Central Information Commission
K Balu vs Bharat Heavy Electricals Limited ... on 13 October, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के यसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/BHELD/C/2023/610065
K BALU ....िशकायतकता /Complainant
VERSUS
बनाम
CPIO,
BHEL, BHEL House,
Siri Fort, New Delhi- 110049 ... ितवादीगण /Respondent
Date of Hearing : 03/10/2023
Date of Decision : 03/10/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from complaint:
RTI application filed on : 15/01/2022
CPIO replied on : 21/12/2022
First appeal filed on : 06/09/2022
First Appellate Authority order : 21/12/2022
Complaint dated : 22/02/2023
Information sought:
The Complainant filed an RTI application dated 15.01.2022 seeking the following information:
"The grievance submitted to the Union Government vide DHIND/E/2015/00106 and DHIND/E/2015/00108 was replied to by BHEL on the behalf of Union Government vide Ref No: AA/HR/IR/CPGRAMS dated 04/06/2015.1
Query No 1:
It has been stated in para 3 in the reply dated 04/06/2015 that we wish to intimate you that the position regarding your appointing authority has already been replied to you. The petitioner submits that for his representation dated 30/04/2012 regarding appointing authority addressed to the Director/HR was replied by BHEL /Tiruchi AGM/HR Mr. P Manoharan vide his reply dated 09/05/2012. The petitioner had not expected such a foolish reply from a senior officer from HR Department. Mr. Manoharan mentioned in his reply that the appointment order was issued to the petitioner by a Personnel officer (E1 Grade). This shows that BHEL /Tiruchi had a senior officer in HR Department who did not know about the appointing authority. If the reply dated 09/05/2012 by Mr. P Manoharan AGM/HR has been mentioned by Mr. Gopal Krishna Sinha DGM/HR regarding the petitioner's Appointing Authority, the petitioner will presume the Union Government had given such inappropriate and incorrect information to his grievance and proceed accordingly. Else kindly provide me a copy of the reply mentioned in para 3 of the reply dated 04/06/2015 by Mr. Gopal Krishna Sinha DGM/HR.
Query No 2:
In this reply, the petitioner's representation dated 03/04/2015 has been mentioned in the reply dated 04/06/2015, in which he requested to name the authority to whom he must approach if he wants to settle the issue by the way of out of court settlement. But it was replied as if he had requested for an out-of-court settlement. It has been stated in para 5 that your desire for an out-of-court settlement is irreconcilable with the allegations and insinuations made by you. Kindly provide me the list of allegations and insinuations made petitioner mentioned in the reply dated 04/06/2015 by Mr. Gopal Krishna Sinha DGM/HR.
Query No 3:
Copy of MOM of 483rd meeting of Board of Directors for the amendment to BHEL CDA Rules 1975 held on 07/09/2016.
Query No 4:
Kindly provide me with a copy of amendments to the Standing orders of the BHEL/Tiruchirappalli Unit after 07/09/2016.2
Query No 5:
Kindly provide me with a copy of amendments to the Standing Orders of the BHEL/Ranipet Unit after 07/09/2016.
A complaint regarding corruption in recruitment dated 07/03/2017 was submitted to the then Executive Director/BHEL/Tiruchirappalli Mr. R Rajamanohar. This complaint has been forwarded to BHEL Corporate Office.
Query No 6:
Kindly provide me the name of the official who disposed of the complaint dated 07/03/2017.
Query No7:
Date of disposal of the complaint dated 07/03/2017.
Query No 8:
Copy of the complaint dated 07/03/2017 received from BHEL/Tiruchirappalli with all noting.
Query No9:
Copy of the documents showing the incorrectness of the evidence furnished in the complaint dated 07/03/2017."
The CPIO furnished a reply to the complainant on 21.12.2022 stating as under:
"It is informed that the documents with respect to which the applicant has been seeking information are not traceable.
The CPIO has taken considerable time to extensively search for the related documents due to which there has been time lapse in disposing of the application."
Being dissatisfied, the complainant filed a First Appeal dated 06.09.2022. FAA's order dated 21.12.2022 held as under:
"I have considered the appeal filed by the appellant regarding non-receipt of the reply. It is observed that reply to the information sought by the appellant has already been provided by the CPIO along with the reasoned decision with respect to query 1 and 2 and therefore the appeal disposed of 3 accordingly with respect to queries 1 and 2. However, CPIO is advised to relook into queries 3 to 8 and inform the RTI applicant accordingly. Scan copy of the order of the CPIO is attached with this reply."
