Central Information Commission
Mr.Yshawant Raj vs Government Of Nct Of Delhi on 15 December, 2010
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2010/002601/9930Penalty
Appeal No. CIC/SG/A/2010/002601
Relevant Facts emerging from the Appeal:
Appellant : Mr. Yashwant Raj
22/2 West Patel Nagar
Near Patel Park
New Delhi-110008
Respondent : Dr. J. C. Passey,
Deemed PIO & Procurement Officer Lok Nayak Hospital, Govt. of NCT of Delhi Near Delhi Gate, New Delhi -110002 RTI application filed on : 20/04/2010 PIO replied : 04/05/2010 First appeal filed on : 26/05/2010 First Appellate Authority order : 07/07/2010 Second Appeal received on : 13/09/2010 Sl. Information Sought Reply of PIO
1. Provide copy of all documents including, but not limited to the awardees list Appellant was related to the award of tender in respect of diagnostic kits and reagents requested to provide procured for use of the Blood Banking Department for diagnosis/testing of details of documents of blood components for HIV-1/2, Hepatitis-C. (HCV),Hepatitis-B(HbsAg) diagnostic kits and Svphilis (VDRL) and Malaria during year 2005-2006 to 2009-2010. reagents.
Grounds for the First Appeal:
Dissatisfactory and incomplete information provided by the PIO Order of the First Appellate Authority (FAA):
The PIO was directed to send the reply within 6 week's time.
Grounds for the Second Appeal:
The CMO/SPIO supplied to the Applicant irrelevant and unwanted documents which were either outside the purview of the application or had not been sought by the Applicant Relevant Facts emerging during Hearing held on October 28, 2010:
The following were present:
Appellant: Mr. Yashwant Raj ;
Respondent: Dr. S. S. Gambhir, PIO & Chief Medical Officer;
"The respondent admits that no information has been provided to the appellant even after the order of the FAA. It is apparent that though the appellant had sought copy of all documents including, but not limited to the awardees list related to the award of tender in respect of diagnostic kits and reagents procured for use of the Blood Banking Department for diagnosis/testing of blood components for HIV-1/2, Hepatitis-Page 1 of 4
C. (HCV),Hepatitis-B(HbsAg) Svphilis (VDRL) and Malaria during year 2005-2006 to 2009-2010 no of this has been provided. The PIO claims that the assistance of Dr. J. C. Passey, Procurement Officer had been sought under Section 5(4) of the RTI Act first on 26/04/2010 and then reminders were sent to him on 25/05/2010, 07/07/2010 & 28/09/2010. He states that Dr. J. C. Passey did not give any information and has given a letter this morning to the PIO which has been given to the Commission in which it is stated that the documents relating to 2006-07 cannot be traced, but only essential documents and final rate list are available. There is no reason available why the information sought by the appellant has not been given so far. It appears that Dr. J. C. Passey deemed PIO has consistently refused to provide the information though his assistance was sought and the FAA had also given clear orders."
Decision dated October 28, 2010:
The Appeal was allowed.
"The Commission directs the Medical Superintendent to ensure that the entire information duly attested is sent to appellant before 10 November 2010 free of cost. In case any of the documents are claimed to have been stolen/lost a police complaint will be filed by the Medical Superintendent mentioning the names of the persons who last handled the file. A copy of the police complaint will be sent to the appellant before 20 November 2010.
The issue before the Commission is of not supplying the complete, required information by the deemed PIO Dr. J. C. Passey, Procurement Officer within 30 days as required by the law. From the facts before the Commission it is apparent that the deemed PIO is guilty of not furnishing information within the time specified under sub-section (1) of Section 7 by not replying within 30 days, as per the requirement of the RTI Act. It appears that the PIO's actions attract the penal provisions of Section 20 (1). A showcause notice is being issued to him, and he is directed give his reasons to the Commission to show cause why penalty should not be levied on him. Dr. J. C. Passey, Procurement Officer will present himself before the Commission at the above address on 15 December 2010 at 11.30am alongwith his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20 (1). He will also bring the information sent to the appellant as per this decision and submit speed post receipt as proof of having sent the information to the appellant.
If there are other persons responsible for the delay in providing the information to the Appellant the PIO is directed to inform such persons of the show cause hearing and direct them to appear before the Commission with him."
