Central Information Commission
Bipin Batra vs National Board Of Examinations on 27 May, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/NBDOE/A/2019/600161-BJ- FINAL
Dr. Bipin Batra
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
National Board of Examinations,
Ansari Nagar, Mahatma Gandhi Marg (Ring Road),
New Delhi - 110029
... ितवादीगण /Respondent
Date of Hearing : 22.04.2019/20.05.2019/23.05.2019
Date of Decision : 22.04.2019/21.05.2019/27.05.2019
Date of RTI application 24.10.2018
CPIO's response 19.11.2018
Date of the First Appeal 20.11.2018
First Appellate Authority's response 03.01.2019
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Commission in its earlier order dated 22.04.2019 in Appeal No.(s) CIC/NBDOE/A/2018/611376-BJ + CIC/NBDOE/A/2018/633177-BJ+ CIC/NBDOE/A/2019/600161-BJ-INTERIM, held as under:
"Keeping in view the facts of the case and the submissions made by the Respondent, the Commission adjourned the hearing in all these matters and fixed another date i.e. on 30th April, 2019 at 01.15 p.m. to resume the hearing. The adjourned date of hearing was informed to the Respondent during the hearing who acknowledged its communication in writing. The Respondent was directed to ensure that its written replies were delivered to the Appellant within the said period".
The DR is directed to fix another date of hearing in all these matters on 30th April, 2019 at 01:15 p.m. Page 1 of 13 Note: Subsequently, the Dy. Registrar, vide its e-mail dated 25.04.2019 fixed the hearing on 30.04.2019 which was further postponed to 20.05.2019 as IC (BJ) had to attend a meeting for the selection of State Information Commissioner, Maharashtra convened by the State Government of Maharashtra.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Bipin Batra along with Mr. Tarunvir Singh Khehar and Mr. Vishal Tripathi; Respondent: Capt. K. Paul James, Dy. Dir. (Admn.) & CPIO and Mr. Waize Ali Noor, Advocate;
The Appellant referred to his RTI application and submitted that he was not in receipt of any satisfactory response, till date. In its reply, the Respondent produced a copy of their written submission dated 17.05.2019 wherein while re-iterating their earlier written submission dated 16.04.2019, the Respondent provided a copy of all the correspondences made with the Appellant in the matter, till date. While acknowledging the receipt of the written submission from the Respondent, he sought time to peruse the records and prayed for a short adjournment in the matter.
During the hearing, the Respondent handed over a copy of its written submission dated 17.05.2019 wherein while re-iterating the response of the CPIO/ FAA, it was stated that the Departmental Vigilance Inquiry against the Appellant was underway in November, 2018 and hence the desired information was not provided u/s 8 (1) (j) / (h) / 2(f) of the RTI Act, 2005. A set of correspondences were also enclosed for kind reference.
The Commission observed that in the earlier decision taken 22.04.2019, it had specifically held as under:
"the Commission adjourned the hearing in all these matters and fixed another date i.e. on 30th April, 2019 at 01.15 p.m. to resume the hearing......... The Respondent was directed to ensure that its written replies were delivered to the Appellant within the said period."
However, despite the aforementioned direction, the Respondent provided the copy of their written submission to the Appellant during the hearing only as a result of which the Commission was compelled to accept the plea of the Appellant.
INTERIM- II DECISION Keeping in view the facts of the case and the submissions made by both the parties, the Commission adjourned the hearing in the matter and fixed another date i.e. on 23rd May, 2019 at 01.30 p.m. to resume the hearing. The adjourned date of hearing was conveyed to both the parties during the hearing who acknowledged its information in writing.
The DR is directed to fix another date of hearing in the matter on 23rd May, 2019 at 01:30 p.m. Note: Subsequently, the DR vide its e-mail dated 21.05.2019, fixed 23.05.2019 as the next date of hearing in the matter.
