Central Information Commission
Ashutosh Gautam vs Central Board Of Indirect Taxes And ... on 19 July, 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/KY/A/2014/000593-BJ
Mr. Ashutosh Gautam
.... िशकायतकता /Complainant
VERSUS
बनाम
1. CPIO & Assistant Commissioner
Central Excise & Service Tax
Plot No. 67-76/B-1, Siddhi Sadan,
Naryan Upadhyan Marg
Bhavnagar - 364001
2. CPIO & Under Secretary
CBEC, Hudco Vishala Building
Bhikaji Cama Place, R. K. Puram
New Delhi - 110066
3. CPIO
Ministry of Finance, Department of Revenue
CBIC, North Block, New Delhi - 110001
... ितवादीगण /Respondent
Date of Hearing : 18.07.2019
Date of Decision : 19.07.2019
Date of RTI application 08.10.2013
(mentioned in
Complaint)
CPIO's response 31.12.2013
Date of the First Appeal 24.01.2014
(mentioned in
Complaint)
First Appellate Authority's response 05.02.2014
Date of diarised receipt of Complaint by the Commission Nil
Page 1 of 8
ORDER
FACTS:
The Complainant vide his RTI application sought information on 20 points regarding the transfer policy formulated for transfer and posting of officers of Central Excise and also the procedure prescribed for transfer of officers within and amongst these Commissionerates; name, designation and address of authority competent for the implementation of the Transfer Policy and issues related thereto.
The CPIO, vide its letter dated 31.12.2013 provided a point wise response to the Complainant. Dissatisfied by the response, the Complainant approached the FAA. The FAA, vide its order dated 05.02.2014 provided point wise clarification to the Complainant. Aggrieved with the response, the Complainant approached the Commission. The Commission, vide its order dated 06.01.2015 held as under:
"2. It is pertinent to mention here that despite of our due notice, neither Complainant nor the respondents appeared either in person or through someone, duly authorized by them before the Commission to press their cases. However, the Commission feels that complainant must have appeared, in such situations, to press his complaint before the Commission, after all, it is his complaint needs to be pursued specifically but complainant is also absent deliberately, despite of our due notice to him. Thus, it shows the intention of the complainant that he is not interested, at all, in pursuing his own case before the Commission.
3. In view of the position above and in the circumstances of the case, the Commission is of the considered view that no fruitful purpose would be served by proceeding in such cases. Thus, the Commission is of the considered view that it would be appropriate and even justified to close the case. Therefore, it is hereby closed."
Dissatisfied by the response, the Complainant approached the High Court of Delhi, which had vide its order dated 22.04.2019 in WP (C) No. 7449/2015 held as under:
"Having seen the impugned order and also notice of hearing, it is clear that the CIC has not gone into the merits of the complaint filed by the petitioner under Section 18(1) of the Right to Information Act, 2005.
If that be so, appropriate for the Commission is to decide the complaint filed by the petitioner under Section 18(1) of the Right to Information Act, 2005 in accordance with Page 2 of 8 law within a period of three months from today. The Commission shall inform the petitioner and the respondents the date and time when the petitioner / respondents as well as their representative may appear before it for hearing, at least 15 days in advance."
In compliance with the order, the DR (IC-BJ), vide its notice dated 25.06.2019 fixed 18.07.2019 as the date of hearing in the matter.
