Central Information Commission
Lalitendu Samantaray vs Central Public Works Department, ... on 7 August, 2020
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/CPWEH/A/2017/128788-BJ-Penalty
Mr. Lalitendu Samantaray
....अपीलकता/Appellant
VERSUS
बनाम
1. CPIO
Executive Engineer (RTI)
Directorate General
CPWD, Nirman Bhawan
New Delhi - 110011
2. CPIO
Executive Engineer
Office of the Chief Engineer (Eastern Zone - V)
Central Public Works Department
Nirman Bhawan, Plot No. 188/623-624, Pokhariput
Bhubaneswar - 751020
3. Mr. Satyajit Baran Dey,
Executive Engineer, Kolkata Central Division-VIII,
CPWD, 'DF' Block, CGO Complex, Salt Lake,
Kolkata, West Bengal-700064
... ितवादीगण /Respondent
Date of Hearing : 26.02.2019
Date of Decision : 26.02.2019
Date of RTI application 30.12.2016
CPIO's response 20.01.2017
Date of the First Appeal 02.03.2017
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 02.05.2017
Page 1 of 8
ORDER
FACTS:
The Appellant vide his RTI application sought information on 08 points regarding action taken as per Office Order dated 15.04.2016 of CE(EZ)-V, CPWD, Bhubaneswar under signature of EE(P), Bhubaneswar Central Circle, CPWD, Bhubaneswar along with the date of Relieve and Joining through CPWD, PIMs of every person reflected in the Order and issues related thereto.
The CPIO, Executive Engineer (RTI), New Delhi, vide its letter dated 20.01.2017 transferred the RTI application to the concerned CPIO, Office of the Chief Engineer (Eastern Zone - V), Bhubaneswar, with the request to furnish information directly to the Appellant. Dissatisfied due to non-receipt of any response from the concerned CPIO, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Mr. H. Pandey, EE through VC;
The Appellant remained absent during the hearing. The Respondent present during the hearing while tendering unconditional apology for the delay in replying to the RTI application, submitted that after receiving the notice of hearing from the Commission, a consolidated reply dated 20.02.2019 was forwarded to the Appellant, wherein point-wise response as available on record had been furnished to him. As regards delay in furnishing the response to the RTI, it was informed that Mr. Satyajit Baran Dey, the then Executive Engineer/CPIO, was in-charge at the time of receipt of the application. The Commission was also in receipt of a written submission from the Respondent, Office of the Chief Engineer (Eastern Zone-V), CPWD, Bhubaneswar dated 20.02.2019 wherein the RTI queries of the Applicant were responded point-wise.
The Commission felt that correct and timely response was the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this context, the Commission referred to the decision of the Hon'ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been 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 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 Delhi High Court decision in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 it has held that:
Page 2 of 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."
A reference was drawn to the decision of the Hon'ble Delhi High Court in the case of J.P Agrawal v. Union of India-2013(287) ELT25(Del.) wherein it was held as under:
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."
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, 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.
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 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.
The Appellant was not present to contest the submissions of the Respondent or to substantiate his claims further.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent, it is evident that no reply had been provided by the then CPIO, Mr. Satyajit Baran Dey, within the stipulated time period, in the matter, which is a grave violation of the provisions of the RTI Act, 2005. The Commission instructs the then CPIO, Mr. Satyajit Baran Dey, to show-cause why action should not be taken under the provisions of the Act for this misconduct and negligence and also directs to explain why penal action of Rs. 25,000/- should not be taken as per Section 20(1) of the RTI Act, 2005, within 15 days from the date of receipt of this order.Page 3 of 8
It is appalling to note that the FAA had also not acted in accordance with the provisions of the RTI Act, 2005 and therefore is advised to be alert and cautious in the implementation of the RTI Act, 2005 with due diligence and care.
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 with the above direction.
