Central Information Commission
D Shekhar vs Ut Of Andaman & Nicobar on 15 April, 2021
Author: Uday Mahurkar
Bench: Uday Mahurkar
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
निकायतसंख्या / Complaint No. CIC/UTOAN/C/2020/125063-UM
Mr. D Shekhar
....निकायतकताग/Complainant
VERSUS
बनाम
CPIO,
O/o Municipal Council, Port Blair,
UT of Andaman & Nicobar Island - 744101
.... प्रनतवािीगण /Respondent
Date of Hearing : 12.04.2021
Date of Decision : 15.04.2021
Date of RTI application 12.03.2020
CPIO's response Not on record
Date of the First Appeal Not on record
First Appellate Authority's response Not on record
Date of diarized receipt of Complaint by the Commission 02.06.2020
ORDER
FACTS The Complainant vide his RTI application sought information on the following points:-
Page 1 of 8Please refer your letter No. 78/EE-II/SWM/MC/19-20-283 dated 28.02.2020 and request you to kindly allow me to inspect the following toilet block under Section 23 (1) of RTI Act, 2005.
1. Sl. No. 56 W. No. 12 image w. 12-2 Mazar Mandir Dargah Port Blair (PT).
2. Sl. No. 59-12, W-12-5 GEL Church Dhoood Line P/B.
3. Sl. No. 104-22 W-22-6 RDS Crusher plant Briji Ginj.
4. Sl. No. 86-19 W-19-6 Grave Yard, opposite to Prothrapur GSSS Prothrapur, Port Blair, South Andaman.
Dissatisfied due to non-receipt of any response from the CPIO, the Complainant approached before Commission with the request to take appropriate action under section 18 (1) (c) & 20 of RTI Act.
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Absent;
Respondent: Absent.
The Complainant as well as the Respondent remained absent during the hearing. Ms. Kalyani, Network Engineer, studio at NIC Port Blair confirmed their absence. The Commission was under intimation by the Complainant that he would be unable to attend the hearing due to personal reasons. No intimation was received from the Respondent's side and despite prior intimation neither the CPIO nor any representative from the Municipal Council appeared before the Commission for attending the hearing through VC. As per track consignment, the notice of hearing in all the matters listed for hearing today has been delivered to Port Blair, HQ on 05.04.2021. Moreover, no reply was furnished by the CPIO as per Section 7(1) of the RTI Act, 2005 within the stipulated time frame as per the provisions of the RTI Act, 2005.
It is however noted by the Commission that there has been gross negligence and neglect in handling the RTI matters in the Public Authority which has been consistently commented adversely by the Commission from time to time.
The Commission felt that correct and timely response is the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this Page 2 of 8 context, the Commission referred to the decision 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 Complainant, 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 Page 3 of 8 ".....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.
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
Furthermore, the Commission also referred to the OM No. 1/32/2007-IR dated 14.11.2007 wherein while prescribing for creation of a nodal authority for dealing with RTI applications, it was stated as under:
"It is, therefore, requested that all public authorities with more than one PIO should create a central point within the organization where all the RTI applications and the appeals addressed to the First Appellate Authorities may be received. An officer should Page 4 of 8 be made responsible to ensure that all the RTI applications/ appeals received at the central point are sent to the concerned Public Information Officers/ Appellate Authorities, on the same day. For instance, the RTI applications/ appeals may be received in the Receipt and Issue Section/ Central Registry Section of the Ministry/ Department/ Organization/ Agency and distributed to the concerned PIOs/ Appellate Authorities. The R&I/CR Section may maintain a separate register for the purpose. The Officer-in-charge/ Branch Officer of the Section may ensure that the applications/ appeals received are distributed the same day."
The High Court of Himachal Pradesh in the matter of Block Development Officer, Paonta Sahib vs. State Information Commission and Anr., CWP No. 6072 of 2012 dated 27.06.2018 held as under:
"9. It is vehemently urged by learned counsel for the petitioner that the impugned order suffers from vice of arbitrariness and, therefore, should be quashed and set aside. It was further argued that the petitioner on receipt of the application had transferred it to the concerned authorities and, therefore, there was no lapse on his part. He would also urge that the petitioner did not know the intricacies of the RTI Act and, therefore, he could not have been penalized.