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Mr. Ashutosh Gautam;
Respondent: Ms. Shashi Pawar, DC, CBEC, Bhavnagar and Mr. Shiv Kumar Jha, Supdt., CBEC, Bhavnagar through VC; and Mr. Mohammad Ashif, US, CBIC, New Delhi, in person;
The Complainant reiterated the contents of the RTI application and at the outset stated that the instant Complaint ought to have been treated as a Second Appeal since in the prayer before the Commission he had also desired the disclosure of information. During the hearing, he primarily raised the issue of transfer of his RTI application dated 08.10.2013 by one Mr. Rajpal Singh (the erstwhile CPIO) on 08.11.2013 i.e. beyond the period stipulated under Section 6 (3) of the RTI Act, 2005. Besides the application was incorrectly transferred to the Chennai Zone which was not the custodian of information hence, the transfer of application was allegedly made malafidely. He also submitted that certified copies of the document sought in the RTI application was not provided by Mr. Rajpal Singh the then CPIO. As regards the response of the Respondent (Bhavnagar), he submitted that the RTI application was received by them on
02.12.2013 but replied on 31.12.2013 wherein a misleading response was provided. In point no. 08 of the reply, it was mentioned that the certified copy of the last 5 years establishment orders issued by their office would be available on payment of statutory fees which was in contravention to Section 7 (6) of the RTI Act, 2005 since no fees could be charged from the information seeker if the Public Authority failed to comply with the time limit specified under Section 7 (1) of the RTI Act, 2005. Moreover, he contested that a vague and misleading response was provided on the remaining points. In support of his contention, he also referred to the OM issued by the DoP&T in F. No. 12/31/2013-IR dated 11.02.2013 regarding "Timely intimation about payment of additional fee under RTI Act, 2005". He also submitted that the concerned CPIO failed to specify the exact fee details in its reply. The Complainant moreover raised objection against the presence of Mr. Mohammad Ashif, US during the hearing and submitted that his complaint was specifically filed against Mr. Rajpal Singh under Section 18 (1) of the RTI Act, 2005 and not against the Public Authority. He also submitted that the issues raised by him in the RTI application were generic in nature and in the larger public interest since the disclosure of information would have assisted in revealing alleged corrupt practices and irregularities within the Public Authority in respect of transfer of Customs and Excise officials. Furthermore, the FAA did not provide a reasoned order. In its reply, the Respondent (New Delhi) stated that Mr. Rajpal Singh the then CPIO had been transferred to another Ministry and that he was not aware about his present posting. However, he admitted that the application was transferred on 08.11.2013 inadvertently to Chennai Zone which was subsequently rectified and sent to Ahmedabad Zone under intimation to the Complainant vide their letter dated 16.04.2014. On being queried by the Commission regarding the delay in transfer of the application, no Page 3 of 8 satisfactory response was offered by the Respondent (New Delhi). The Respondent (Bhavnagar) reiterated the response dated 31.12.2013 and submitted that a point-wise reply was provided within the stipulated time period inter alia informing the Complainant that a certified copy of the last 05 years Establishment Orders issued by their office would be available on payment of statutory fees. The FAA order regarding calculating the amount of fee to be charged for the information sought in point 08 was also complied with by them and that inspection of documents was also provided to him which was not availed, till date. It was further submitted that the documents required were voluminous in nature spread across several files, the disclosure of which could disproportionately divert their meagre resources. The Complainant contested the aforementioned submission and submitted that the plea of disproportionate diversion of resources was not taken earlier and was an afterthought and that under Section 7 (9) of the RTI Act, 2005, the information seeker could only be requested to change the form in which information is desired and that it does not allow the Public Authority Officials to deny the information all together. On being queried by the Commission regarding suo moto disclosure of the generic queries raised by the Complainant in the RTI application regarding transfer policy of the Central Excise at the Head Quarters level, no satisfactory response was offered by the Respondent (New Delhi). The Respondent (CBIC, New Delhi) feigned ignorance about the contents of the RTI application and appeared to be unprepared to answer the queries raised during the hearing. The Complainant prayed for disclosure of information, initiation of penal / disciplinary action against the erring officials and award of compensation to him for the losses incurred and the mental agony suffered.
Having heard both the parties and on perusal of the available records the Commission at the outset observed that due diligence was not exercised at the time of replying to the RTI application. The issues raised by the Complainant were generic in nature and should have been answered at the Head Quarters level itself instead of transferring the application from one Public Authority to another and making the Complainant run from pillar to post to access the information.
The Commission also 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 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."
