Central Information Commission
Pankaj Kumar vs Nuclear Power Corporation Of India on 14 May, 2020
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई ददल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No.:- CIC/NPCOI/A/2018/628337-BJ
Mr. Pankaj Kumar
....अपीलकताग/Appellant
VERSUS
बनाम
CPIO & Dy. Manager (HRM),
Nuclear Power Corporation of India Limited,
Narora Atomic Power Station,
PO: Naps Township, Narora,
Distt. Bulandshahr - 203389
...प्रनतवादीगण /Respondent
Date of Hearing : 13.05.2020
Date of Decision : 14.05.2020
Date of RTI application 30.07.2016
CPIO's response 30.08.2016
Date of the First Appeal 19.09.2016
First Appellate Authority's response 23.01.2017
Date of diarised receipt of Appeal by the Commission Nil
[
ORDER
FACTS The Appellant vide his RTI application sought information on 02 points regarding the marked values in each segment of his APAR 2011-12, overall value in percentage of his APAR grading, etc. The CPIO, vide its letter dated 30.08.2016, provided a point-wise information wherein it was informed the Appellant that the system of e-APAR was introduced in NPCIL w.e.f. 2012-13 for non-executives in Technical category and values/markings for identified attributes have been specifically provided for in e-APAR. Moreover, it was informed that prior to 2012-13 the assessment used to be arrived out in the prescribed ACR format which did not contain specific guidelines for assigning values/marks for each attributes. Therefore, overall values in percentage for markings are not available. In addition, the custodian for the subject CR dossier is Health Physics Group Corporate Office and therefore, the matter needs to be referred to CPIO NPCIL, HQ. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order Page 1 of 6 dated 23.01.2017, while upholding the CPIO's response enclosed a copy of the letter giving implementation of APAR in DAE for the reporting period 2009-10 and disposed off the Appeal.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Pankaj Kumar through TC;
Respondent: Mr. B. B. Upadhyay, CPIO & Law Officer, Bulandshahar through TC;
The Appellant reiterated the contents of the RTI application and stated that complete and satisfactory information was not received by him, till date. He specifically sought for the marked values in each segment of his APAR 2011-12 and overall value in percentage of his APAR grading, etc. In its reply, the Respondent reiterated the replies of the CPIO/FAA and stated that the system of e-APAR was introduced in NPCIL w.e.f. 2012-13 for non-executives in Technical category and values/markings for identified attributes have been specifically provided for in e-APAR. It was further informed that prior to 2012-13 the assessment used to be arrived out in the prescribed ACR format which did not contain specific guidelines for assigning values/marks for each attributes. Therefore, overall values in percentage for markings were not available. Accordingly, a suitable reply was furnished to the Appellant. During the hearing, the Appellant informed his email address as ([email protected]).
The Commission was in receipt of a written submission from the Appellant email dated 05/08/09.05.2020 wherein while reiterating the background of the case, it was inter alia prayed to the Commission to provide him the marked values in each segment of Assessment sheet of his APAR and overall value in percentage of his APAR Grading as sought in the RTI application as also to impose penalty on the erring CPIO/FAA for furnishing incomplete information and for delaying the information as per the provisions of the RTI Act, 2005.
The Commission was in receipt of a written submission from the Respondent dated 11.05.2020 wherein a point-wise reply to the 2nd Appeal of the Appellant was reiterated. It was further submitted that Shri Pankaj Kumar, who is also an employee of Nuclear Power Corporation of India Limited, Narora Atomic Power Station, Narora, had sought information on two points, and point wise detailed response had been provided to him. In view of the above, it was submitted that information/response as held or under control of NPCIL/NAPS had already been provided to him within the frame work and the spirit of the RTI Act, 2005 and that nothing had been concealed. But, from their record, it was found that the same Applicant who is also an employee of NPCIL/NAPS had filed several RTI applications before CPIO, NPCIL/NAPS and subsequent Appeals to First Appellate Authority, NPCIL which in fact diverts considerable time and resources of the public authority.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information Page 2 of 6 relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "It is also not required to provide „advice‟ or „opinion‟ to an applicant, nor required to obtain and furnish any „opinion‟ or „advice‟ to an applicant. The reference to „opinion‟ or „advice‟ in the definition of „information‟ in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
The Commission also referred to the decision of the Hon'ble Supreme Court of India in Central Board of Secondary Education and Anr. Vs. Aditya Bandopadhyay and Ors, SLP(C) NO. 7526/2009 wherein it was held as under:
Page 3 of 6"Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter- productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of public authorities prioritising 'information furnishing' at the cost of their normal and regular duties."
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:
Page 4 of 6"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 Complainant could not substantiate his claims regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause. With regard to imposing penalty on the FAA, the Commission referred to the decision of 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, wherein it was held as under:
"9................................That being so, the legislative intent was that the penal provisions are to be implemented or enforced only against the CPIO and not against any other authority like the senior ranking officer or the Appellate Authority who decides the appeal under Section 19(1). If this was not the legislative intention, the words appearing in Sections 19(1) and (2) would have been differently worded and the construction of the statutory provision would have been entirely different. If the argument canvassed by the petitioner was to be accepted then by that interpretation, we would be expanding the meaning of a CPIO and we would be adding something more into the definition of CPIO than the one as was conceived by the legislature. This is not permissible under law and when the CPIO is only indicated to be officer against whom penal action can be taken under Section 20, we cannot read into the said statutory provision anything more by supplying words or meaning which would enlarge the scope of the penal provisions under Section 20. 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 Appellate Authority is not the custodian of the information or the document. It is only a statutory authority to take a decision on an appeal with regard the tenability or otherwise of the action of the CPIO and, therefore, there is a conscious omission in making the Appellate Authority liable for a Page 5 of 6 penal action under Section 20 of the RTI Act and if that be the scheme of the Act and the legislative intention, we see no error in the order passed by the learned writ Court warranting reconsideration."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, no further intervention of the Commission is required in the matter. For redressal of his grievance, the Appellant is advised to approach an appropriate forum. However, the Respondent is instructed to forward a copy of the written submission dated 11.05.2020 sent to the Commission to the Appellant within a period of 30 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email ([email protected]), as agreed.
It is appalling to note that the FAA had also not acted in accordance with the provisions of the RTI Act, 2005 and therefore is advised to be alert and cautious in the implementation of the RTI Act, 2005 with due diligence and care.
The Appeal stands disposed accordingly.
(The Order will be posted on the website of the Commission).
(Bimal Julka) (नबमल जुल्का) (Chief Information Commissioner) (मुख्य सूचना आयुक्त) Authenticated true copy (अनिप्रमानणत सत्यानपत प्रनत) K.L. Das (के .एल.दास) Dy. Registrar (उप-पंजीयक) 011-26186535/ [email protected] ददनांक / Date: 14.05.2020 Page 6 of 6