Central Information Commission
R K Jain vs Income Tax Appellate Tribunal on 22 May, 2019
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No. CIC/ITAT/A/2017/131638
निकायत संख्या / Complaint No. CIC/ITAT/C/2017/121948
R K Jain ... अपीलकताग/Appellant
... निकायतकताग /Complainant
VERSUS
बनाम
CPIO, Income Tax Appellate ...प्रनतवािीगण /Respondents
Tribunal, Delhi
CPIO, Income Tax Appellate
Tribunal, Mumbai
ORDER
1. A Show Cause Notice was issued to CPIO, Income Tax Appellate Tribunal (ITAT), Delhi and CPIO, Income Tax Appellate Tribunal, Mumbai vide order dated 17.10.2018 for contravening the provisions of the RTI Act in denying information to the appellant/complainant. The respondent was also directed to refer to para nos. 18 to 23 of the above said order and submit his written explanation, within 15 days from the date of receipt of the order.
Hearing on 02.04.2019:
Page 1 of 122. The appellant/complainant Shri R.K. Jain and the respondent Shri Amit Shukla, Judicial Member and CPIO, ITAT, Delhi and Shri Mahavir Singh, Judicial Member and CPIO, ITAT, Mumbai were present in person.
3. The respondent submitted that the ITAT, Delhi does not have any separate bank account for depositing RTI fees received from the RTI applicants. All the IPOs received along with the RTI applications at New Delhi office were always in favour of 'Pay & Accounts Officer, Department of Legal Affairs, Ministry of Law & Justice, New Delhi' and are deposited in the bank account maintained by the Ministry of Law & Justice. As the appellant/complainant along with the RTI application dated 08.03.2017 had submitted the IPO favouring 'Accounts officer' only, he was advised and requested vide letter dated 15.03.2017 to give the postal order in complete name i.e. Pay & Accounts Officer, Department of Legal Affairs, Ministry of Law & Justice, New Delhi. The respondent, however, admitted that Shri N.K. Saini, the then CPIO should not have rejected the RTI application on this technical ground. He stated that the CPIOs at all Benches of ITAT are sitting members of the Tribunal, who are heavily burdened with huge judicial work of holding the hearings and thereafter studying the briefs for the next day, research and dictating the judgments and orders. Due to this heavy work load, the DoPT OM dated 05.12.2008 in this regard skipped the attention of the APIO and the then CPIO.
However, there was no malafide intention in rejecting the RTI application. He added that the ITAT has also organized an all India workshop on Right to Information at New Delhi on 14.12.2018 for all the CPIOs and the FAAs across India so that such errors will not be occurred in future. He vehemently pleaded that in view of the above said the Show Cause Notice issued against the respondent be dropped.
Page 2 of 124. The appellant/complainant submitted that the respondent vide letter dated 15.03.2017 had returned the IPO on the ground that it is in favour of 'Accounts Officer' and advised him to submit the IPO in favour of Pay & Accounts Officer, Department of Legal Affairs, Ministry of Law & Justice, New Delhi. Also, he was requested to describe the public interest involved in the RTI application. He stated that the grounds mentioned in the said reply dated 15.03.2017 are contrary to the statutory provisions of RTI Act. The stand taken by the CPIO is not in consonance with DoPT OM No. F. 10/9/2008-IR dated 5.12.2008 and also the non-compliance with the Full Bench decision of the Commission in File Nos.
CIC/BS/C/2013/000149/LS+CIC/BS/C/2013/000072/LS+CIC/LS/C/2010/000108/ LS dated 27.08.2013. The appellant further submitted that vide his letter dated 17.03.2017 he mentioned the above facts (along with the copies of relevant orders passed by the CIC) before the APIO, ITAT, New Delhi. However, the respondent vide letter dated 27.03.2017 again rejected his RTI application stating that the ITAT is a quasi-judicial body and not a public authority. The appellant contended that in view of the above-stated facts it is apparent that the respondent has deliberately rejected the RTI application giving unjustifiable reasons, which amounts to willful denial of the information sought for and hence, penal action as per the provisions of the RTI Act should be taken against the respondents.
