Central Information Commission
K K Garg vs Chief Commissioner Of Income Tax (Cca) , ... on 11 December, 2017
CENTRAL INFORMATION COMMISSION
Room No. 305, 3rd Floor, CIC Bhavan, Baba Gangnath Marg, Munirka,
New Delhi-110067, website:cic.gov.in
Complaint No.:-CIC/CCABH/C/2017/120044-BJ
Complainant : Mr. K.K. Garg,
Respondent : CPIO & ITO (Hqrs.),
O/o. The ITO (Hqrs.), Gwalior
Date of Hearing : 08.12.2017
Date of Decision : 11.12.2017
Date of filing of RTI application 10.10.2016
CPIO's response 13.10.2016,
01.02.2017
Date of filing the First Appeal 19.10.2016,
28.11.2016
First Appellate Authority's response 28.11.2016
Date of diarised receipt of Complaint by the Commission 25.03.2017
ORDER
FACTS:
The Complainant vide his RTI application sought information on 03 points regarding the letter dated 04.10.2016 addressed to the Pr. CIT, Gwalior, whether any oral instructions were given to Shri Ishwar Dayal Singh, Security Guard on 28.09.2016 prohibiting the entry of the Complainant to the premises of the IT Department and issues related thereto.
The CPIO and ITO (HQ), Gwalior, vide its letter dated 13.10.2016, stated that no such information was available in their office. Dissatisfied by the response of the CPIO, the Complainant approached the FAA. The FAA, vide its order dated 28.11.2016, stated that no person was prohibited to enter the premises of the ITO, City Centre, Gwalior. Thus, the ITO (HQ), Gwalior was directed to re-examine the RTI application of the Complainant. In compliance with the order of the FAA, the CPIO and ITO (HQ), Gwalior vide its letter dated 01.02.2017, provided a point wise response to the Complainant.
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Mr. K.K. Garg through VC;
Respondent: Mr. Puneet Sehgal, Inspector through VC;
The Complainant reiterated the contents of his RTI application and stated that no satisfactory information had been provided to him, till date. Narrating the incident of alleged misbehaviour with him by the security staff Page 1 of 6 on the instructions of the Sr. Officials of the Department, it was submitted that the officials in the Respondent Public Authority violated norms of discipline and conduct as expected of a civil servant. He further cited the OM issued by DoP&T No.4/9/2008-IR dated 24.06.2008 in this regard.
In his written submission dated 28.11.2017, the Complainant at the outset requested that the First Appellate Authority should have provided an opportunity of hearing and prayed for issuance of a fresh date of hearing in the matter. It was explained that the primary reason for filing the present Complaint before the Commission was pertaining to the oral directions given by the FAA to its subordinate officers regarding prohibition on the Complainant to enter the office premises. It was also submitted that the CPIO acted in contravention of the DoPT Circular dated 17.03.2015. With regard to the order of the FAA, it was stated that the same was not passed within the timelines prescribed u/s 19 (6) of the RTI Act, 2005. A reference was also made to the decision of the Commission in CIC/SA/A/2014/000254 dated 12.11.2014 and several other decisions of the Central Information Commission and M.P. State Information Commission for disposal of First Appeal. The Complainant therefore prayed for imposition of penalty and disciplinary proceedings against the CPIO as per Section 20 (1) and 20 (2) of the RTI Act, 2005, disciplinary action against the FAA and compensation to him u/s 19 (8) (b) of the RTI Act, 2005. The Commission was also in receipt of a written submission from the Respondent dated 07.12.2017 wherein it was stated that the information sought by the Complainant had been provided. During the hearing, however it was argued that the Complainant was not seeking any specific information but desired details of the action taken relating to his personal grievance. It was articulated that such issues do not fall within the definition of Section 2(f) of the RTI Act, 2005.
Hearing both the parties and on perusal of the records, the Commission noted the definition of Section 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 relating to any private body which can be accessed by a public authority under any other law for the time being in force."
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 Page 2 of 6 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 OM No. 1/18/2011-IR dated 16.09.2011 of Ministry of Personnel, Public Grievance and Pension, Department of Personnel and Training was referred wherein the observation of the Hon'ble Supreme Court of India in Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors. (Civil Appeal No. 6454 of 2011) were specifically mentioned.
The Commission also observed that 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."
Similarly, the High Court of Bombay in Dr. Celsa Pinto, Ex-Officio Joint Secretary (School Education) vs The Goa State Information Commission on 3 April, 2008 (2008 (110) Bom L R 1238) had held as under:
"Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to Page 3 of 6 any private body which can be accessed by a public authority under any other law for the time being in force; The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information."
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information."
Furthermore, the Commission observed that under the provisions of the RTI Act, 2005, adjudication on the merits of the case, reasons for non compliance of rules/contesting the actions of the Respondent Public Authority and substantive rights of the parties are outside the purview of the Act.
In this context, the Commission referred to the decision of the Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. v. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 wherein it had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. v. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate fora. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the Page 4 of 6 respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
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:
"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 Page 5 of 6 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 was not able to contest the submission of the Respondent or to substantiate his claims further regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause.
DECISION Considering the facts of the case and the submission made by both the parties, it is evident that a suitable reply had been given by the Respondent. For redressal of his grievance, the Complainant is advised to approach an appropriate forum.
The Complaint stands disposed accordingly.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Page 6 of 6