HEARING:
Facts emerging during the hearing:
The following were present:Page 2 of 13
Appellant: Mr. Bipin Batra along with Mr. Tarunvir Singh Khehar and Mr. Vishal Tripathi; Respondent: Capt. K. Paul James, Dy. Dir. (Admn.) & CPIO and Mr. Waize Ali Noor, Advocate;
Both the parties were present at the hearing. The Appellant's representative reiterated the contents of the RTI application and stated that false and misleading replies were provided by the Respondent on all the points while citing Section 2(f) of the RTI Act, 2005. With regard to point nos. 01 to 04 of the RTI application, it was submitted that the Appellant was seeking information in his own case and the same should have been furnished to him within the stipulated time frame as prescribed under the RTI Act, 2005. He further alleged that the information/documents sought by the Appellant was deliberately and malafidely denied by the Respondent without any justification. As regards points 05 & 06 of the application, it was submitted that the Appellant had specifically sought for the total number of complaints received by the President, NBE, against the Assistant/Deputy Director Administration during January to October, 2018 and action taken thereon but the same was denied on frivolous grounds. As regards point no. 07, it was stated that the date of communication of correspondences should also have been disclosed. With regard to point no. 08, it was submitted that he had specifically sought for the copy of orders passed by the First Appellate Authority in his own case which was denied by the Respondent. Furthermore, for point no. 09, it was articulated that the expenses incurred by the Respondent Public Authority on newspaper advertisement which was an expenditure incurred by the Public Authority during the period August to October, 2018 with subject- matter of each advertisement and name of the newspaper where they were published was also wrongly denied citing Section 2(f) of the RTI Act, 2005. As regards service of the correspondence, it was alleged that the Respondent malafidely withheld the delivery of letters and peon book was concocted as the service delivery boys' children were employed by the Respondent in its office and therefore, fictitious records of peon book were maintained. In its reply, the Respondent submitted that a suitable point-wise response was provided to the Appellant vide their letter dated 19.11.2018. The Respondent further relied on its written submission. During the hearing, the Respondent handed over a copy of the written submission dated 23.05.2019, wherein with regard to point nos. 01 to 07 and 09, it was submitted that the Hon'ble Courts have held time and again that the RTI Act did not cast an obligation upon a Public Authority to collect or collate such information which otherwise was not mandated by law. The Hon'ble Courts have further held that a Public Authority was also not required to furnish information which requires drawing of inferences, making of assumptions and/or creation of information which was not available in material form. The information therefore sought by the Appellant did not qualify as "information" under Section 2(f) of the RTI Act, 2005. In addition, the Hon'ble Courts have deprecated the practice of making impractical demands or directions under the RTI Act for disclosure of all and sundry information as the same would adversely affect the efficiency of the administration. In support of their contention, the Respondent referred to the decisions cited below:-
(1) Central Board of Secondary Education and Anr. Vs. Aditya Bandopadhyay and Others (2011) 8 SCC 497 (2) Mr. Subrata Guha Ray vs. CPIO, Jt. Commissioner Directorate General of Vigilance- File No. CIC/SB/A/2016/001025/CBECE-BJ Dated 03.03.2017 (3) Ms. K.R. Rohini vs. CPIO, CRM Department, LIC of India, Divisional Office, Shimoga Karnataka-File No. CIC/LICOI/A/2017/314367-BJ dated 28.11.2017 (4) Aparna Nitin Sahasrabudhe vs. CPIO, O/o Pay and Accounts Office, Central Board of Excise and Customs and Another-File No. CIC/CBECE/A/2017/188597-BJ dated 14.08.2017 With regard to point nos. 05 & 06, it was submitted that the Hon'ble Courts have held time and again that the information with regard to the performance of an employee / officer of an organization falls Page 3 of 13 under the expression "personal information" the disclosure of which had no relationship to any public activity or public interest. Also, the disclosure of such information would cause unwarranted invasion of privacy of that individual and were therefore exempted under Section 8(1) (j) of the RTI Act, 2005. A reference was made to the relevant judgments of the Courts:-
(1) Girish Ramchandra Deshpande vs. Central Information Commissioner & Others-SLP (C) No. 27734/2012- judgment dated 03.10.2012 (2) Union Public Service Commission vs. R.K. Jain-LPA No. 618/2012 dated 06.11.2012 (Division Bench) In support of their contention, the Respondent further referred to the decision of the Commission in the case of Shri Manjit Singh vs. CPIO, Central Vigilance Commission in decision no.
