Central Information Commission
R K Jain vs Central Board Of Excise And Customs - ... on 11 October, 2017
CENTRAL INFORMATION COMMISSION
Room No. 06, Club Building, Old JNU Campus
New Delhi -110067. Tel: 011 - 26182597, 26182598
Email: [email protected]
Complaint No.:-CIC/SB/C/2016/000017-BJ-Adjunct-I
Complainant : Mr. R K Jain
Respondent : I. Mr. V.P.Pandey
CPIO & Assistant Registrar,
Customs Excise & Service Tax Appellate
Tribunal, New Delhi
II. CPIO and Accounts Officer,
Customs Excise & Service Tax Appellate
Tribunal, New Delhi
Date of Hearing : 27.02.2017, 04.09.2017, 10.10.2017
Date of Decision : 27.02.2017, 04.09.2017, 10.10.2017
Date of filing of RTI application 17.07.2015
CPIO's response 24.07.2015,
21.08.2015
Date of filing the First Appeal 27.08.2015
First Appellate Authority's response 22.09.2015
Date of diarised receipt of complaint by the Commission 16.11.2015
ORDER
FACTS:
The complainant, vide his RTI application sought information on points [A (i to viii)] related to inspection of case records of file numbers mentioned in the RTI Application.
The CPIO and Accounts Officer vide its letters dated 24.07.2015 and 21.08.2015 transferred the RTI application to AR, Excise, CESTAT, New Delhi. Dissatisfied by the response of the CPIO, the complainant approached the FAA. The FAA, vide its order dated 22.09.2015, directed the CPIO to collect the information from the concerned officials and forward the same to the complainant within a period of three weeks from the date of receipt of order.
Facts emerging during the hearing on 27.02.2017:
The following were present:
Complainant: Mr. R. K. Jain;
Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar, CESTAT, New Delhi;Page 1 of 11
The complainant reiterated the contents of his RTI application and stated that the inspection of 5 judicial files was sought by him. He further submitted that the CPIO vide its letter dated 24.07.2015 transferred the RTI application to the respondent directing him to provide information /inspection of documents on or before 05.08.2015. Thereafter, despite many reminders, no reply was provided to him. The FAA vide its order dated 22.09.2015 directed the CPIO to collect the information/documents from the concerned section and to forward the same to the complainant within a period of three weeks from the day of receipt of its order. It was also contended by the complainant that the respondent was present at the time of hearing before FAA. The respondent submitted that documents had been provided to the complainant on 02.05.2016 in a similar matter, which was denied. The Commission observed that the RTI application kept shuttling between different sections in the public authority without actually furnishing any substantial information sought by the appellant. It is a matter of concern that the RTI application dated July, 2015 had been actioned by public authority officials after a lapse of almost an year which is highly objectionable and condemnable.
It was noted with utter dismay and disappointment the manner in which this RTI application had been dealt with by the public authority officials. Merely, shuttling the application from one department to another reflects the casual approach of the respondent in dealing with RTI applications, where the intent is to carry out an utterly useless paper exercise by filling in the gaps rather than focusing on the public interest. As per the documents available on record it is observed that the respondent did not respond to the RTI Application within the time frame prescribed under section 7 (1) of the RTI Act, 2005.
DECISION:
Keeping in view the facts of the case and the documents available on record, it is evident that information with substantive delay had been provided by the respondent in the matter, which is a grave violation of the provisions of the RTI Act, 2005. The Commission, instructs the CPIO to showcause why action should not be taken under the provisions of the Act for this misconduct and negligence. The Commission therefore, directs the respondent to:
1- explain why penal action should not be taken as per Section 20(1) of the RTI Act, 2005, within 15 days;
from the date of receipt of this order.
The public authority is also advised to re-examine its methodology by which the RTI applications are dealt with in this organization and evolve a robust mechanism for quick disposal of RTI matters in letter and spirit respecting the provisions of RTI Act.
The complaint stands disposed with above direction.Page 2 of 11
Note: Subsequent to the receipt of an explanation from the Respondent dated 14.03.2017 to the show cause notice issued by the Commission in its order dated 27.02.2017, the Dy. Registrar fixed 04.09.2017 as the next date for hearing.
