Central Information Commission
Amresh Chandra Mathur vs Department Of Health & Family Welfare on 10 April, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
िशकायत सं या / Complaint No.:- CIC/MOHFW/C/2018/627994-BJ
Mr. Amresh Chandra Mathur
.... िशकायतकता /Complainant
VERSUS
बनाम
1. CPIO
Directorate General of Health Services
Office of DCG (I), RTI Cell, FDA Bhawan
Kotla Marg, ITO, Mandi House
New Delhi - 110002
2. CPIO (Administrative Matters)
O/o Dy. Director Administration (Drugs), CDSCO (HQ)
FDA Bhawan, Kotla Road
New Delhi - 110002
... ितवादीगण /Respondent
Date of Hearing : 03.04.2019
Date of Decision : 09.04.2019
Date of filing of RTI application 08.07.2018
CPIO's response 06.08.2018
Date of filing the First appeal Not on Record
First Appellate Authority's response Not on Record
Date of diarised receipt of Complaint by the Commission Nil
ORDER
FACTS:
The Complainant vide his RTI application sought information on 09 points regarding the copy of CDSCO letter to CIC for registering CDSCO (HQ) / Delhi as a public authority for registration with CIC, if not available, then reasons thereof; name(s) and designation of the CPIOs in CDSCO with their place of posting in the year 2015 and 2016, etc. The CPIO, vide its letter dated 06.08.2018 provided a point-wise response to the Complainant wherein for points 01 to 09, the application was transferred to the CPIO, Deputy Director Administration, CDSCO (HQ), FDA, New Delhi and for point 05, stated that the Technical Division of CDSCO had received 13 CIC hearing notices in 2015 and 2016 and the same were Page 1 of 6 available in public domain and CIC. Dissatisfied with the response, the Complainant approached the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Mr. Amresh Chandra Mathur along with Mr. Venkatesh Nayak; Respondent: Mr. Jayant Kumar, CPIO & DDC (I), DGHS, Mr. Abhishek Chawardol, DI, DGHS, Mr. S. Kulshrestha, ADC (I) and Mr. R. K. Singh, CDSCO;
The Complainant reiterated the contents of the RTI application and stated that wrong and misleading information was provided by the CPIO. In its reply, the Respondent submitted that the RTI application was transferred to the CPIO, Deputy Director Administration, CDSCO (HQ), New Delhi as it pertained to CDSCO, Administrative Division on 10.07.2018. With regard to point no. 05, it was also informed that the CDSCO Division had received about 13 CIC hearing notices in the year 2015 and 2016, and the same were available in public domain as also in the website of CIC. Subsequently, the CDSCO, Administrative Division vide their letter 07.08.2018 provided a point-wise response to the Complainant wherein on some points which was related to Zonal offices / Laboratories under CDSCO was transferred to the concerned office. The Complainant while contesting the above averments of the Respondent, submitted that even after several transfers of his RTI application, no satisfactory response was provided, till date. The Respondent persistently maintained its earlier stance and submitted that the hearing notice were already available in public domain. The Complainant however submitted that the access to the notices available in the public domain should have been clearly spelt out as he did not find it on the referred website / link. On being queried by the Commission, whether he still desired such information as requested in the RTI application, the Complainant pointed out serial no. 05, 06, 07 & 08 of the application and desired information on the above referred points. The Complainant also referred to its earlier decision of the Commission in File No. CIC/SA/A/2015/000319-YA dated 31.07.2017-Final.The Respondent however submitted that they were willing to share the information which was available with them.
During the hearing, the Respondent handed over a copy of the written submission dated 03.04.2019 wherein while referring to several correspondences taken place between the Complainant and the Department as also the regulatory functions performed by various office of CDSCO and functions at the Airport and Seaport Offices, it was submitted that the Applicant had filed 2nd Appeal directly to CIC without exhausting the channel of 1st Appeal which was to be filed before the First Appellate Authority. It was further submitted that all the requisite information / documents in respect of RTI request had been provided to the Complainant and the CPIO had acted reasonably and diligently with bonafide intent and did not have any intention to hide the information as sought by the Applicant.
With regard to providing a clear and cogent response to the Complainant, 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 Page 2 of 6 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."
The Hon'ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed ".....that a CPIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information. The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow".
With regard to point no. 07 of the RTI application, the Commission referred to the decision of the Hon'ble Supreme Court of India in the matter of Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam, Civil Appeal No. 22 of 2009 dated 31.08.2017 had held as under:
"5) The information was sought on 15 parameters with regard to various aspects of transfers of clerical staff and staff of the Bank with regard to individual employees.
This information was in relation to the personal details of individual employee such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders etc. etc
11) Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order and dismiss the application submitted by the 1st respondent under Section 6 of the Act.
12) In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794, 5 it may not be necessary to re-examine any legal issue urged in this appeal.
Page 3 of 614) In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by respondent No.1 of individual employees working in the Bank was personal in nature; secondly, it was exempted from being disclosed under Section 8(j) of the Act and lastly, neither respondent No.1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee and nor any finding was recorded by the Central Information Commission and the High Court as to the involvement of any larger public interest in supplying such information to respondent No.1."
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 Page 4 of 6 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 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 Complainant could not substantiate his claims regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause.
Page 5 of 6DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission directs the Respondent to re-ascertain the availability of records and provide information on point nos. 05, 06 and 08 to the Complainant as sought in the RTI application within a period of 15 days from the date of receipt of this order as also to forward a copy of their written submission sent to the Commission to the Complainant also.
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 Complaint stands disposed accordingly.
Bimal Julka (िबमल जु का) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) K.L. Das (के .एल.दास) Dy. Registrar (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 09.04.2019 Page 6 of 6