10. I find no merit in the contention put-forth by the petitioner. It is more than settled that ignorance of law can be no excuse. Once the petitioner is designated as PIO, then all the more he is deemed to have knowledge and even otherwise the least that was required of him was to have acquainted himself thoroughly with the provisions of the RTI Act. Therefore, the explanation as sought to be put-forth by the petitioner at this stage clearly reflects the lackadaisical attitude of the petitioner. The only reasonable explanation for the cause of delay can be accepted and not lame excuses."
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.
Page 5 of 8The 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.
DECISION:
Keeping in view the facts of the case and the submissions available on record and in the light of the utter neglect and irresponsiveness in dealing with the RTI applications, the Commission directs the Secretary, PBMC to review the whole mechanism of dealing with RTI applications and evolve a robust and effective system of replying to such applications within the stipulated time period as per the provisions of the RTI Act, 2005. In large number of cases dealt with by the Commission from time to time, it had been consistently advised to the Public Authority to re- organise and systematize its RTI / Grievance Redressal Mechanism but no satisfactory improvement had been observed, so far.
The Commission further observed that the centralized process of receiving the RTI applications and transferring the same to the concerned department is not streamlined and is far from satisfactory in Municipal Council, Port Blair. Therefore, taking strong exception to the flagrant violation of the provisions of the RTI Act and its spirit as also the instructions issued by the DoP&T from time to time, the Commission observes that there is urgent need to evolve a robust and effective RTI mechanism to ensure that correct and timely information is provided to the information seekers.
In the absence of the Respondent despite prior intimation, the Commission took serious note of the gross callousness and neglect on the part of the CPIO, Municipal Council, Port Blair, in not responding to the RTI applications within the stipulated time period thereby disrespecting the provisions of the RTI Act, 2005 in letter and spirit. The Commission therefore directs the concerned CPIO to provide the information as sought in the RTI applications and show-cause as to why penal action as per Section 20(1) of the RTI Act, 2005 should not be taken under the provisions of the Act for this misconduct and negligence within a period of 15 days from the date of receipt of this order failing which it shall be presumed that he has nothing to say and the Commission would initiate penal proceedings in accordance with the provisions of the Act. The Page 6 of 8 First Appellate Authority is instructed to forward the reply thus received from the concerned CPIO and ensure that the aforementioned order is strictly complied within the period stipulated hereinabove.
It has been observed by the Commission that the Respondent of the Municipal Council, Port Blair has repeatedly remained absent in the hearing of Second Appeals that have been listed before the Commission under the RTI Act, 2005. Not only the absence of the CPIO has occurred on end number of occasions but the CPIO has repeatedly failed to intimate the Commission about their absence in advance. Moreover, the CPIO rarely replied to the RTI Applications of the Applicants. This amounts to complete disrespect for the RTI Act, 2005 on the part of the Municipal Council and cannot be put up with because the conduct of the CPIO and by extension of the Municipal Council shows that the Council has scant respect for the objectives of transparency and accountability in governance as enshrined in the RTI Act, 2005. Looking to this extraordinary situation the Commission directs the Secretary, PBMC, Port Blair, to remain physically present in the next hearing along with the CPIO and explain the conduct of the Municipal Council in this matter.
The DR is instructed to fix another short date of show cause hearing in the matter after receipt of show-cause reply from the concerned PIO, Municipal Council, Port Blair. Notice of next date of show cause hearing should also be sent to the Secretary, PBMC, Port Blair, for his/her physical presence during the hearing, as directed above.
(Uday Mahurkar) (उिय माहूरकर) (Information Commissioner) (सूचना आयुक्त) Authenticated true copy (अभिप्रमाणित एवं सत्यापित प्रतत) (R. K. Rao) (आर.के. राव) (Dy. Registrar) (उप-पंजीयक) 011-26182598 / [email protected] दिनांक / Date: 15.04.2021 Page 7 of 8 Copy to:-
1. Secretary, PBMC, Port Blair Municipal Council, Andaman and Nicobar Islands, Mohanpura, Indira Bhawan, Port Blair-744101 (for information and necessary action).Page 8 of 8