Facts emerging during the hearing on 04.09.2017:
The following were present:
Complainant: Mr. R. K. Jain;
Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar, CESTAT, New Delhi and Mr. Rajender Prasad, Ex-CPIO;
The Respondent no.01 (Mr. Rajender Prasad) vide his written explanation dated 14.03.2017 to the show cause issued by the Commission submitted that the Complainant filed an RTI application on 20.07.2015 seeking some information with regard to 17 Excise Appeals. The same Application was registered at their Office with ID no. 10-118/2015, in terms with Section 5(4) r/w Section 5(5) of the RTI application and was accordingly forwarded to Asst. Registrar, Excise, CESTAT, New Delhi vide letter dated 24.07.2015 for providing requisite information to the Complainant within a stipulated time period. Since, the information was not provided, several reminders dated 21.08.2015, 31.08.2015 and 16.09.2015 were issued to AR, EXCISE, CESTAT to provide information immediately. Moreover, CESTAT vide its order dated 28.09.2015 appointed Mr. S.K Verma, AR as the CPIO and that he had handed over the charge on 30.09.2015 to Mr. S. K. Verma, who was in receipt of the FAA order dated 20.10.2015 and forwarded the same to the concerned authority i.e. AR, CESTAT vide letter dated 23.10.2015. Therefore it was alleged that the delay in providing the information was on the part of the AR, Excise, CESTAT. It was further conveyed that that due efforts were undertaken by him to collect the information under the provision of the RTI Act, 2005 and thus it was prayed that show cause proceedings against him may be dropped in the interest of justice and equity and the same position was affirmed during the hearing.
The Complainant vide his oral and written response to the written explanation filed by the Respondent no.01 dated 28.04.2017 objected to the non-submission of any explanation by the present CPIO, CESTAT Mr. V. P. Pandey in the present matter, despite being the holder of requisite information and being present before the Commission during the last hearing. It was also argued that Mr. S. K. Verma should have also submitted an explanation in this matter. It was stated that the Respondent had transferred the RTI application to the AR(Excise), New Delhi and had issued number of reminders to AR(Excise), CESTAT, New Delhi to provide requisite information. The FAA vide its order dated 22.09.2015 had also directed to provide information which was forwarded to Mr. S.K. Verma and Mr. V. P. Pandey, CPIO & AR(Excise), but no information was provided by them. It was further alleged that the Respondent vide his written explanation, mentioned as above, had blamed Mr. V. P. Pandey for not furnishing Page 3 of 11 information. Moreover, the FAA vide its order dated 22.09.2015 had also recorded the failure of Mr. V. P. Pandey for not providing information to him. Thus, it was contended that the facts of the present case establishes the malafide and deliberate intention of Mr. V. P. Pandey for not responding to his RTI application and also for not complying with the FAA order. Therefore, a prayer was made to direct Mr. V. P. Pandey and Mr. S. K. Verma for tendering their explanation to the show cause notice for not responding to his RTI application, till date. It was further informed that the information sought by him was not voluminous in nature and there was a considerable delay of around 1145 days in providing information to him despite the order of the FAA and reminder of the Respondent no.01 in this regard. Moreover, in similar matters, the Complainant had placed his objection in his written submissions against the lackadaisical role underplayed by Respondent no.01 acting as a CPIO at CESTAT wherein it was argued that the claim undertaken by Respondent 01 for not being responsible for the delay caused in providing information was incorrect in view of the binding and settled preposition of the law laid down by the Hon'ble Delhi High Court in the case of J.P Agarwal v. Union of India & Ors., W.P (C) no. 7232 if 209 decided on 04.08.2011 wherein it was held that the CPIO was not merely a post office for gathering information and sending it to the RTI applicant. It was also alleged that the CPIO, despite knowing that no information had been provided by then deemed CPIO, had not acted in accordance with the provisions of the RTI Act, 2005 and did not take any effective action for providing the information in compliance with the order of the FAA. A reference was made to the CIC decision in the case of Harish Kumar v. Mukesh Kumar in CIC/SB/A/2009/002966 and similarly in CIC/ST/A/2010/002810 dated 15.10.2010 wherein penalty was imposed on the CPIO for non-compliance of the FAA order and compensation was granted to the RTI applicant.