Interim Decision:
5. The Commission, after hearing the submissions of both the parties and perusing the records, notes that, as per the respondent, Shri N.K. Saini, the then CPIO and Accountant Member, IT AT, New Delhi was responsible for rejecting the RTI application dated 08.03.2017. Therefore, in the interest of justice, an Page 3 of 12 opportunity is given to Shri N.K. Saini, the then CPIO and Accountant Member, IT AT, New Delhi for furnishing a written explanation to the Show Cause Notice. He is hereby directed to submit an explanation to the Commission, both by post and by uploading on http://dsscic.nic.in/online-link-paper-compliance/add, on or before 15.05.2019, explaining why action under Section 20(1) of the RTI Act should not be initiated against him. He is further directed to appear before the Commission on 16.05.2019 at 01.30 PM along with a copy of his written explanation. Shri Amit Shukla, Judicial Member and CPIO, ITAT, Delhi shall ensure that a copy of this order is served upon Shri N.K. Saini, the then CPIO and Accountant Member, ITAT, New Delhi.
Hearing on 16.05.2019:
6. The appellant/complainant Shri R.K. Jain and the respondent Shri N.K. Saini, the then CPIO and Judicial Member, ITAT, New Delhi (presently posted as Vice President, ITAT Chandigarh), Shri Amit Shukla, Judicial Member and CPIO, ITAT, Delhi and Shri Amit Khemka, Advocate for the respondent were present in person.
7. The respondent emphasized that as per Section 6(b) of the Right to Information Rules 2012, the fees under the Rules may be paid in the form of demand draft, banker's cheque or an IPO payable to the Account Officer of that public authority. However, there is no post of "Accounts Officer" in ITAT, New Delhi and since it is a part of the Ministry of Law and Justice, all IPOs received with the RTI applications have to be deposited in an account maintained by the Ministry in the name of Pay & Accounts Officer, Department of Legal Affairs, Ministry of Law & Justice, New Delhi. Hence, unless the IPO was properly addressed, it could not have been deposited with the appropriate authority. Hence, the CPIO under a bonafide Page 4 of 12 presumption that the said IPO cannot be encashed and acting in compliance with the RTI Rules 2012, returned the appellant's RTI application requesting him to submit a postal order in favour of Pay & Accounts Officer, Department of Legal Affairs, Ministry of Law & Justice, New Delhi so as to enable him to provide the information sought for. The respondent, therefore, had no malafide or deliberate intention whatsoever to deny information to the appellant. The respondent cited a number of Orders (CIC/SS/C/2011/000258 dated 27.06.2011, CIC/SG/A/2011/000631 dated 30.05.2011, CIC/WB/C/2009/ 000050 dated 17.02.2019), wherein the Commission has held that, in case, fee has not been paid in prescribed manner, the RTI application has to be rejected. He also admitted that initially he was not aware of DoPT's O.M. dated 05.12.2008. He, however, contended that the O.M. in question specifically states, "According to the rules the demand draft/banker's cheque /IPO should be payable to the Accounts Officer of the concerned public authority." Hence, the O.M. presumes the existence of an AO. However, in the instant case, the appellant was informed vide letter dated 27.03.2017 that there is no post of Accounts Officer in ITAT. He added that the Commission's decision in the case of Ragubir Singh vs. Directorate of Education had observed that, "In other words, no instrument shall be returned by any officer of the public authority on the ground that it has not been drawn in the name of a particular officer. So long as the instrument has been drawn in favour of the Accounts Officer, it shall be accepted in all circumstances". After perusal of the above observations, he inferred that the above-mentioned case was not applicable in the case of ITAT as the ITAT, Delhi does not possess any bank account and it has no post of Account Officer and hence, all money received by ITAT could only be deposited in the account of "The Pay & Accounts Officer, Department of Legal Affairs, Ministry of Law and Justice, New Delhi". Since the postal order was Page 5 of 12 not in the name of the Pay & Accounts Officer, his interpretation that the order was not applicable to ITAT was correct, bonafide and without any malice. Nonetheless, the respondent tendered his unconditional apology for the lapse, if any, and requested the Commission to condone the same. He also stated that the CPIO had every intention to provide information to the appellant had the IPO submitted by him been in order. Moreover, with respect to dismissal of the appellant's RTI application on the ground that the information sought for was held in a fiduciary capacity by the respondent authority, the respondent explained that the appellant had sought the "details of the RTI applications pending". Hence, the CPIO under a bonafide error of judgment in interpretation of law presumed that third-party information had been sought by the appellant. However, there was no mala fide intent to deny the information sought for. The respondent cited Para 61 of the judgment dated 01.06.2012 of the Hon'ble Delhi High Court in Registrar of Companies & Ors Vs. Dharmendra Kumar Garg & Ors [W.P.(C) 11271/2009] wherein the Court had observed:
"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 Page 6 of 12 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. 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 fulfill their statutory duties under the RTI Act with an independent mind and with objectivity."