Moreover, it cannot be said that the transferring authority can be completely absolved of his duties and responsibilities as CPIO thereafter. In this context, a reference can be made to the Page 4 of 8 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, in Ministry Of Railways Through ... vs Girish Mittal on 12 September, 2014 W.P.(C) 6088/2014 & CM Nos.14799/2014, 14800/2014 & 14801/2014, the Hon'ble High Court of Delhi held as under:
"15. The plain language of Section 6(3) of the Act indicates that the public authority would transfer the application or such part of it to another public authority where the information sought is more closely connected with the functions of the other authority. The reliance placed by the learned counsel for the petitioner on the provisions of Section 6(3) of the Act is clearly misplaced in the facts and circumstances of the case. This is not a case where penalty has been imposed with respect to queries which have been referred to another public authority, but with respect to queries that were to be addressed by the public authority of which petitioner no. 2 is a Public Information Officer. Section 6(3) of the Act cannot be read to mean that the responsibility of a CPIO is only limited to forwarding the applications to different departments/offices. Forwarding an application by a public authority to another public authority is not the same as a Public Information Officer of a public authority arranging or sourcing information from within its own organisation. In the present case, undisputedly, certain information which was not provided to respondent would be available with the Railway Board and the CPIO was required to furnish the same. He cannot escape his responsibility to provide the information by simply stating that the queries were forwarded to other officials."
A reference can also be made to a recent decision of the High Court of Delhi in the matter of Shikha Bagga Vs. Public Information Officer, Directorate of Education and Another's, in W. P. (C) 4172/2017 dated 13.07.2017 wherein it was held as under:
"4. Clearly, transferring the petitioner's application to various schools is unsustainable. The PIO is required to provide all such information as sought for, subject to the exceptions as provided under the Act
5. In the circumstances, the writ petition is allowed and the impugned letters/orders dated 18.04.2017 and 22.04.2017 transferring the petitioner's application to various officers and various schools are set aside. It is directed that the petitioner's application be considered by respondent no.1 in accordance with law"Page 5 of 8
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."
A reference can also be made to the OM No. 12/31/2013-IR dated 11.02.2013 issued by the DoP&T in the context of "Timely intimation about payment of additional fee under RTI Act, 2005" the relevant extract of which is mentioned as under:
"2. The Central Information Commission in one of its orders has mentioned that while there cannot be any hard and fast rule about when exactly the initiation about the photocopying charges should be conveyed to the information seeker, it is implied in the prescribed time limit that the demand for t e photocopying charges must be made soon after the RTI application is received so that the information seeker has time to deposit the fees and receive the information within the prescribed thirty days period. If the information sought is not voluminous or is not dispersed over a large number of files, computation of the photocopying charges should not be a time in consuming task. As soon as the RTI application is received, the holder of the information should decide about how much information to disclose and then calculate the photocopying charges so that the CPIO can immediately write to the information seeker demanding such fees."
Furthermore, in this context a reference can also be made to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
Moreover, the Commission observed that the details sought regarding transfer policies within the Public Authority, authority competent to implement the transfer policy, time of issuance of transfer order etc. should have been suo moto disclosed by the Public Authority at the Head Quarters level for the ease and convenience of the stakeholders at large. The Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo-motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act.
The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
Page 6 of 8"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
Page 7 of 8DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above as also the observations made in the preceding paragraphs, the Commission while expressing its displeasure over the manner in which the said RTI application had been dealt with by the Respondent Public Authority, directs the Chairman, CBIC, New Delhi to depute an official of an appropriate seniority to examine the matter and fix accountability and responsibility on the delinquent official for the dereliction of duty and submit its report within a period of 30 days from the date of receipt of this order under intimation to the Complainant with a copy endorsed to the Commission as also collate and compile the information and suo moto disclose the same on its website. It would be appropriate if instructions were issued to all the Commissionerates to respect the provisions of the RTI Act, 2005 in its letter and spirit in consonance with the guidelines / circulars issued by DoP&T from time to time.
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
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
(Dy. Registrar) (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 19.07.2019
Copy to:-
1- Secretary, Department of Revenue, M/o Finance, North Block, New Delhi - 110001 2- The Chairman, CBIC, Department of Revenue, M/o Finance, North Block, New Delhi - 110001 Page 8 of 8