The Complainant during the hearing informed the Commission that he had no objection to the explanation rendered by Mr. Rajender Prasad (Respondent no.01) and that the said Respondent had duly complied with his statutory duty as the CPIO in the present matter. However, allegation was made against the malafide obstruction of information caused by the present CPIO, Mr. V. P Pandey (Respondent no.02) in defying the order of the FAA and not responding to the reminders issued by Respondent no.01 for providing information. It was further argued that Respondent no.02 was working in the dual capacity as the Deemed CPIO and thereafter as the CPIO, and therefore it was incumbent upon him to provide a response or requisite information within the stipulated time period. A reference was made in the submission filed by the Complainant during the hearing, to the decision of Hon'ble Punjab and Haryana High Court in WP(C) no. 14161 of 2009 dated 10.09.2009, CIC decision in CIC/SG/A/2010/003279/10796 dated 06.01.2011 and in CIC/SG/A/2010/003342 dated 06.01.2011, in CIC/SG/A/2009/002966/6263 dated 01.02.2010, in CIC/SA/A/2014/ 001673 dated 05.05.2015 and Gujarat High Court decision in Urmish M Patel v. State of Gujarat( SCA no. 8376 of 2010) decided on 10.12.2010 and Page 4 of 11 decision of Bombay High Court in the case of Johnson B Fernandes v. Goa State Information Commission (AIR 2012, Bombay. 56) and in Delhi High Court decision in Vivek mittal v. B.P Srivastava & ors.(WP(C) 19122/2006 dated 24.08.2009 substantiating his contention regarding the imposition of penalty on the CPIO for causing malafide delay or obstruction caused in delivery of information despite FAA orders.
The Respondent furnished a copy of written submission to the Commission dated 04.09.2017, during the hearing, and submitted that since no direction was made to him for furnishing any explanation to show cause notice, therefore, he had nothing more to add before the Commission. However, a prayer was made by him to provide sufficient time to file a response to the written submission provided by the Complainant to the Commission citing certain judgments during the hearing since he was not prepared to defend himself on such issues and also requested to fix the next date of hearing within a gap of one month's time keeping in view the numerous pending RTI matters before the Respondent Public Authority and the time needed by him to provide a cogent response in each and every matter. It was however, argued that primarily the delay occurred due to creation of new benches, shortage of staff and other pressing official preoccupations.
ADJUNCT DECISION:
Keeping in view the facts of the case and written submissions made by both the parties and in the light of the submissions made by the parties during the hearing and the request made by Respondent no.02 (Mr. V.P. Pandey, CPIO, CESTAT, New Delhi) to provide requisite time to file his response, the Commission directs Dy. Registrar to fix another date of hearing in the matter. In the meanwhile, the Respondent no.02 is directed to submit his response to the Commission, with a copy to the Complainant, within a period of 30 days from the date of receipt of this order.
Note: Subsequent to Commission's Order of even number dated 04.09.2017 and as per directions contained therein the Dy. Registrar has been re-fixed for hearing on 10.10.2017 as the next date for hearing.
Facts emerging during the hearing on 10.10.2017:
The following were present:
Complainant: Mr. R. K. Jain;
Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar, CESTAT, New Delhi; Mr. Rajender Prasad, Ex-CPIO; and Mr. Manoj Kumar, MTS;
The Respondent (Mr. V.P Pandey) vide his written submission dated 04.09.2017 submitted that in 2015, the Complainant had filed hundred of RTI applications seeking copies of judicial records which were voluminous in nature and that the Complainant was in a habit of filing multiple RTI applications pertaining to similar nature of information in order to create Page 5 of 11 futile and unwarranted burden on the Respondent Public Authority. It was mentioned that during 2014-2015 and 2016, the Complainant had filed hundreds of RTI applications with thousands of questions that required searching, tracing, breaking of tags of voluminous judicial records and arranging Xerox copies of such records. The Respondent further took the plea of being pre-occupied with time bound work for establishment of CESTAT's new bench at Allahabad and Chandigarh. After establishment of new Registry, there were many jobs to be completed for functioning of CESTAT, which took a month time keeping in view the infrastructure constraints of the Respondent Public Authority. It was further informed that there were a limited number of clerks in the CESTAT registry who were pre-
occupied with the routine work of the Registry, CESTAT, which were essential for the functioning of the Tribunal for disposal of voluminous Excise Appeal cases. It was further submitted that for furnishing copies of the judicial records of CESTAT, there was a provision in the CESTAT procedure Rules, 1982 but the Complainant did not take the route of extant guidelines of CESTAT but had filed the RTI application under the RTI Act, 2005. It was argued that the Complainant had requested for information pertaining to judicial records which did not pertain to him and was extremely voluminous in nature. It was explained that the photo copies of the judicial records had already been provided to the Complainant on 02.05.2016 and the delay was caused in providing the requisite information due to voluminous nature of information sought which was not possible by hindering the routine and regular work of the CESTAT, Registry. It was submitted that the delay was caused in furnishing the reply dated 06.04.2016 only on 02.05.2016, since the Complainant had a habit of filing Complaint for obstruction of information even in cases where 01 or 02 pages were missed inadvertently by the staff of the Respondent Public Authority and since the replies were numerous in nature, the time was required to cross check the matter. A reference was made to the decision of the Hon'ble Supreme Court in the matter of in CBSE & Anr. Vs. Aditya Bandopadhyay & Ors., SLP(C) NO. 7526/2009 to substantiate his contention. A further reliance was placed on the decision of CIC/SB/C/2016/000063 dated 23.11.2016, in CIC/SB/A/2015/000485 dated 14.12.2016, in CIC/SB/A/2016/000989-BJ dated 31.01.2017, in CIC/SB/A/2016/000943 dated 22.02.2017, in CIC/SB/A/2016/000937 dated 22.02.2017 and in CIC/SB/C/2016/000239-BJ dated 28.02.2017.
