Central Information Commission
Supriya Kumari vs Department Of Scientific & Industrial ... on 13 September, 2018
CENTRAL INFORMATION COMMISSION
(Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067)
Before Prof. M. SridharAcharyulu (Madabhushi Sridhar), CIC
Second Appeal No.: CIC/DOSIR/A/2018/104889
Smt. Supriya Kumari Appellant
Versus
CPIO, DOSIR, New Delhi Respondent
Order Sheet: RTI filed on 08.11.2017, CPIO reply - Nil, FAO on 05.12.2017, Second appeal filed on
19.01.2018, Hearing on 10.09.2018;
Proceedings on 01.05.2018: Appellant represented by Mr. Madanjit Kumar, Public Authority
represented by CPIO. Mr. Vimal Kumar, Scientist and CPIO, Mr. B. N. Sarkar and Dr. Anoop Singh:
Directions and show cause issued.
Proceedings on 10.09.2018: Appellant represented by her husband Madanjit Kumar at CIC, Public
Authority represented by CPIO. Mr. Vimal Kumar Varun, B N Sarkar, Scientist G, & Dr. Anoop Singh,
Scientist at CIC.
Date of Decision - 13.09.2018: Penalty imposed.
ORDER
FACTS:
1. The appellant vide her RTI application dated 08.11.2017, wrote: (i) In the month of March 2017, the appellant had given a representation to the Hon'ble Minister Shri Y.S. Chaudhary regarding the transfer of her husbandand, financial and administrative irregularities of CEL. On the instructions of the Minister, his PS Shri Balaji, wrote a detailed note to the secretary, DSIR. She wanted copy of the note with remarks of DSIR officials, (ii) In the month of April 2017, DSIR issued instruction to CEL to transfer appellant's husband from Chandigarh, She sought copy of the same. (iii) Sh. B N Sarkar issued two OMs No. DSIR/CEL/15(40)/2013-
1a(Part) dared 14/7/2017 and 27/9/2017 to CEL, she wanted to know whether CEL gave any reply to these OMs, if yes, sought copies of the same, (iv) On 20thJuly 2017, Dr. Anoop Singh of DSIR a letter no. DSIR/CEL/15(40)/2016-17 to Mr. M S Verma of CEL to provide documents and information before the Fact Finding [Type text] Page 1 Committee under the chairmanship of Sh. Brijeshwar Singh, IAS. She wanted the copy of the complete report of Fact Finding Committee, and actions taken (if any) by the DSIR (v) DSIR have issued an OM No. DSIR/PSU/2017-18 dated 30th May 2017 for the compliance of different OMs of DOPT and DPE regarding the posting of Employees who have Disabled Child, she wanted the copy of approved Note-Sheet for issuance of this OM." The CPIO on dated nil, gave a point wise reply, wherein he denied the information on point no. 4, under Section 8 (1)(i) of the RTI Act. Not satisfied with the CPIO's reply, the appellant filed first appeal on 08.11.2017, wherein the FAA directed on 05.12.2017 that information to be provided to the appellant within 30 days free of cost from the date of decision. FAA also directed that if the respondent has valid reason vetted by the competent authority in not providing information that should be stated to the appellant within ten working days. Thereafter, Mr B.N. Sarkar, deemed CPIO, vide email dated 22.12.2017 replied that the Fact Finding Committee report, sought by the appellant forms part of the confidential communication, which has taken place between DSIR and its legal advisor/counsel and therefore, the same cannot be provided under the RTI Act. Mr. Sarkar further added that information sought is likely to prejudicially affect the scientific and economic interest of DSIR, and also contains the personal information of third parties and disclosure of the same would cause unwarranted invasion of their privacy, and therefore, the above information cannot be given as it is exempted under section 8 (1)(a), (b) & (j) of the RTI Act.
2. The appellant filed second appeal contending that the Fact Finding Committee (FFC) was constituted on the instructions of Honorable MoS (S&T and ES) Shri Y.S. Chowdary asking to submit the report to him, hence, to say that the Fact Finding Committee (FFC) was constituted on the instructions of Cabinet Secretariat, was false. He did not agree with the contention of deemed CPIO that the report of FFC forms part the Cabinet papers which could be denied under section 8(1)(i) of RTI Act 2005, saying the report was not cabinet paper at all. After order of FAA in the present matter, the deemed CPIO, Mr. B. N. Sarkar has invoked other exceptions under section 8(l) (b) & (j), without any justification.
