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Central Information Commission

Mr.Avdhesh Singh Bhadoriya vs Mcd, Gnct Delhi on 10 May, 2011

                      CENTRAL INFORMATION COMMISSION
                          Club Building (Near Post Office)
                        Old JNU Campus, New Delhi - 110067
                               Tel: +91-11-26161796

                                                Decision No. CIC/SG/A/2011/000217/11995Penalty
                                                               Appeal No. CIC/SG/A/2011/000217

Relevant Facts emerging from the Appeal

Appellant                            :      Mr. Avdesh Singh Bhadoria
                                            A - 17, Himgiri Enclave,
                                            Santnagar Buradi
                                            PIN - 110084

Respondent                           :      Mr. B.S. Yadav,

Deemed PIO & EE(B-II) Municipal Corporation of Delhi Office of the Superintending Engineer - II West Zone, Vishal Enclave, Rajouri Garden, New Delhi RTI application filed on : 11/11/2010 PIO replied : 13/01/2011 First appeal filed on : 12/12/2010 First Appellate Authority order : 07/03/2011 Second Appeal received on : 24/01/2011 Information Sought:

The appellant had filed a complaint about unauthorized construction in west zone on 18/10/2010 vide diary no. 9879. He had sought information about action taken on this.

Reply of the Public Information Officer (PIO) The information sought by the appellant through the RTI application does not fall under the Right to Information Act, 2005.

Reasons for First Appeal:

Information not supplied even after expiry of 30days.

Order of the First Appellate Authority:

The RTI application was in the form of the complaint and action taken which is not covered under RTI Act.

Ground of the Second Appeal:

Required information not supplied.

Relevant Facts emerging during the hearing held on 15/04/2011: The following were present Appellant: Mr. Avdesh Singh Bhadoria;

Respondent: Mr. K. C. Meena, Public Information Officer & SE-II;

"The PIO had given a completely irresponsible reply to the Appellant. The Appellant had sought information on action on his complaint for unauthorized construction and the PIO has stated that the Appellant has not sought any information. The First Appellate Authority Mr. C. R. Garg has also given a completely responsible decision since the Appellant had clearly sought information as defined under Section-2(f) of the RTI Act.

The Respondent states that he had sought the assistance of EE(B-II) Mr. B. S. Yadav for supplying the information. He also states that he has given reminders on 07/03/2011, 24/03/2011 and 08/04/2011 but has not been able to get any response."

Decision dated 15/04/2011:

The Appeal was allowed.

"The commission directs Mr. K. C. Meena, PIO to provide the information about the action taken on the complaint of the Appellant before 30 April 2011 in the following format:

Date on which         Name and designation Action            Date on which forwarded
Complaint             of                        taken        to
received              The officer receiving it.              Next officer/office.

*there will be as many rows as the number of officers who handled the complaint.

Attested photocopies of all letters and notings will be provided.

The issue before the Commission is of not supplying the complete, required information by the deemed PIO EE(B-II) Mr. B. S. Yadav within 30 days as required by the law. From the facts before the Commission it appears that the 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.

EE(B-II) Mr. B. S. Yadav will present himself before the Commission at the above address on 10 May 2011 at 02.30pm alongwith his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20 (1). He will also submit proof of having given the information to the appellant."

Relevant facts emerging during the showcause hearing on 10/05/2011: Appellant: Mr. Avdesh Singh Bhadoria;

Respondent: Mr. B.S. Yadav, Deemed PIO & EE(B-II) and Mr. T.P. Puri, Deemed PIO & AE(B-II);

Deemed PIO Mr. B.S. Yadav has submitted that the RTI application dated 11/11/2010 was received in the office of the PIO on 13/12/2010 and was marked to him on 14/12/2010. Mr. Yadav had forwarded the same to the AE(B) Mr. T.P. Puri on 14/12/2010 and further to Mr. Atul Kumar, JE(B) on 22/12/2010. A reply dated 13/01/2011 stating that "The information sought by the appellant through the RTI application does not fall under the Right to Information Act, 2005." The information as directed by the Commission on 15/04/2011 has been provided to the Appellant vide letter dated 25/04/2011.