The Respondent vide his another written submission dated 09.10.2017 in response to the point wise note submitted by the Complainant to the Commission during the hearing, argued that the imposition of penalty can be made by the Commission only if there was unreasonable, intentional and malafide delay or obstruction of information by the CPIO. The Respondent further argued on the presence of Complainant in the penalty proceedings before the Commission and the Complainant cannot, as a matter of right, claim audience in the show cause proceedings. A reference was placed on the decision of the Hon'ble Delhi High Court in the matter of Ankur Mutreja v. Delhi University in LPA no. 764/2011, in the matter of Anand Bhushan v.
Page 6 of 11R.A Haritash (LPA no.777/2010) and in the matter of Naresh Kumar v. CIC (W.P(C) 11065/2015 & C.M no. 325/2016 to substantiate his contention further.
Therefore, the Respondent requested the Commission to dismiss the present matter keeping in view the merits of the case and his humble submission placed on record before the Commission.
The Complainant made strong objection to the submission of the Respondent and stated that this was not the case of delay in providing information but there had been denial of information, till date. It was argued that the FAA vide its order dated 22.09.2015 had directed the Respondent to provide information; however no compliance had been made of the FAA order, till date by the Respondent. The Respondent contested the statement made by the Complainant before the Commission and submitted that requisite information had already been provided to the Complainant vide letter dated 02.05.2016 (with ID no. 10-118/2015) which was hand delivered to the Complainant and was received by the Complainant on the same date. A copy of the said letter was provided to the Commission for its perusal. In response, the Complainant while admitting the receipt of information under his signature, could not justify his stand further but emphasised on the delay caused in complying with the FAA order dated 22.09.2015.
The Respondent argued upon the proposition of making Complainant a necessary audience in the penalty proceedings before the Commission and submitted that as per the Delhi High Court decisions stated above, the Complaint had no basic right of being a party to the show cause proceedings before the Commission and is/was as per the discretionary power of the Commission to allow the Complainant to take part in such proceedings. A reference was made to the following observations of the High Court of Delhi in its judgment dated 9.1.2012 in Ankur Mutreja vs. Delhi University [LPA 764/2011] wherein it was held as under:
"The Act does not provide for the CIC to hear the complainant or the appellant in the penalty proceedings, though there is no bar also thereagainst if the CIC so desires. However, the complainant cannot as a matter of right cla im audience in the penalty proceedings which are between the CIC and the erring In formation Officer."
Similarly, THE HIGH COURT OF DELHI AT NEW DELHI in W.P.(C) 11065/2015 & C.M.No.325/2016 ( date of decision 12th January, 2016 had held as under:
"5. In the opinion of this Court, the formation of opinion under Section 20 (2) of the RTI Act is in the exercise of supervisory powers of CIC and Page 7 of 11 not in the exercise of the adjudicatory powers. This Court is also of the view that the information seeker has no locus standi in penalty proceedings under Section 20 of the RTI Act.
7. This Court is of the view that the aforesaid law is applicable to not only proceedings under Section 20 (1) but also under Section 20(2) of the RTI Act. Consequently, this Court is of the opinion that the CIC was well entitled in its discretion not to direct initiation of the disciplinary proceedings under Section 20 (2) of the RTI Act, especially, when the information sought by the petitioner had been directed to be provided to him."
The Appellant affirmed to the decision of the Hon'ble Delhi High Court made in this regard and stated that the Commission had full discretionary power to allow Complainant in the penalty proceedings.