CIC/SB/A/2016/900433 Dated 08.05.2017 and Mr. Prabhu Dayal Beniwal vs. CPIO, O/o the Commissioner of Central Excise, Customs & Service Tax in File No. CIC/CBECE/A/2017/182212- BJ dated 11.08.2017 and C. Nagarajan vs. CPIO, Department of Post in File No. CIC/POSTS/A/2018/159728 dated 14.01.2019. A reference was also made to Para 63 and 67 of the decision of the Hon'ble Supreme Court in the case of Central Board of Secondary Education and Anr. Vs. Aditya Bandopadhyay and Others (2011) 8 SCC 497; Para 10 of the decision of the Commission in the matter of Mr. Subrata Guha Ray vs. CPIO, Jt. Commissioner, Directorate General of Vigilance- File No. CIC/SB/A/2016/001025/CBECE-BJ Dated 03.03.2017; Para 6 of the decision of the Commission in the case of Ms. K.R. Rohini vs. CPIO, CRM Department, LIC of India, Divisional Office, Shimoga Karnataka in File No. CIC/LICOI/A/2017/314367-BJ dated 28.11.2017. Furthermore, Para 12 & 13 of the decision of the Hon'ble Supreme Court in the case of Girish Ramchandra Deshpande vs. Central Information Commissioner & Others-SLP (C) No. 27734/2012- judgment dated 03.10.2012 was referred. Furthermore, Para 09 of the decision of the Hon'ble High Court of Delhi at New Delhi in the case of Union Public Service Commission vs. R.K. Jain-LPA No. 618/2012 dated 06.11.2012 (Division Bench) was referred in support of their contention. It was further articulated that the Appellant had been harassing the Respondent Public Authority by filing number of RTI applications on similar subjects and burdening them in answering these applications at the cost of the regular conduct of the institution. It was explained that invariably the replies filed by the Respondent authority were malafidely not accepted and even the e-mails sent by them bounced back. The matter had been considered by the High Court / CAT where it is sub-judice. The next date of hearing before the CAT is on 22.07.2019. The Appellant's representative contested the above averments of the Respondent and submitted that the information sought by his representative was pertaining to his own case and he required above information for substantiating his case before the Court of Law. It was further alleged that the information sought had been deliberately delivered at their address when he was not present at his residence. In support of his contention, the Appellant's representative referred to the decision of the Hon'ble High Court of Delhi at New Delhi in the case of J.P. Agrawal vs. Union of India & Ors. decision dated 4th August 2011 and several other decisions of the Commission in the case of Dr. Rajesh Kumar vs. Dr. Shardul Chaubey, Central Public Information Officer and Assistant Registrar, Rajiv Gandhi South Campus, Banaras Hindu University decision dated 5th October, 2018 and Dr. Sudakar Singh Chauhan vs. Mr. G. R. Samantara, CPIO, NIT, Kurukshetra, Haryana in Appeal No. CIC/NITKS/A/2017/130217-BJ dated 22.06.2018, etc. The Commission was also in receipt of a written submission from the Appellant dated NIL wherein while reiterating the contents of the RTI application, reply/order of the CPIO/FAA, it was submitted that the information sought had been wrongly denied by the Respondent citing Section 2(f) of the RTI Act, 2005. He further relied upon the decision of the Hon'ble High Court at New Delhi in the matter of Shobha Vijender vs. CIC, Sher Singh Rawat vs. CIC, B. S. Mathur vs. PIO, Bhagat Singh vs. CIC, as also the decision of the Commission in File No. CIC/SM/C/2011/000117/SG/13230 and Page 4 of 13 the decision of the Hon'ble Supreme Court in the matter of Subramanian Swamy vs. Union of India, in a challenge to Sections 499 and 500 of the Indian Penal Code wherein it was held that "the reputation of an individual is a basic element of Article 21" etc. etc. Hence, it was inter-alia prayed to the Commission to direct the Respondent to supply the desired information as sought in the RTI application and to impose penalty upon the Respondents as also to grant compensation towards harassment caused to him due to Respondents and to pass orders instituting an Inquiry into the violations of the RTI Act by the Respondent Public Authority, etc. The Commission referred to the definition of information u/s 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."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), 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 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 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 Page 5 of 13 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."
