Central Information Commission
Varun Krishna vs Spmcil Security Printing Press ... on 20 December, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
िशकायत सं या / Complaint No.:- CIC/SPPRE/C/2016/303959-BJ-Adjunct
Mr. Varun Krishna
.... िशकायतकता
/Complainant
VERSUS
बनाम
1. The CPIO,
Security Printing and Minting Corporation
Of India Ltd., Miniratna Category-I,
CPSE, 16th Floor, Jawahar Vyapar Bhawan,
Janpath, New Delhi-110 001.
2. The CPIO
India Security Press,
Nashik SPMCIL,
Nashik Road, Nashik-422101, Maharashtra.
... ितवादीगण /Respondent
Date of Hearing : 10.07.2017, 28.07.2017
Date of Decision : 10.07.2017, 28.07.2017 and 17.12.2018
Date of filing of RTI application 14.05.2016
CPIO's response 25.05.2016 and
08.07.2016
Date of filing the First appeal Nil
First Appellate Authority's response Not on Record
Date of diarised receipt of Complaint by the Commission 19.09.2016
ORDER
FACTS:
The Complainant vide his RTI application sought information on 09 points regarding certified copy of current stock situation, current status of Tender No. 07/NCB/ReNT-P/201 dated 06.04.2015 titled: Reinforced Tear and Water resistant Paper, application where the paper was used along with name of the clients to whom the paper had been supplied after further processing/ printing and issues related thereto.
The CPIO, SPMCIL, vide its letter dated 25.05.2016, transferred the RTI application to the General Manager, ISP, Nashik, u/s 6 (3) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Complainant approached the FAA. The PIO while responding to the First Appeal, vide its letter dated 08.07.2016, requested the Complainant to approach CPIO and FAA, ISP, Nashik.
HEARING:
Facts emerging during the hearing on 10.07.2017:
The following were present:
Complainant: Mr. Varun Krishna;
Respondent: Mr. V. Balaji, CPIO & DGM(HR) and Mr. Naveen Dogra, Assistant (Arrived late);
The Complainant reiterated the contents of his RTI Application and stated that no satisfactory information was provided to him, till date. It was submitted that the RTI application as well as the First Appeal was transferred to ISP, Nashik which had deliberately provided a delayed response after 50 days in contravention to Section 7 (1) of the RTI Act, 2005. In its written submission dated 28.06.2017, the Complainant also stated that the ISP--Nashik was defeating the RTI Act, 2005 even after intervention of CIC and although FAA had offered him inspection recently, he was reluctant to take the same.
In its reply, the Respondent submitted that the RTI application was transferred to ISP, Nashik under Section 6 (3) of the RTI Act, 2005 vide letter dated 25.05.2016 since the queries raised pertained to ISP, Nashik which was a separate unit having separate designated CPIO and FAA. The First Appeal was also similarly dealt with vide order dated 08.07.2016. In its written submission dated 04.07.2017, it was also stated that the India Security Press, Nashik is one of the nine units which was functioning under the umbrella of SPMCIL that had designated separate PIO and FAA for each Unit and Corporate Office for providing information held by them. The Respondent also submitted that names of PIO/ FAA of each unit were also uploaded on the website of SPMCIL. It was also submitted that the Appellant had filed a number of RTI applications to their Corporate Office and every time he was informed that the provisions of Section 5 (4) and 5 (5) of the RTI Act, 2005 were applicable where PIO had to collect information from any other officer within the office. However, ISP, Nashik was another Public Authority having its own PIO hence provisions of Section 6 (3) of the RTI Act, 2005 were applicable and that they could give no other direction except transferring the RTI application in respect of Units under SPMCIL to avoid disproportionate diversion of resources of Public Authority under Section 7(9) of the RTI Act 2005. As per the facts available on record with the Commission it was observed that the RTI application was already transferred to ISP, Nashik as per Section 6 (3) of the RTI Act, 2005 and the CPIO, ISP, Nashik would be the appropriate authority to respond in the matter.