[Type text] Page 2 Contentions:
3. The appellant was represented by her husband Mr. Maranjit Kumar, who submitted during hearing that the CPIO had wrongly denied the information citing Section 8 (1)(i) of the RTI Act. The report of Fact Finding Committee, cannot be considered as a Cabinet paper, as it was no placed before the Union Cabinet to discuss or decide. Admittedly, the Fact Finding Committee has been constituted on the instructions of the Minister and that Fact Finding Committee submitted its report to the Cabinet Secretariat, but as per the definition of 'Information' under section 2(f) of the RTI ACT, all papers / reports etc. of all departments have to be shared with the Citizen seeking that report, unless they are specifically exempt from disclosure by any exception clause, with proper justification. He further added that the information sought by his wife-appellant was related to administrative irregularities and misappropriation of public money by some of the officials of Central Electronics Limited (CEL), and allegations were based on CAG Audit Para IR 2014-16 and also an article published in the magazine 'Telecom Live', a serious matter of corruption which cannot be brushed aside by simple denial of RTI application which clearly shows that some persons at DSIR are trying to hide the corrupt activities of the Central Electronics Limited (CEL) and promoting corruption. She said "being a responsible citizen of India, I have all right to know the use &misuse of public money and action taken on".
4. The DPIO Mr. B. N. Sarkar from Public authority submitted that the Department has provided information on the queries no. 1,2,3 and 5 vide OM of even number dated November 04,2017, but the information for the query 4 for complete report of Fact Finding Committee was denied under Section 8(1)(i) of RTI act 2005. In another similar RTI of Shri Astitva (RTI-Registration Number:
DOSIR/R/2017/50085), CIC vide its order No. C1C/DOSIR/A/2018 /100462 dated 2O/O2/2O18 has ordered to separate the paragraphs claimed by the counsel of CEL as commercial confidence, but provide detailed conclusions of the Fact Finding Committee on each allegation along with the "executive summary'', after duly certifying. In compliance of the order, they provided the pages of Fact Finding Committee but after blocking certain paragraphs. The officer reiterated that report [Type text] Page 3 is part of the confidential communication, between the DSIR and its legal advisor/counsel and therefore. He also added that information sought is likely to prejudice the interests of scientific and economic interest of DSIR, contains personal information of third parties and the disclosure of the same cause unwarranted invasion of privacy of the same, etc.
5. Though Mr. V. K. Varun was the CPIO in this case, the whole information and records were controlled, some were given and full Report was denied by Mr. B. N. Sarkar. After receiving the RTI application the CPIO asked Mr. B.N. Sarkar to provide information sought. Though, he gave information on all other points, Mr. Sarkar denied on point no. 4, i.e. First Mr. Sarkar claimed only one defense under Section 8 (1)(i) of the RTI Act. Then FAA ordered the CPIO to provide the copy of report. Then again CPIO Mr. Vimal Kumar Varun wrote to Mr. B.N. Sarkar to provide the information. Then, Mr. B. N. Sarkar mentioned other clauses of exemptions under Section 8 (1)(i), (a), (b), & (j) of the RTI Act which he did not earlier mention, either in response to RTI request or before the First Appellate Authority. When the appellant has filed second appeal and hearing was scheduled on 01.05.2018. Mr. B. N. Sarkar furnished copy of report on the allegations levelled against Dr. Nalin Shinghal, CMD, Central Electronics Limited, which were published "TelecomLIVE" magazine. But appellant found several portions of Report were blocked. Each copy of page of Report given was signed by Mr. Sarkar. On 20.04.2018, during the hearing, the appellant demanded complete report without any censoring.
6. Mr. Sarkar did not make any effort to justify that Report was a cabinet paper, nor could he justify and convince the Commission that copy report could not be given under any other clause. He totally failed to explain how the Fact Finding committee report will fall under category of exemption under Section 8(1)(b) or (i) or (j) of the RTI Act. Thereafter, Mr. Sarkar stated that information sought is commercial confidence and exempted under section 8 (1)(d) of the RTI Act, which also was not claimed earlier in any of his responses.