The Commission referred to the judgment of the Hon'ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been held as under:
"14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy."
With regard to providing a clear and cogent response to the Appellant, the Commission referred to the decision of the Hon'ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
" 7"it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
8.............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure."
The Hon'ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed ".....that a CPIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information. The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow".
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only."
Page 6 of 13Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
The Commission also made reference to the decision of the Hon'ble High Court of Bombay in the matter of Union of India v. Vishwas Bhamburkar, W.P.(C) 3660/2012 dated 13.09.2013 wherein the Court had in a matter where inquiry was ordered by the Commission observed as under:
"6............It is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever an information is sought and it is not readily available, a thorough attempt needs to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired information. Even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of the record. Unless such a course of action is adopted, it would be possible for any department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act."
With regard to information sought by the Appellant in his own case to substantiate his matter before the Court of Law, the Commission referred to the decision of the Hon'ble High Court of Delhi in Sudhiranjan Senapati vs. Union of India decided by the Hon'ble High Court of Delhi in W.P. (C) 7048/2011 dated 05.03.2013 which is relevant to the facts of the present case. It is observed that the Appellant in the present instance requires the information to defend himself in criminal proceedings before the concerned authority and that disclosure of information may facilitate the exercise of this right. The Hon'ble High Court of Delhi in its decision in Sudhiranjan Senapati had held as under:-
"12.1 It appears in that case the petitioner, who was being criminally prosecuted for having fraudulently reduced the quantum of excise duty to be paid by an assessee, while passing an adjudication order, had sought information with regard to: note sheets; correspondence obtaining qua the material in the file of the CBI; correspondence in the file of the CVC pertaining to the matter; and correspondence in the file of the Department of Vigilance, CBES.
12.2 A close perusal of the nature of information sought seems to Page 7 of 13 suggests that much of it may have been material collected during the course of investigation, the disclosure of which could have perhaps hampered the prosecution of the petitioner.
13. Therefore, in my view, in such like cases when, the State takes a stand the information cannot be disclosed; while dilating on its stand in that behalf, the State would necessarily have to, deal with the aspect as to how the information sought, is of such a nature, that it could impede prosecution. Much would thus depend, on the nature of information sought, in respect of which, a clear stand needs to be taken by the State, while declining the information. The burden in this regard is on the State [see B.S. Mathur Vs. Public Information Officer of Delhi High Court, 180 (2011) DLT 303]
14. With the aforesaid observations in place, the writ petition is allowed. The order of the CIC is set aside. The respondents will supply the information sought for by the petitioner within three weeks from today, after redacting names of officers who wrote the notes or made entries in the concerned files."
Furthermore, the Hon'ble High Court of Delhi in the matter of Union of India vs. D.N. Kar in W.P. (C) 4056 of 2008 and CM Nos. 7869 and 10885 of 2008 dated 14.09.2010, had held as under:
"11. In the considered view of this Court, the above submissions are misconceived. The Respondent is seeking information only about himself being included in the Agreed List. There is no question of the Department invoking the right to privacy of the Respondent to deny him information concerning him which is held by them. The apprehension that such information may tarnish the reputation of the Respondent is also misconceived. It is also the Respondent himself who is asking the information on the material on the basis of which his name was included in the "Agreed List". Moreover, the period during which the Respondent's name was included in the "Agreed List" has long come to an end. The period during which he was kept under surveillance is over. By disclosing to the Respondent the material on the basis of which his name was included in the Agreed List, there is no danger of, the purpose of placing him under surveillance, being defeated.