8. In view of the above, the respondent submitted that the rejection of the RTI application was a bona fide error of judgment which was based on reasonable beliefs of the CPIO. He, however, assured that such error shall not be repeated in the future and requested the Commission to drop the Show Cause Notice against him.
9. The appellant submitted that there has been an in-built mala fide and deliberate intent on the part of the then CPIO in denial of the information sought. He reiterated the Full Bench decision of the Commission in File Nos. CIC/BS/C/2013/000149/LS+CIC/BS/C/2013/000072/LS+CIC/LS/C/2010/000108/ LS dated 27.08.2013 and stated that in his first appeal he had quoted the same for the knowledge of the CPIO. However, despite having brought it to the knowledge of the APIO vide letter dated 17.03.2017, his RTI application was rejected/dismissed, once again, on the ground that the IPO attached is not proper. He further pointed to Page 7 of 12 Para 4(iv) of Shri N.K. Saini's written submissions dated 11.05.2019 wherein the respondent admitted that he misinterpreted the Hon'ble CIC's decision in the case Raghubir Singh vs. Directorate of Education to be not applicable to the present case as all the money could only be deposited in the account of Pay & Accounts Officer, Department of Legal Affairs, Ministry of Law & Justice, New Delhi. The appellant submitted that the Postal Order in question was not crossed and thus, it was encashable at the counter of a local Post Office. Moreover, the RTI application was also rejected on the additional grounds that no public interest has been described by the applicant. However, nowhere in the RTI Act, he is bound to prove any public interest in order to seek disclosure of general information. Further, despite repeated requests, the name of the CPIO was deliberately suppressed to prevent him from filing any appeal. Thus, it shows that the CPIO had consciously and malafidely denied the information sought to the appellant and hence, penal action as per the provisions of the RTI Act should be taken against the then CPIO, Shri N.K. Saini.
