Central Information Commission
Abhay Kumar Pandey vs Ministry Of Health & Family Welfare on 12 September, 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/MH&FW/C/2019/136243-BJ
Mr. Abhay Kumar Pandey
.... िशकायतकता /Complainant
VERSUS
बनाम
CPIO & General Manager (Procurement)
Central Medical Services Society, 2nd Floor
Vishwa Yuvak Kendra, Teen Murti Marg
Chanakyapuri, New Delhi - 110021
... ितवादीगण /Respondent
Date of Hearing : 11.09.2019
Date of Decision : 12.09.2019
Date of filing of RTI application 09.05.2019
CPIO's response 25.06.2019
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 26.07.2019
ORDER
FACTS:
The Complainant vide his RTI application sought information regarding the certified copy of purchase/work order related to the tender number as mentioned in the RTI application (for the term named DBS Cards) or letter of acceptance for the same, etc. The CPIO, vide its letter dated 25.06.2019, denied disclosure of information under Section 8(1)(d) of the RTI Act, 2005. Dissatisfied by the response, the Complainant approached the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Mr. Abhay Kumar Pandey in person;
Respondent: Mr. R. C. Nayak, GM (Admn.);Page 1 of 6
The Complainant reiterated the contents of the RTI application and stated that the information sought was incorrectly denied by the Respondent u/s 8 (1) (d) of the RTI Act, 2005 without obtaining the consent of the Third Party in accordance with Section 11 of the RTI Act, 2005 within the period stipulated under the provisions of the Act. He also submitted that since the information was tender related it should have been suo motu disclosed on the website of the Public Authority. In its reply, the Respondent submitted that although the information was denied by the CPIO vide letter dated 25.06.2019, the FAA vide order dated 01.08.2019 provided the information with necessary enclosures. He tendered an unconditional apology for the denial of information on the part of the then CPIO and submitted that it has been their endeavor to provide information in accordance with the provisions of the RTI Act, 2005.
The Commission was in receipt of a written submission from the Respondent dated 04.09.2019 wherein while re-iterating the response of the CPIO, it was stated that the Complainant had also filed a First Appeal in the matter on 19.07.2019 which was replied on 01.08.2019 enclosing (1) the purchase order for supply of DBS Card to M/s Perkinelmer Pvt. Ltd. and (2) Purchase Order for supply of DBS Cards to M/s Surgeine Healthcare India Pvt. Ltd. The aforementioned reply was received by the applicant on 05.08.2019.
The Commission referred to the decision of the Hon'ble High Court of Nagpur in Sunflag Iron & Steel Company Ltd. V. State Information Commission Writ Petition No. 863/ 2012 dated 14.11.2014 wherein in the context of agreement entered into by the Public Authority with a Third Party, the following was held:
"The judgments relied on behalf of the petitioner do not assist the petitioner. As far as the facts of the present case are concerned, information sought by the respondent no.4 vide item no.5 of his application is concerning the Memorandum of Understanding to which the Government of Maharashtra is party and it cannot be said that the information is exclusively related to the petitioner. The directions issued by the Commission to provide the information to the respondent no.4 sought vide Item no.5 of his application cannot be faulted with."
The Commission also finds that the decision of the Hon'ble High Court of Delhi in Jamia Millia Islamia v. Ikramuddin WP (C) No. 5677/2011 dated 22.11.2011, is pertinent in this matter wherein it was observed that:
"The act of entering into an agreement with any other person/entity by a public authority would be a public activity, and as it would involve giving or taking of consideration, which would entail involvement of public funds, the agreement would also involve public interest. Every citizen is entitled to know on what terms the Agreement/settlement has been reached by the petitioner public authority with any other entity or individual."
The Commission also draws reference to the judgment of the Division bench of Jharkhand High Court, in State of Jharkhand v. Navin Kumar Sinhga and Anr., AIR 2008 Jharkhand 19 dated 08/08/2007, held as under:
"26........The question therefore that falls for consideration is as to whether disclosure of various documents submitted by the bidders is a trade secret or commercial confidence Page 2 of 6 or intellectual property. Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tenderor or a bidder is decided, then those tender documents cannot be secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of the Government.
27. ......... Since the tender process is completed and contract has been awarded, it will not influence the contract. Besides the above, a citizen has a right to know the genuineness of a document submitted by the tenderer in the matter of grant of tender for consultancy work or for any other work. As noticed above, the tender process is completed and the contract has been awarded, therefore, it will not influence the contract. In any view of the matter, the document in question cannot be treated as trade secret or commercial confidence. In our considered opinion a contract entered into by the public authority with a private person cannot be treated as confidential after completion of contract."
It is further noted that the aforementioned decision was challenged before the Hon'ble Supreme Court of India in SLP (C) No. 18030/2007 and dismissed on 5th October, 2007.
Furthermore, para 1.1.1 of O.M. No. No.1/6/2011-IR issued by the DoPT on issue of guidelines regarding implementation of suo motu disclosure under section 4 of RTI Act, 2005 states as under "1.1.1 Information relating to procurement made by Public Authorities including publication of notice/tender enquiries, corrigenda thereon, and details of bid awards detailing the name of the supplier of goods/services being procured or the works contracts entered or any such combination of these and the rate and total amount at which such procurement or works contract is to be done should be disclosed. All information disclosable as per Ministry of Finance, Department of Expenditure's O.M. No 10/1/2011-PPC dated 30th November, 2011 on Mandatory Publication of Tender Enquiries on the Central Public Procurement Portal and O.M. No. 10/3/2012- PPC dated 30th March, 2012 on Implementation of comprehensive end-to-end e-procurement should be disclosed under Section 4. At present the limit is fixed at Rs. 10.00 lakhs. In case of procurements made through DGS&D Rate Contracts or through Kendriya Bhandar/ NCCF, only award details need to be published. However information about procurement which fall within the purview of Section 8 of the RTI Act would be exempt."
The Commission further observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon'ble Page 3 of 6 High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was 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 in the case of J.P Agrawal v. Union of India- 2013(287) ELT25(Del.) held as under:
"7................The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
However, 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."Page 4 of 6
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 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.Page 5 of 6
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.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions of the higher Courts cited above, no further intervention of the Commission is required in the matter. The CPIO is however, cautioned to exercise due care in future to ensure that the information sought is furnished timely to the RTI applicant(s) as per provisions of the Act failing which penal proceedings under Section 20 may be initiated.
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: 12.09.2019 Page 6 of 6