12. As regard inputs that might have been given to the Department by certain persons in a fiduciary capacity, this Court finds that the CIC has, in its impugned order dated 3rd April 2008, adequately accounted for such contingency. It has been directed by the CIC that the CPIO is free to withhold the names of the officials who might have provided critical inputs and recommended the inclusion of the Respondent's name in the Agreed List. Further, the CPIO has also been permitted by the CIC to withhold the name of the complainant, if any, in the matter.
13. This Court concurs with the view expressed by the CIC that if the Respondent feels that his name was wrongly included in the Agreed List for three years continuously and that such inclusion is indeed a stigma on his career and, therefore, he wishes to prove his innocence, he cannot be deprived of such an opportunity by withholding the material on the basis of Page 8 of 13 which his name was so included. Adequate safeguards have already been provided for by the CIC in its impugned order. In the circumstances, there can be no justification for the Petitioner to deny the Respondent the information sought by him."
With regard to information sought relating to disciplinary proceedings against the third party, the Commission referred to the decision of the Hon'ble Supreme Court of India in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 wherein it was held as under:
"13......The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right."
While relying on the aforementioned judgement of the Apex Court, the Hon'ble High Court of Delhi in the judgement of UPSC vs. R.K. Jain, LPA No. 618/2012 dated 06.11.2012 held as under:
".............the ratio of the dicta aforesaid of the Supreme Court is that the disciplinary orders and the documents in the course of disciplinary proceedings are personal information within the meaning of Section 8(1)(j) and the disclosure of which normally has no relationship to any public activities or public interest and disclosure of which would cause unwarranted invasion of the privacy of an individual."
The Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain such as expenses incurred by the Respondent Public Authority on advertisement etc. etc., should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo-motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act.
The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on: 21.05.2010), wherein it was held as under:
Page 9 of 13"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
The Hon'ble High Court of Bombay in the matter of Sayyed Education Society v. State of Maharashtra, WP 1305/2011 dated 12.02.2014 had held that public authorities are under a statutory obligation to maintain records and disseminate as per the provisions of the Section 4 of the RTI Act, 2005. The High Court in this respect, held as under:
"Needless to state that as observed by the Hon'ble Apex Court in paragraph No. 14 in the case of CBSE and Another (supra), Public Authorities are under an obligation to maintain records and disseminate the information in the manner provided under Section 4 of the RTI act. The submission of the petitioner that it is an onerous task to supply documents, therefore is required to be rejected. The Law mandates preserving of documents, supplying copies thereof to the applicant, in our view, cannot be said to be an onerous task."Page 10 of 13
Above all the Hon'ble Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015 had held as under:
"The ideal of 'Government by the people' makes it necessary that people have access to information on matters of public concern. The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for 'open governance' which is a foundation of democracy."
In this context, a reference can also be made to the OM No. 1/32/2007-IR dated 14.11.2007 issued by the DoP&T, wherein it was decided that all Public Authorities shall designate the First Appellate Authorities and publish their particulars along with the particulars of the PIO.
Furthermore, in this context a reference was also made to the OM no. No.1/6/2011-IR dated 15.04.2013 issued by the DoP&T pertaining to guidelines for the implementation of suo motu disclosures under Section 4 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 Page 11 of 13 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."
Moreover, 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 on the correctness of 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."
The Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. 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 Page 12 of 13 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 and in the light of above referred judgments, the Commission directs the First Appellate Authority to re-examine the matter and provide a clear, cogent and reasoned point-wise response to the Appellant as per the provisions of the RTI Act, 2005, within a period of 30 days from the date of receipt of this order.
The CPIO 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.
The Commission also instructs the Respondent Public Authority 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 Appeal stands disposed with the above direction.
(Bimal Julka) (िबमल जु का)
(Information Commissioner) (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 27.05.2019
Copy to:
1. The Secretary, Ministry of Health & Family Welfare, 'A' Wing, Nirman Bhawan, New Delhi-110011
2. The President, National Board of Examinations, Ansari Nagar, Mahatama Gandhi Marg, Ring Road, New Delhi - 110029
3. Dr. Anurag Agarwal, First Appellate Authority, National Board of Examinations, Ansari Nagar, Mahatma Gandhi Marg (Ring Road), New Delhi - 110029 Page 13 of 13