The information provided to the appellant shamelessly states that no action has been taken since 26/10/2010 on the complaint given about unauthorized construction. This information could as well have been provided when the RTI application has been made and there appears to be no reason for not having provided the information. The Deemed PIO in the matter as per Section-5(4) of the RTI was Mr. B. S. Yadav, EE(B-II), Mr. B. S. Yadav is putting the blame on his juniors to whom he had marked the RTI Application.

Under Section 5(4) of the RTI Act only the PIO has been given the power to seek assistance from any other officer to provide information. From a reading of Section 5(5) of the RTI Act, it appears that the officer whose assistance is sought shall be treated as the PIO only for the purpose of Section 20 of the RTI Act and not for the purpose of Section 5(4) of the RTI Act. Therefore, the officer whose assistance is sought cannot transfer the liability of providing the information to another officer. Even if he did seek assistance, he would be the person responsible to provide the information on time and in case of default be liable for penalty under Section 20 of the RTI Act. Justification for the aforesaid may also be found in Section 2(j) of the RTI Act which stipulates that information sought by the Appellant must be held by or be in control of a public authority. The RTI Act does not name any specific officer who must have custody of the information sought. There is an administrative responsibility on the part of the PIO and/ or deemed PIO seeking further assistance to provide the correct and complete information in a timely manner, which cannot be shifted to a subordinate officer.

The Commission has noted that in the instant case, the PIO Mr. K. C. Meena, SE-II had sought the assistance of Mr. B. S. Yadav, EE(B-II) under Section 5(4) of the RTI Act. Mr. B. S. Yadav forwarded the RTI application to his junior offices who gave an irrelevant reply. The Commission rules that in such circumstances, notwithstanding the default on the part of the junior officers Mr. B. S. Yadav, EE(B-II) would be the deemed PIO for the purposes of Section 20 of the RTI Act and therefore, would be liable to be penalised. It is certainly the responsibility of the deemed PIO whose assistance has been to atleast look at the irresponsible and irrelevant reply is being sent to the Appellant. As the information finally provided shows MCD officers were not taking any action on the complaint of the Appellant since 26/10/2010 and did want to give this information to the Appellant. Mr. B. S. Yadav has given no reasonable cause for this and it is apparent to the Commission that information was not provided since the appellant may have been able to approach some senior officers for the neglect by the MCD officials to stop unauthorized construction.

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 reasonable is clearly on the PIO as per Section 19(5) of the RTI Act.

The RTI application was submitted on 11/11/2010 which was received by the Deemed PIO on 13/12/2010. Hence the proper information should have been provided to the Appellant before 13/01/2011 instead the correct infroamtion has been provided to the Appellant only after the order of the Commission on 25/04/2011. Since the delay in providing the information has been over 100 days and no reasonable cause has been offered for this delay by Mr. B. S. Yadav, Deemed PIO & EE(B-II) the Commission under Section-20(1) of the RTI act imposes the maximum penalty of `25000/- on him.

Decision:

As per the provisions of Section 20 (1) of the RTI Act 2005, the Commission finds this a fit case for levying penalty on Mr. B. S. Yadav, Deemed PIO & EE(B-II). Since the delay in providing the information has been over 100 days, the Commission is passing an order penalizing Mr. B. S. Yadav `25000/ which is the maximum penalty under the Act.

The Commissioner, Municipal Corporation of Delhi is directed to recover the amount of `25000/- from the salary of Mr. B. S. Yadav 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 Mr. B. S. Yadav and remitted by the 10th of every month starting from June 2011. The total amount of `25000 /- will be remitted by 10th of October, 2011.

Shailesh Gandhi Information Commissioner 10 May 2011 (In any correspondence on this decision, mention the complete decision number.) (RP) CC:

To, 1- Commissioner Municipal Corporation of Delhi Town Hall, Delhi- 110006

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