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: 26.02.2019
Copy to:
1. Mr. R. K. Shami, Chief Engineer, Office of the Chief Engineer, CPWD, Nirman Bhawan, 1st Floor, Pokhariput Bhubaneswar - 751020
2. Mr. Ramesh Chandra Mishra, Superintending Engineer/First Appellate Authority, Bhubaneswar Central Circle, CPWD, Nirman Bhawan, 1st Floor, Pokhariput Bhubaneswar - 751020
3. Chief Engineer, Kolkata Central Division-VIII, CPWD, 'DF' Block, CGO Complex, Salt Lake, Kolkata, West Bengal-700064
4. Mr. Satyajit Baran Dey, Executive Engineer, Kolkata Central Division-VIII, CPWD, 'DF' Block, CGO Complex, Salt Lake, Kolkata, West Bengal-700064 Note: Subsequently, the Deputy Registrar vide its notice dated 16.07.2020, fixed 06.08.2020 as the next date of hearing.Page 4 of 8
HEARING:
Facts emerging during the show cause hearing on 06.08.2020: The following were present:
Appellant: Absent;
Respondent: Mr. Satyajit Baran Dey, EE (Civil) through VC;
The Appellant remained absent during the hearing. Mr. S. K. Das, Network Engineer NIC studio at Bhubaneswar, confirmed the absence of the Appellant. In its reply, the Respondent explained the reasons for the delay in furnishing the information sought by the Appellant and further relied on its show cause reply dated 22.03.2019.
The Commission was in receipt of a show cause reply from the Respondent Mr. Satyajit Baran Dey, Executive Engineer (Civil), Kolkata, dated 22.03.2019 wherein he submitted that he as the CPIO received the RTI Application dated 30.12.2016 of Sh Lalitendu Samantaray but failed to furnish reply to the Applicant and for the same he tendered unconditional apology. He further submitted that he received the Application on 03.03.2017 and marked the same immediately (Annexure-A) to the concerned Officer i.e. AAO in the said office under Sec. 5(4) for processing the same. The Application was diarized on 06.03.2017 and apparently given to the concerned officer. The information was thereafter not brought before him by the concerned officer who may be treated deemed PIO under Sec. 5(5). Consequently, he missed to furnish the reply. He further submitted that it was his first such mistake and he realized now that he should have had a special mechanism to follow up the RTI Applications and to remind the assisting officers/dealing clerks/information holding officials for bringing the information before him. For not having such mechanism, he forgot about the application and missed to furnish reply. It was absolutely not deliberate on his part and that he was never trained as a CPIO. If any training was provided to him, possibly he would be informed of and follow such a mechanism and pursue with the assisting officials for making the timely reply. He learnt from his mistake and, if the duty of CPIO is given to him again, he shall maintain such a mechanism and remain extremely vigilant. He further submitted that at that point of time, he was also holding the charge of Ex. Engineer, Bhubaneswar Central Division-II, CPWD, Bhubaneswar with a heavy workload. Two full time charges with formidable work load might have enforced the error of forgetting the application for which he honestly repents now. Furthermore, he submitted that he has full respect to the Right to Information Act as well as to the Commission and all his mistakes was unintentional and to some extent, was enforced by other conditions for which he once again apologized and requested to condone his act of omissions relieving him of any disciplinary action and pecuniary penalty.
During the hearing, the CPIO admitted that due to his negligence, the RTI application was not responded within the prescribed time limit and cited various administrative lacunae and constraints for implementation of the RTI Act, 2005 within the Respondent Public Authority which require urgent deliberation and rectification. The Commission was appalled to learn that there was complete negligence and laxity in the Public Authority in dealing with the RTI matters. It was abundantly clear that such matters were being ignored and set aside without application of mind which reflected disrespect towards the RTI Act, 2005 itself. 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. The Commission referred to the decision of Page 5 of 8 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 wherein it was held as under:
"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..........."