INTERIM DECISION Keeping in view the facts of the case and the submissions made by both the parties, and in the interest of natural justice to provide a fair hearing to all the concerned parties, the Commission instructs the Dy. Registrar to be vigilant in such matters and fix another short date of hearing and also issue a notice to the CPIO, ISP, Nashik to appear on the next date of hearing in the matter. The Dy. Registrar is also instructed to be careful in future to and fix a short date of hearing to the relevant parties.
The matter stands adjourned.
Note: Subsequently the Dy. Registrar vide its letter dated 13.07.2017 fixed 28.07.2017 as the next date of hearing in the matter.
Facts emerging during the hearing on 28.07.2017:
The following were present:
Complainant: Mr. Varun Krishna;
Respondent: Mr. V. Ramulu, CPIO and Manager (HR), ISP, Nashik through VC; Mr. Prakash Kumar, Dy. Manager, Corporate Office, New Delhi; Mr. Naveen Dogra, Assistant, (Corporate Office), New Delhi in person;
The Complainant submitted that the RTI application was replied belatedly after a period of 50 days by ISP, Nashik which was in violation to the provisions of the RTI Act, 2005. Explaining that the tenders issued by ISP were categorised into Security and Non-Security tenders and that the information sought by him pertained to a Non-Security Tender hence exemption under the Section 8 (1) of the RTI Act, 2005 on the ground that disclosure of information could affect the sovereignty, integrity and security of the nation was untenable. In its written submission dated 27.06.2017, the Complainant raised 04 questions primarily relating to whether PIO, ISP- Nashik showed deemed refusal u/s 7 (2) and deliberately provided delayed response after 50 days violating Section 7 (1), whether exemption u/s 8 (1) was properly quoted and brief reason as to how it was applicable as mandated u/s 7 (8) (i) r/w section 19 (5), whether PIO-ISP Nashik allowed request for inspection u/s 2 (j) (i) when demanded and whether FAA-ISP Nashik adjudicated First Appeal dated 31.08.2016. It was also stated that although FAA had offered inspection but because of his repeated directions to stonewall information in the face of CIC orders, directions and breaching natural justice, he was reluctant to take inspection. However, vide his written submission dated 28.07.2017, the Complainant submitted that at present he was interested in receiving information on point no. 4 only of his RTI application. In its reply, the Respondent submitted that issues pertaining to tender no. 7 were raised by the Complainant in the present RTI application and were already dealt with in a detailed manner during the previous hearings of the Commission in File Nos.
CIC/MP/C/2016/000108 dated 28.10.2016, CIC/MP/C/2016/000111-BJ dated 10.02.2017 and 28.04.2017 and CIC/MP/C/2016/000171 dated 10.02.2017 and 28.04.2017. Furthermore, in its written submission dated 22.07.2017 as well, the CPIO and Manager (HR), ISP, Nashik stated that matter regarding Tender No. 07/NCB/ReNT-p/2015-16 dated 06.04.2015 was disposed off in CIC decision in case No. CIC/MP/C/2016/000108 dated 28.10.2016 by IC Manjula Prasher and information was provided vide letter dated 26.11.2016. It was also stated that the matter of case no. CIC/MP/C/2016/000108 was also taken up in CIC/MP/C/2016/000111-BJ dated 10.02.2017 and 28.04.2017. The Respondent further submitted that all information was provided for the aforementioned tender vide letter dated 28.02.2017 in CIC order CIC/MP/C/2016/000171 dated 10.02.2017 and vide letter dated 08.04.2017 containing 74 pages. It was explained that the Complainant was also asked to visit ISP, Nashik Road for necessary inspection of documents, records, etc. regarding Tender No. 07/NCB/ReNT-p/2015-16 under Section 2 (j)(i) of the RTI Act, 2005 for his satisfaction, but he had neither visited but was still resorting to filing complaints. It was therefore stated that the issues related to Tender No. 07/NCB/ReNT-p/2015-16 had already been heard, decided and disposed off by the Commission in the earlier three cases. During the hearing it was again re-iterated that vide letter dated 08.04.2017, information in 74 pages was already provided to the Complainant in compliance with the earlier orders of the Commission. While acknowledging the receipt of the afore-mentioned reply containing 74 pages of documents, the Complainant argued that incorrect and misleading information was provided and that copy of test report as sought in point 4.2 of the RTI application was not supplied. In its reply, the Respondent submitted that test reports referred to in point no. 04 of the RTI application pertained to a third party and hence could not be provided to the Complainant. It was also stated that primarily the queries of Complainant were interrogatory in