Relevant facts emerging at the show cause hearing held on 15 December 2010:
The following were present:
Respondent: Dr. J. C. Passey, deemed PIO & Procurement Officer and Mrs. Menu Chaturvedi, Dealing Assistant;
The Respondents stated that further to the Commission's order dated 28/10/2010, information was provided to the Appellant on 11/11/2010. On perusal of the information provided, the Commission noted that the relevant documents for the years 2005- 06, 2007- 08 and 2008- 09 have not been provided to the Appellant. Dr. Passey submitted that the tender documents for the respective preceding years i.e. 2004- 05 and 2006- 07 were applicable to the three years mentioned above. However, this was not mentioned in the information provided on 11/11/2010. Moreover, the Commission observed that certain tender documents for the year 2004- 05 were not available. Dr. Passey submitted that the Medical Superintendent was in the process of filing a police complaint and that he was currently on leave. Dr. Passey stated that the Medical Superintendent shall resume office from 20/12/2010 and assured the Commission that the police complaint shall be filed by next week.
The Commission hereby directs Dr. J. C. Passey, deemed PIO & Procurement Officer to provide a clarification to the Appellant before December 31, 2010 to the effect that the relevant documents for Page 2 of 4 the years 2005- 06, 2007- 08 and 2008- 09 are same as the tender documents for the respective preceding years i.e. 2004- 05 and 2006- 07.
The Commission further directs the Medical Superintendent to file a police complaint in case any of the documents are claimed to have been stolen/lost mentioning the names of the persons who last handled the file and provide a copy of the police complaint to the Appellant and the Commission before December 31, 2010.
Further, Dr. Passey stated that he received the RTI application dated 20/04/2010 from the PIO on 25/05/2010. He was not aware of any reminder letter dated 26/04/2010. Dr. Passey, who was the custodian of information, also appeared to be aware of the order of the FAA and stated that he was in constant communication with the PIO regarding the instant RTI application. Dr. Passey stated that he was not able to provide the information on time as the records sought were very old and that they had been shifted to a distant location and therefore it was difficult to locate the same. He also submitted that the procurement staff was also transferred and hence, information could not be provided in a timely manner. The information has been provided on 11/11/2010. The Commission asked Dr. Passey for the reasons for not providing the information. He has stated that he was over worked and does not have adequate staff to do his duty. He also states that he was busy with Commonwealth Games and the current tendering process.
Section 20 (1) of the RTI Act states, "Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty five thousand rupees; Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be."
A plain reading of Section 20 reveals that there are three circumstances where the Commission must impose penalty:
1) Refusal to receive an application for information. 2) Not furnishing information within the time specified under sub-section (1) of section 7 - 30 days. 3) Malafidely denying the request for information or knowingly giving incorrect, incomplete or
misleading information or destroying information which was the subject of the request
4) Obstructing in any manner in furnishing the information.
All the above are prefaced by the infraction, ' without reasonable cause'.
Section 19 (5) of the RTI Act has also stated that "In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request."
Thus if without reasonable cause, information is not furnished within the time specified under sub-section (1) of section 7, the Commission is dutybound to levy a penalty at the rate of rupees two hundred and fifty each day till the information is furnished. Once the Commission decides that there was no reasonable cause for delay, it has to impose the penalty at the rate specified in Section 20 (1) of the RTI Act and the law gives no discretion in the matter. The burden of proving that denial of information by the PIO was justified and Page 3 of 4 reasonable is clearly on the PIO as per Section 19(5) of the RTI Act.
The RTI application was received by Dr. Passey as per his admission on 25/05/2010 and he has provided the information only on 11/11/2010 after the decision of the Information Commission. Thus the Respondent has refused to give the information on the tenders until the Commission forced the matter. The Commission is not able to accept an excuse that an officer does various other jobs claiming over work but neglects to do the one job where there is a personal liability of `250/- per day of delay. Since Dr. Passey has not given any reasonable cause for the delay in providing the information the Commission sees this as a fit case for levy of penalty under Section 20(1) of the RTI Act. Since the delay in providing the information has been far over 100 days the Commission imposes the maximum penalty of `25000/- under Section 20(1) of the RTI Act on Dr. J. C. Passey, deemed PIO & Procurement Officer.
Decision:
As per the provisions of Section 20 (1), the Commission finds this as a fit case for levying penalty on Dr. J. C. Passey, deemed PIO & Procurement Officer. Since the delay in providing the information has been over 100 days, the Commission is passing an order penalizing Dr. J. C. Passey `25000/ which is the maximum penalty under the Act.
The Chief Secretary of GNCT of Delhi is directed to recover the amount of `25000/- from the salary of Dr. J. C. Passey and remit the same by a demand draft or a Banker's Cheque in the name of the Pay & Accounts Officer, CAT, payable at New Delhi and send the same to Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary of the Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi - 110066. The amount may be deducted at the rate of `5000/ per month every month from the salary of Dr. J. C. Passey and remitted by the 10th of every month starting from January 2011. The total amount of `25000 /- will be remitted by 10th May, 2011.
Shailesh Gandhi Information Commissioner 15 December 2010 (In any correspondence on this decision, mentioned the complete decision number.)(AS) 1- The Chief Secretary GNCT of Delhi New Delhi 2- Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi - 110066 Page 4 of 4