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 further referred to the decision of 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, wherein it was held as under:
"9................................That being so, the legislative intent was that the penal provisions are to be implemented or enforced only against the CPIO and not against any other authority like the senior ranking officer or the Appellate Authority who decides the appeal under Section 19(1). If this was not the legislative intention, the words appearing in Sections 19(1) and (2) would have been differently worded and the construction of the statutory provision would have been entirely different. If the argument canvassed by the petitioner was to be accepted then by that interpretation, we would be expanding the meaning of a CPIO and we would be adding something more into the definition of CPIO than the one as was conceived by the legislature. This is not permissible under law and when the CPIO is only indicated to be officer against whom penal action can be taken under Section 20, we cannot read into the said statutory provision anything more by supplying words or meaning which would enlarge the scope of the penal provisions under Section 20. 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 Appellate Authority is not the custodian of the information or the document. It is only a statutory authority to take a decision on an appeal with regard the tenability or otherwise of the action of the CPIO and, therefore, there is a conscious omission in making the Appellate Authority liable for a penal action under Section 20 of the RTI Act and if that be the scheme of the Act and the legislative intention, we see no error in the order passed by the learned writ Court warranting reconsideration."Page 6 of 8
The Hon'ble High Court of Karnataka in the matter of Sri G Basavaraju v. Smt Arundathi & Anr.', CCC. No. 525 of 2008 (Civil) order dated 27.01.2009 had held as under:
"9. Section 20 of the RTI Act provides for penalties. It confers powers on the Commission on the basis of which it can enforce its orders.
The powers of the Commission to entertain and decide the Complaints, necessarily shows that, the Commission has the necessary power to adjudicate the grievances and decide the matters brought before it, in terms of the provisions of Section 20 of the Act. The Legislative will in incorporating Section 20 in the RTI Act, conferring power on the Commission to impose the penalties, by necessary implication is to enable the Commission to do everything that is indispensible for the purpose of carrying out the purposes in view contemplated under the Act."
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent and in light of the decisions of the Hon'ble Superior Courts, the Commission finds that as per the provisions of Section 20(1) of the RTI Act, 2005, this is a fit case for levying a penalty of Rs. 5,000/- on Mr. Satyajit Baran Dey, EE (Civil) and CPIO for not providing the information to the Appellant within the stipulated time frame as admitted by him during the hearing and for which no cogent explanation was offered.
The Chief Engineer (W&TLQA), CPWD, Nizam Palace, Kolkata is directed to recover the amount of Rs 5,000/- from the salary of Mr. Satyajit Baran Dey, EE (Civil) and CPIO on receipt of this order and remit the same by way of Demand draft drawn in favour of "Pay and Accounts Officer, CAT" payable at New Delhi and send the same to Dy. Registrar, (CR-II) email:
[email protected], Room No. 106, First Floor, Central Information Commission, CIC Bhavan, Baba Gangnath Marg, Munirka, New Delhi-110067 within a period of 30 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country.
Furthermore, it is evident that the implementation of the provisions of the RTI Act, 2005 is far from satisfactory. Thus, 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.
(Bimal Julka) (िबमल जु का) (Chief Information Commissioner) (मु य सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) K.L. Das (के .एल.दास) Dy. Registrar (उप-पंजीयक) 011-26186535/ [email protected] दनांक / Date: 07.08.2020 Page 7 of 8 Copy to:-
1. Director General (CPWD), Room No. 101, A Wing, Nirman Bhawan, New Delhi - 110011
2. Mr. D. Roychoudhury Chief Engineer (W&TLQA), CPWD, Nizam Palace, 5th Floor, 234/4, AJC Bose Road, Kolkata, West Bengal-20
3. Mr. Satyajit Baran Dey, Executive Engineer (Civil), Kolkata CPWD, Nizam Palace, 5th Floor, 234/4, AJC Bose Road, Kolkata, West Bengal-20
4. DR to CR-II, Central Information Commission, CIC Bhavan, Baba Gangnath Marg, Munirka, New Delhi-110067 Page 8 of 8