nature, yet they had supplied all information available with them vide the aforementioned letter. It was also submitted that the Complainant had filed multiple RTI application on similar issues which was disproportionately diverting their resources and adversely affecting their daily operations. On a query from the Commission regarding the reasons for not deciding the First Appeal, the Respondent explained that they were not in receipt of the First Appeal. The Complainant referred to the decision of the Commission in CIC/MP/C/2016/000144, Complaint No. CIC/MP/C/2016/000170 and Appeal No CIC/MP/A/2016/001279 dated 09.02.2017 to submit that in Complaint No. CIC/MP/C/2016/000170, the Commission had recommended the competent authority to advise the CPIOs and the FAAs concerned to ensure issuing speaking, reasoned and point wise responses to the RTI applications in future. It was also stated that in Appeal No CIC/MP/A/2016/001279, the Commission, had held as under:
"The Commission, therefore, advises the present CPIO and the FAA to ensure that point wise, reasoned and speaking orders are issued in each case and the sections of the RTI Act quoted while denying information are duly justified by explaining as to how a particular section is applicable to denial of information"
As per the facts available on record and the submissions made by both the parties, the Commission observed that there was a delay in providing a response against the RTI application which was in violation to Section 7 (1) of the RTI Act, 2005. However, as per the documents available on record, it was observed that information sought during the hearing on point no. 04, pertained to test certificate on the material supplied against the tender no. mentioned therein which was a third party information and no larger public interest warranting disclosure of information was demonstrated by the Complainant. The Commission expressed its displeasure on the casual and callous approach adopted by the respondent in responding to the RTI application. It was felt that the conduct of respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
FINAL DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, it is evident that reply was not provided within the timeframe stipulated within the provisions of the RTI act, 2005, which is a grave violation of the provisions of the Act. The Commission, instructs the CPIO to show-cause why action should not be taken under the provisions of the Act for this misconduct and negligence. The Commission therefore, directs the Respondent, CPIO, ISP-Nashik to 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.
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 CMD, SPMCIL is instructed once again to ensure that the provisions of the RTI Act, 2005 are meticulously complied with in letter and spirit.
The Commission also instructs the Respondent to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Complaint stands disposed with the above direction.
Note: Subsequent to receipt of the reply to the show cause notice dated 07.08.2017 from the CPIO and Manager (HR), ISP, Nasik, he Commission hereunder pronounces its decision in the matter In the reply to the show cause notice dated 07.08.2017, it was stated that the information sought by the Complainant was provided several times and heard by the Commission on three occasions and disposed off the matter after receipt of the explanation from them. It was admitted that during March 2016 to August 2016, the RTI applications were not dealt properly including proper maintenance of applications and providing information within the time frame by Shri S.V. Lokhande, CPIO. It was explained that the CPIO was sick and was not attending his duties frequently and information sought from the user departments were either not provided or delayed. In such circumstances, certain RTI applications including the instant one during the above period were not attended in time. Since the CPIO was frequently absent from duty due to ill health, certain applications were not replied due to oversight. However, the explanation of CPIO was sought and action as deemed fit would be initiated. Furthermore as advised, the SPMCIL competent authority had decided to convene periodic conference/ seminars and accordingly a two day seminar was organised on 1st and 2nd August, 2017 at ISP, Nashik. Thus, it was stated that in view of the above, a point wise reply was already furnished to the applicant on 22.07.2017 and 04.03.2017. Thus, it was requested not to penalise in the matter on humanitarian and medical grounds which was prayed in other hearings as well for the RTI applications for the period between March, 2016 to August, 2016. It was assured that ISP would ensure that all RTI cases shall be complied in due time and as per the guidelines of the RTI Act, 2005.