7. The Commission finds that Mr. Sarkar was invoking exemption clauses one after the other without applying his mind at all. Upon perusal of the records, [Type text] Page 4 correspondence of CPIO to Mr. Sarkar, appellant's contention, FAA's order, oral contention of CPIO and Mr. Sarkar, the Commission finds that Mr. Sarkar does not have any inclination to give the complete copy of Fact Finding Committee Report, and he went on harassing the appellant by raising one or the other excuses. The Commission gave repeatedly several opportunities to reconcile, study the Report, try to apply mind, bring justification for any denial, separate the core point of commercial confidence if any, explain the same to the Commission, etc., but simply Mr. Sarkar went on consuming the time but tried to hide the complete report.
8. On the directions of the Commission Mr. Sarkar produced the report before the Commission. The Commission studied the entire report and found nothing that can be considered as commercially confidential information that could be hidden from the appellant. Mr. Sarkar is the officer who issued two OMs, and response about which the appellant was seeking. He has blocked names, dates and several paragraphs pertaining to allegations, without giving any reason to the appellant, First appellate authority, to his CPIO and to the Commission. He did not care to heed the advice of CPIO, Mr. Varun. He did not even bother to comply with the orders of the FAA. The appellant's contention that Mr. Sarkar is deeply interested in keeping certain parts of the report as secret, appear to have some merits. Mr. Sarkar's changing contentions frequently proved that point. A Fact Finding Committee report cannot be considered as secret or confidential etc. generally. This report can never be termed as confidential and be denied.
9. However, as an abundant caution, the Commission likes to give another opportunity to public authority to furnish complete Report after duly verifying again whether any commercially confidential. Hence the Commission directs the First Appellate Authority and the CPIO together, to study the entire report, segregate the paragraph if they are satisfied that it might attract any other exemption and provide all the pages of complete Report, giving reasons for holding why a particular paragraph was hidden, but provide all other parts in form of certified copies, within 21 days from the date of receipt of this Order.
10. The Commission's order dated 13.08.2018:
10. The Commission directs Mr B N Sarkar, deemed CPIO, to show-cause why maximum penalty should not be imposed against him for wrongful denial of complete [Type text] Page 5 Report copy as explained above, before 30th August, 2018 and the case is posted for compliance and penal proceedings on 10th September 2018 at 3 pm. All the explanations must reach to this Commission on or before. 30.08.2018.
Decision:
11. In response to the show-cause notice issued, Mr. B N Sarkar, Scientist-G and in charge CEL & NDRC vide letter dated 30.08.2018, submitted to the Commission as under:-
1) The copy of Fact Finding committee (FFC) report requested through RTI query No. 4has been provided to the appellant vide OM of even number dated 29-08- 2018.
2) Department vide our MM of even number dated November 14, 2017 had provided information to the appellant for query Nos. 1, 2,3 and 5 of RTI application except the information requested in query No. 4 of RTI application, i.e. Report of FFC, by invoking section 8 (1)(i) of RTI Act 2005 as the report was prepared by a FFC constituted by the Department with the direction of Hon'ble Minister of science and Technology and cabinet secretariat to examine the allegations raised in the TelecomLive Magazine, which was under review in the cabinet secretariat during that time. FFC report was the basic material on the basis of which the decision was to be taken by Cabinet Secretariat. As the decision was pending and the matter was not completed or over, therefore, Department invoked section 8 (1)
(i) of RTI Act 2005.
3) The report was prepared by extracting the information provided by CEL, which contains their business policies, contract terms and conditions with vendors, details of work orders, etc. The disclosure of the same may affect CEL's business and its competitiveness in the market, thereby, information denied under section g (1) (a) as it likely to prejudicially affect the scientific and economic interest of DSIR.
4) A writ petition W.P.C. (C) 658 of 2017 was filed by Shri Madanjit Kumar (husband of the appellant) in the Hon'ble High Court of Delhi on the same allegations published in the TelecomLive Magazine, which were investigated by FFC. As decision on the WPC is pending with the Hon'ble High court of Delhi, disclosure of FFC report may constitute contempt of court. Therefore, Department has invoked section 8 (1)(b) of the RTI Act.
5) The FFC report contains information which is personal and has no relation with any public activity and would cause unwarranted invasion of privacy of some individuals and is therefore exempted under section 8 (1)(j) of RTI Act 2005. The same was claimed by the counsel of CEL in respect of RTI filed by Shri Astitva asking the copy of FFC report (Reference CIC order no.
