/600161-BJ-INTERIM, held as under:
"Keeping in view the facts of the case and the submissions made by the Respondent, the Commission adjourned the hearing in all these matters and fixed another date i.e. on 30th April, 2019 at 01.15 p.m. to resume the hearing. The adjourned date of hearing was informed to the Respondent during the hearing who acknowledged its communication in writing. The Respondent was directed to ensure that its written replies were delivered to the Appellant within the said period.
The DR is directed to fix another date of hearing in all these matters on 30th April, 2019 at 01:15 p.m."Page 1 of 7
Note: Subsequently, the Dy. Registrar, vide its e-mail dated 25.04.2019 fixed the hearing on 30.04.2019 which was further postponed to 20.05.2019 as IC (BJ) had to attend a meeting for the selection of State Information Commissioner, Maharashtra convened by the State Government of Maharashtra.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Bipin Batra along with Mr. Tarunvir Singh Khehar and Mr. Vishal Tripathi; Respondent: Capt. K. Paul James, Dy. Dir. (Admn.) & CPIO and Mr. Waize Ali Noor, Advocate;
Both the parties were present at the hearing. The Appellant's representative while reiterating the contents of the RTI application stated that the information sought had wrongly been denied by the Respondent citing Section 8(1) (h) of the RTI Act, 2005 without justifying the grounds for denial. With regard to copy of inquiry report, it was submitted that the copy of report was provided along with the copy of charge sheet as a part of departmental proceedings and not as a reply to the RTI Application filed under Section 6(1) of the RTI Act, 2005. It was further alleged that the crux of the inquiry report had been released by the Respondent Public Authority to the press but the same was denied to the Appellant. In support of his contention, the Appellant's representative referred to the decision of the Hon'ble High Court of Delhi in B.S. Mathur v. PIO in W.P. (C) 295 of 2011 dated 03.06.2011 as also in the matter of Sher Singh Rawat vs. Chief Information Commission & Ors. W.P. (C) 5220/2017 & CM No. 22184/2017 dated 29.08.2017, etc. In its reply, the Respondent submitted that as a Preliminary Inquiry against the Appellant was underway in November, 2017 hence the desired information was not provided u/s 8 (1) (h) of the RTI Act, 2005 and consistently maintained its earlier written submission placed before the Commission vide letter dated 16th April, 2019. In support, the Respondent also referred to the decision of the Commission in the matter of Shri Milap Choraria vs. Central Board of Direct Taxes in Complaint Number CIC/AT/C/2008/00025 dated 27th July, 2009. The Commission was in receipt of a written submission from the Appellant dated NIL wherein while reiterating the contents of the RTI application, reply/order of the CPIO/FAA, it was submitted that the information sought had been wrongly denied by the Respondent under Section 8 (1) (h) of the RTI Act, 2005. He further relied upon the decision of the Hon'ble High Court at New Delhi in the matter of Shobha Vijender vs. CIC, Sher Singh Rawat vs. CIC, B. S. Mathur vs. PIO, Bhagat Singh vs. CIC, as also the decision of the Commission in File No. CIC/SM/C/2011/000117/SG/13230 and the decision of the Hon'ble Supreme Court in the matter of Subramanian Swamy vs. Union of India, in a challenge to Sections 499 and 500 of the Indian Penal Code wherein it was held that "the reputation of an individual is a basic element of Article 21" etc. etc. Hence, it was inter-alia prayed to the Commission to direct the Respondent to supply the desired information as sought in the RTI application and to impose penalty upon the Respondents as also to grant compensation towards harassment caused to him due to Respondents and to pass orders instituting an Inquiry into the violations of the RTI Act by the Respondent Public Authority, etc. During the hearing, the Respondent handed over a copy of its written submission dated 17.05.2019 to the Commission wherein while re-iterating the response of the CPIO/ FAA, it was stated that the Preliminary Inquiry against the Appellant was underway in November, 2017 hence the desired information was not provided u/s 8 (1) (h) of the RTI Act, 2005. On being Page 2 of 7 queried about the justification for invoking Section 8 (1) (h) of the RTI Act, 2005, no precise response was offered.
With regard to providing a clear and cogent response to the Appellant, the Commission 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 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."
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."
With regard to denial of information under Section 8(1) (h) of the RTI Act, 2005, the Commission finds the following observation of the Hon'ble High Court Delhi in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 which is pertinent to this matter.
"13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1) (h) and other such provisions would become a haven for dodging demands for information."
Furthermore, the Hon'ble High Court of Delhi in B.S. Mathur v. PIO in W.P. (C) 295 of 2011 dated 03.06.2011 had held that :
"19. The question that arises for consideration has already been formulated in the Court's order dated 21st April 2011: Whether the disclosure of the information sought by the Petitioner to the extent not supplied to him yet would "impede the investigation" in Page 3 of 7 terms of Section 8(1)(h) RTI Act" The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8(1)(h) RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought "would impede the process of investigation." The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8(1)(h) RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would 'impede' the investigation...............
22. ...........The mere pendency of an investigation or inquiry is by itself not a sufficient justification for withholding information. It must be shown that the disclosure of the information sought would "impede" or even on a lesser threshold "hamper" or "interfere with" the investigation. This burden the Respondent has failed to discharge."
The Hon'ble High Court of Delhi in Adesh Kumar v. UOI and Ors. W.P. (C) 3542/ 2014 dated 16.12.2014 had held as under:
"10. A bare perusal of the order passed by the FAA also indicates that the aspect as to how the disclosure of information would impede prosecution has not been considered. Merely, citing that the information is exempted under Section 8(1)(h) of the Act would not absolve the public authority from discharging its onus as required to claim such exemption. Thus, neither the FAA nor the CIC has questioned the Public Authority as to how the disclosure of information would impede the prosecution."
The Commission also observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the Respondent present during the hearing nor the CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005. In this context, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case."
Moreover, as per the provisions of Section 7 (8) (i) of the RTI Act, 2005, where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection.
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:Page 4 of 7
" 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."Page 5 of 7
Moreover, 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 on the correctness of 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."
The Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. The Commission expressed its displeasure on the casual and callous approach adopted by the Respondent in responding to the RTI application. It was felt that the conduct of Respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
Page 6 of 7FINAL DECISION:
Considering the facts of the case and the submissions made by both the parties, it is evident that the copy of inquiry report as desired in the RTI application was not provided to the Appellant as a reply to the RTI application which was subsequently released as a part of departmental proceedings instituted against the Appellant. Thus there was a palpable denial of justice to the Appellant which was his fundamental right and therefore the Commission cautions the CPIO for his gross neglect and disrespect shown towards the implementation of the RTI Act, 2005.
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.
The Appeal stands 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: 22.05.2019
Copy to:
1. The Secretary, Ministry of Health & Family Welfare, 'A' Wing, Nirman Bhawan, New Delhi-110011
2. The President, National Board of Examinations, Ansari Nagar, Mahatama Gandhi Marg, Ring Road, New Delhi - 110029 Page 7 of 7