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 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 Commission also observed that the Hon'ble High Court of Delhi in the matter of R.K. Jain v. V.P. Pandey, CPIO, CESTAT, New Delhi in W.P. (C) No. 4785/ 2017 dated 10.10.2017 adjudicated an order of the Commission dated 17.04.2017 whereby the Respondent was cautioned to exercise due care in future and to ensure that correct and complete information is furnished to the RTI applicants. It was decided that:
"2. The grievance of the petitioner is that although the CIC had accepted that there was a delay in providing the necessary information to the petitioner, the CIC had not imposed the penalty as required under Section 20(1) of the Right to Information Act, 2005. It is well settled that imposing of the penalty is a discretionary measure. In Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 a division bench of this Court had considered the question whether the levy of penalty was discretionary and held as under..........
3. In this case it is apparent that the CIC had in its discretion considered that a order cautioning the CPIO would be sufficient. This Court is not inclined to interfere with such exercise of discretion."
Furthermore, the Hon'ble High Court in the matter of R.K. Jain v. CIC and Anr. in W.P.(C) 4152/2017 dated 10.10.2017 had held as under:
"5. The question whether the CIC had the discretion to restrict the penalty or whether penalty as provided under Section 20 of the Act is mandatory, is no longer res integra. The said question was considered by a Division Bench of this Court in Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 and the relevant extract of the said decision is set out below....
6. In view of the above, this Court finds no reason to interfere with the discretion exercised by the CIC. The petition is, accordingly, dismissed."
A reference can also be made to the judgement of the Hon'ble High Court of Delhi in titled Ankur Mutreja v. Delhi University in LPA 764/2011 dated 09.01.2012 wherein it was held as under:
"a) the Act does not provide for the CIC to, in the penalty proceedings, hear the information seeker, though there is no bar also there against if the CIC so desires;
b) that the information seeker cannot as a matter of right claim audience in the penalty proceedings which are between the CIC and the erring information officer;
c) there is no provision in the Act for payment of penalty or any part thereof imposed/recovered from the erring information officer to the information seeker;
d) the penalty proceedings are akin to contempt proceedings, the settled position wherein is that after bringing the facts to the notice of the Court, it becomes a matter between the Court and the contemnor and the informant or the relator does not become a complainant or petitioner in contempt proceedings."
The aforementioned decision was also relied upon and affirmed by the Hon'ble High Court of Delhi in its decision in Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 wherein it was held as under:
"8...........................The information seeker has no locus in the penalty proceedings, beyond the decision of the complaint/appeal and while taking which decision opinion of default having been committed is to be formed, and at which stage the complainant/information seeker is heard.
9. ............................ In the context of the RTI Act also, merely because the CIC, while deciding the complaints/appeals is required to hear the complainant/information seeker, would not require the CIC to hear them while punishing the erring Information Officer, in exercise of its supervisory powers."
ADJUNCT DECISION Keeping in view the facts of the case and submission made by both the parties as also the reply to the show cause notice furnished by the Respondent, no further intervention of the Commission is warranted in the matter. The show cause notice is dropped.
The Respondent is however, cautioned to exercise due care in future to ensure that correct and complete information is furnished timely to the RTI applicant(s) as per provisions of the Act failing which penal proceedings under Section 20 shall be initiated.
िबमल जु का)
Bimal Julka (िबमल का
सूचना आयु )
Information Commissioner (सू
Authenticated true copy
(अिभ मािणत स ािपत ित)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 17.12.2018
Copy to:-
1. The Secretary (EA), Department of Economic Affairs, Ministry of Finance, Room No.130, North Block, New Delhi.
2. The Chairman & Managing Director, SPMCIL, Corporate Office, 16th Floor, Jawahar Vyapar Bhavan, Janpath, New Delhi-110 001(with the instruction to consistently organise sensitization and awareness programmes in respect of the implementation of the RTI Act, 2005.)