CIC/DOSIR/A/2018/100642 dated 20-02-2018).
6) Reference may be made to the CIC order No. CIC/DOSIR/A/2018/100642 dated 20-02-2018, under similar RTI of Shri Astitva (RTI registration No. DOSIR/R/2017/50085), where the counsel of CEL has claimed that "the said report contains information supplied by CEL to the FFC which is held by it in commercial confidence and the disclosure of which cause prejudice the [Type text] Page 6 competitive position of the third party and the same is exempted from disclosure under RTI Act 2005 in terms of Section 8 (1) (d)". Accordingly CIC ordered to "separate the paragraphs claimed by the Counsel of CEL as commercial confidence, provide detailed conclusion of the fact finding committee on each allegation along with the "executive summary". Therefore, DSIR requested Hon'ble Commissioner to invoke Section 8(1)(d) of RTI Act for the instant RTI application." As directed by the Hon'ble IC in the case of Shri Astitva (CIC order No. CIC/DOSIR/A/2018/100642 dated 20-02-2018), Department had provided the copy of conclusion and executive summary of FFC report without hiding any paragraph, except names thereof to restrict from abusing the person concern.
Similarly, Department had provided the same information to Smt. Supriya Kumari before the date of CIC hearing on 01.05.2018.
7) Over the time of proceeding of the RTI, there was a shift in scenario such as decision pending on FFC report in the cabinet secretariat and later on decision received from cabinet secretariat, based on the submission of counsel of CEL, CIC ordered (CIC/DOSIR/A/2018/100642 dated 20-02-2018) to share the conclusion the conclusion and executive summary of FFC report, proceeding of writ petition on the same allegations as investigated in FFC report is pending under High Court of Delhi, etc. Therefore, there was not any malafide intension for denial of the information. As directed by the CIC in his order (CIC/DOSIR/A/2018/104889 dated 13.08.2018) recommendations of FAA and CPIO, DSIR and with the approval of secretary, DSIR the information has been provided to the appellant vide OM of even number dated 29-08-2018.
It is therefore stated that all the information available with the Department has provided to the appellant and the denial of information was on occurrence of reasons stated above and not at all malafide or deliberated. It is therefore requested to the commission that in view of the above, penalty may not be imposed.
12. Mr. B N Sarkar, submitted to the Commission that he had sent complete fact finding report to the appellant through speed post on 31.08.2018 and further added that as per the speed post tracking report, two delivery attempts were made by the postman but it was not delivered as the appellant's door was lock. In view of this, the Commission directs the respondent authority to provide a certified copy of complete fact finding report once again to the appellant, within 7 days from the date of receipt of this order.
13. Upon perusal of the records and submissions made by Mr. B N Sarkar, the Commission finds that the information which was sent on 31.08.2018 should have been given in the first instance, which was not done. It is pertinent to note that Mr. Sarkar had wrongly denied the information without justified reasons which is completely illegal. He went on changing the ground for denial.
[Type text] Page 7 Appellant's request was for a copy of inquiry report. The inquiry concluded that allegations were not established. The CPIO was of the opinion that copy should be given. But Mr. B. N. Sarkar, deemed CPIO, having custody of the report has consumed a year without giving complete report on contentions excuses, which are later proved baseless. He was given several chances to explain and justify the rejection.
14. The Commission upon considering the submissions of the respondent authority holds Mr. B. N. Sarkar, CPIO/Scientist 'G' deemed CPIO is liable and imposes a penalty of Rs. 5,000/- (Rupees five thousand) for not providing this information, within 30 days from the date of receipt of RTI application.
15. In view of the above observations, the Commission finds Mr. B.N. Sarkar, CPIO liable under section 20 of RTI Act and imposes a penalty of Rs. 5,000/- upon him. The penalty of Rs. 5,000/- shall be deducted by the Public Authority from the salary of Mr. Sarkar, the deemed CPIO by way of demand draft drawn in favour of "PAO CAT", New Delhi on or before 12.11.2018 and forward the demand draft addressed to Deputy Registrar (CR-II), email:
[email protected] Room No. 106, First Floor, Central Information Commission, Baba Gangnath Marg, Munirka, New Delhi-110067. Disposed of.
SD/-
(M. Sridhar Acharyulu)
Central Information Commissioner
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