Decision:
10. The Commission, after hearing the submissions of both the parties and perusing the records, notes that the appellant's RTI application was dismissed by the then CPIO on the ground that the IPO attached was in favour of 'Accounts Officer' and the appellant was advised to submit the IPO in favour of Pay & Accounts Officer, Department of Legal Affairs, Ministry of Law & Justice, New Delhi. The respondent affirmed that there was a bonafide error of judgment on the part of the then CPIO as he was not aware of the DoPT's O.M. dated 05.12.2008 as per which "Refusal to accept an application on the ground that the demand draft/banker's Page 8 of 12 cheque/IPO submitted by the applicant has been drawn in the name of the Accounts Officer may... result into imposition of penalty by the Central Information Commission on the concerned Central Public Information Officer under Section 20 of the Act." Further, as per the respondent, he misinterpreted the ratio of the judgment laid down by CIC in Raghubir Singh Vs. Directorate of Education on an erroneous presumption that since there was no 'Accounts Officer' of ITAT, New Delhi, the IPO attached with the RTI application cannot be encashed and hence, he returned the same with the request to file a proper IPO before the appropriate authority so as to further process the RTI application. The Commission observes that though the IPO was not crossed, it was payable to the Account Officer, ITAT. Further, since ITAT has no bank account as well as there is no post of Account Officer, the respondent had believed that the money could not have been credited or encashed. The Commission observes that in absence of any endorsement by the appellant (other than the name of the payee), it cannot be ruled out that the Post Office may not have permitted encashment of the IPO. The Commission also observes that misinterpretation of law cannot be taken as malafide or deliberate intent on the part of the CPIO to deny the information sought as he cannot be expected to know and apply the law and/or ratio decidendi of a judgment in each and every case, correctly. The decision of the Hon'ble Delhi High Court in Registrar of Companies & Ors vs. Dharemendra Kumar Garg & Ors (supra) is squarely applicable to the present case. Further, no penalty can be imposed for wrong judgment. Moreover, in a decision in the matter of Kripa Shanker V. Central Information Commission- judgment dated 18.09.2017 in W. P. (C) No. 8315/ 2017, the High Court of Delhi held that:
Page 9 of 12"....13... Indisputably, merely because the view taken by a PIO is not correct, it would not lead to an inference that he is liable to penalty. There may be cases where the PIO is of the view that the information sought is exempt from disclosure under Section 8 of the Act. If this view is subsequently found to be incorrect, it would not necessarily mean that he would be subjected to penalty. The question of imposition of penalty depends on whether the conduct of PIO is reasonable and whether there is any bonafide justification for denial of information; penalty is levied only if it is found that the information was denied without reasonable cause."
11. The Commission also takes note of the respondent's submissions that he had sought the assistance of the APIO in preparation and issuance of letter. He, however, admitted his mistake of asking the APIO to issue a letter on his behalf. He expressed his regret for the same and tendered his unconditional apology for this lapse and requested the Commission to condone the same. The respondent further stated that he in bonafide judgement believed that the information sought was with ITAT in a fiduciary capacity. Hence, he had asked the appellant to clarify the public interest involved in the RTI application so that, in case proper fee was provided, information could be provided to him. The Commission observes that the above-mentioned lapse just reflects the respondent's casual approach to RTI applications and lack of application of mind, perhaps, because of burden of work. However, it cannot be said that the CPIO had acted consciously and deliberately with malafide intention to provide incorrect or misleading information to the appellant. The Commission observes that in WP(C) 3114/2007 Bhagat Singh Vs. CIC &Anrs. Hon'ble Delhi High Court vide order dated 03.12.2007 held that Page 10 of 12 "......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 the 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....."
12. In view of the above ratio, in the absence of any malafide intention, it would not be appropriate to initiate any action for imposition of penalty on the CPIO. In view of this, the Show Cause Notice issued to Shri N.K. Saini, the then CPIO and Judicial Member, ITAT, New Delhi is hereby dropped. Nonetheless, the Commission finds that the rejection of the appellant's RTI application solely on the ground of improper IPO attached by him is uncalled for and non-adherence of well- established principles of law of right to seek information. The Commission, therefore, would like to counsel Shri N.K. Saini, the then CPIO and Judicial Member, ITAT, New Delhi to be more careful in future so that such lapses do not recur and that the provisions of the RTI Act are implemented in letter and spirit.
13. Copy of the decision be provided free of cost to the parties.
Sd/-
Sudhir Bhargava (सुधीर भागगव) Chief Information Commissioner (मुख्य सूचना आयुक्त) दिनांक / Date 21.05.2019 Page 11 of 12 Authenticated true copy (अनभप्रमानणत सत्यानपत प्रनत) S. S. Rohilla (एस. एस. रोनिल्ला) Dy. Registrar (उप-पंजीयक) 011-26186535 / [email protected] Addresses of the parties:
1. The Central Public Information Officer (CPIO), Income Tax Appellate Tribunal 6, 10 & 11 Floor, Lok Nayak Bhawan, Khan Market, New Delhi- 110003.
2. Shri R K Jain Page 12 of 12