Moreover, it was argued that the penalty can be imposed on the erring PIO only in cases where there had been unreasonable/malafide and intentional delay in providing information to the Appellant/Complainant and any violation of the RTI Act, 2005 could not be made a ground for imposition of penalty under the RTI Act,2005. A reference was made to the decision of the Delhi High Court in the matter of Anand Bhushan v. R.A Haritash (LPA no.777/2010 decided on 29 March, 2012 wherein it had been held as under:
15. We may at the outset notice that a Division Bench of this Court in judgment dated 6th January‟ 2011 in LPA 782/2010 titled Central Information Commission v. Department of Posts, in spite of the argument raised that that Single Judge ought not to have reduced the penalty imposed by the CIC but finding sufficient explanation for the delay in supplying information, upheld the order of the Single Judge, reducing the penalty. Though Section 20(1)uses the word "shall", before the words "impose a penalty of Rs. two hundred and fifty rupees" but in juxtaposition with the words "without reasonable cause, malafidely or knowingly or obstructed." The second proviso thereto further uses the words, "reasonably and diligently". The question which arises is when the imposition of penalty is dependent on such variables, can it be said to be mandatory or possible of calculation with mathematical precision. All the expressions used are relative in nature and there may be degrees of, without reasonable cause, malafide, knowing or reasonableness, diligence etc. We are unable to bring ourselves to hold that the aforesaid provision intends punishment on the same scale for all degrees of neglect in action, diligence etc. The very fact that imposition of penalty is made dependent on such variables is indicative of the discretion vested in the authority imposing the punishment. The Supreme Court in Carpenter Classic Exim P. Ltd. V. Commnr. of Customs (Imports) (2009) 11 SCC 293 was concerned with Section 114 A, Customs Act, Page 8 of 11 1962 which also used the word "shall" in conjunction with expression "willful mis- statement or suppression of facts"; it was held that provision of penalty was not mandatory since discretion had been vested in the penalty imposing authority. Similarly in Superintendent and Remembrancer of Legal Affairs to Government of West Bengal V. Abani Maity (1979) 4 SCC 85, the words „shall be liable for confiscation‟ in section 63 (1) of Bengal Excise Act, 1909, were held to be not conveying an absolute imperative but merely a possibility of attracting such penalty in spite of use of the word "shall". It was held that discretion is vested in the court in that case, to impose or not to impose the penalty.
Hearing both the parties and on perusal of records, it is evident that information had been provided by the Respondent vide letter dated 02.05.2016 enclosing 50 pages and the same was received by the Complainant on the same date, which was also not disputed by the Complainant, present during the hearing.
In this context, the Commission would like to place its reliance to the OM No. 1/18/2011-IR of DoP&T dated 16.09.2011 and the judgment pronounced by Hon'ble Supreme Court of India in case of CBSE and Anr. Vs. Aditya Bandopadhyay & Ors. Civil Appeal No. 6454/2011 wherein it was held as under :
"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."
Furthermore, the Commission observed that though there was a delay caused in delivery of information but there was no malafide intention on the part of the Respondent to obstruct free flow of information. The Commission felt satisfied by the reliance placed by the Respondent to the decision of the Hon'ble Supreme Court of India in CBSE & Anr. Vs. Aditya Bandopadhyay & Ors., SLP(C) NO. 7526/2009 wherein it was held as under:
".....The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritizing 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 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 10806 of 2011. [O&M] Date of Decision: 02nd Page 9 of 11 December, 2011 (Gurcharan Singh vs. State Information Commission, Punjab & Ors.) wherein it was held as under:
"Having heard learned counsel for the parties, I find that the State Information Commission has no where held that the petitioner withheld any information deliberately or willfully. Nonfurnishing of satisfactory explanation would not ipso-facto mean that the petitioner withheld the information with a motive or mala-fidely. That being so, the harsh penalty imposed vide the impugned order dated 10.05.2011 [Annexure P-8] is uncalled for and the same is set aside but with a stern warning to the petitioner to be careful in future and ensure that as and when an application is received under the Act, he shall be obligated to act upon promptly and in any case within the stipulated period."
Similarly, THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH in Civil Writ Petition No.6504 of 2009 Date of decision: 04.03.2010 (State of Punjab and others vs. State Information Commissioner, Punjab and another); had held as under:
3. The penalty provisions under Section 20 is only to sensitize the public authorities that they should act with all due alacrity and not hold up information which a person seeks to obtain. It is not every delay that should be visited with penalty. If there is a delay and it is explained, the question will only revolve on whether the explanation is acceptable or not. If there had been a delay of a year and if there was a Superintendent, who was prodding the Public Information Officer to act, that itself should be seen a circumstance where the government authorities seemed reasonably aware of the compulsions of time and the imperatives of providing information without any delay. The 2 nd respondent has got what he has wanted and if there was a delay, the delay was for reasons explained above which I accept as justified.
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 Complainant could not satisfy the Commission or substantiate his claims further regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause.
Page 10 of 11ADJUNCT DECISION-I Keeping in view the facts of the case and submission made by both the parties and in the light of afore-mentioned decisions of the Hon'ble Courts, no further intervention of the Commission is warranted in this matter.
The showcause proceedings stand dropped and the matter is closed.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Page 11 of 11