Feeling aggrieved and dissatisfied with the non-compliance of FAA's order, the Complainant approached the Commission with the instant Complaint.
Relevant Facts emerging during Hearing:
The following were present:-
Complainant: Not present.
Respondent: Shilpi Sikka, Manager (Law) & CPIO present in person.
The written submissions filed by the CPIO prior and post hearing of the instant matter are taken on record.
Further, the Complainant through a written submission dated 01.10.2023 recused himself from participating in the hearing session citing the following arguments -
"The appellant humbly submits that the CIC Ms. Saroj Punhani is biased towards the public authority. Hence, there is no use in attending the hearing scheduled on 03/10/2023.
Justification for my averment:
File No: CIC/BHELD/A/2021/608157 RTI Filed on : BHELD/R/E/20/00283 dated 15/12/2020 CPIO/BHEL/Ranipet replied on 29/12/2020, First Appeal filed on 03/01/2021 First Appeal disposed on 10/02/2021 Second Appeal filed on 06/03/2021 Written submission filed by the CPIO/BHEL/Tiruchi on 28/03/2022 Additional written submission filed by the CPIO/BHEL/Tiruchirappalli on 28/03/2022 CIC Ordered on 30/03/2022 File NO: CIC/BHELD/A/2021/613684 RTI Filed on : BHELD/R/E/20/00283/1 dated 15/12/2020 CPIO/BHEL/Tiruchirappalli replied on 07/01/2021 First Appeal filed on 18/02/2021 First Appeal disposed on 19/03/2021 4 Second Appeal filed on 01/04/2021 CIC Ordered on 21/04/2022 In file No: the CPIO/BHEL/Ranipet and CPIO/BHEL/Tiruchirappalli were arrayed as the respondents to favour the public authority.
In file No: CIC/BHELD/A/2021/613684, the fact that the second appeal was filed on 21/04/2021 was suppressed to favour the public authority.
The CPIO/BHEL/Ranipet vide his additional written statement had nominated the CPIO of BHEL/Tiruchirappalli to represent. Whereas in the order of CIC in file no: CIC/SH/C/2015/000399, the CIC had barred the transfer of RTI Application u/s 6(3) within the same public authority. In the second appeal filed in CIC/BHELD/A/2021/608157, the complainant mentioned this CIC order. This CIC had not considered this point to favour the public authority.
The CPIO had invoked the exemption u/s 8(1)(a) from disclosure of requested information.
Further, the exemption claim of the CPIO was admitted by the first appellate authority. In the written submission filed by the CPIO on 28/03/2022 just two days earlier than the hearing date of 30/03/2022, the reiterated his exemption claim u/s 8(1)(a). In spite no suggestion was put forth by the CPIO regarding the applicability of section 8(1)(e), the CIC voluntarily considered the applicability of section 8(1)(e) to favour the public authority.
The complainant submits that if the CIC is admitting the applicability of section 8(1)(e) during the hearing, then proper time should be given to the complainant for submission of the written statement. Unfortunately, CIC had not allowed such an opportunity to favour the public authority.
The complainant submits in the Supreme Court Order cited in CIC order in file no: CIC/BHELD/A/2021/608157 that the concept of fiduciary was explained. There is no fiduciary relationship exists in the information requested from the public authority. The CIC had inappropriately cited the Supreme Court order to favour the public authority.
File NO: CIC/BHELD/A/2021/607267 5 RTI Filed on : BHELD/R/E/20/00241 dated 09/10/2020 filed on 14/10/2020- 16 information items Query 7 and 16 were transferred to the CPIO/BHEL/Tiruchirapalli vide BHELD/R/E/20/00241/1 CP CPIO/BHEL/Corporate Office replied on 18/11/2020 CPIO/BHEL/Tiruchirappalli replied on 20/11/2020 First Appeal against the order of the CPIO/BHEL/Corporate Office and CPIO/BHEL/Tiruchirappalli filed on 15/12/2020 First Appeal disposed on 25/01/2021 The second Appeal with a limited prayer to put the recruitment information in the public domain was filed on 01/03/2021 CIC Ordered on 30/03/2022 The complainant wants to know which rule permits to array of two or more CPIOs for the second appeal against one CPIO's order. The lack of understanding of the RTI Act may be the reason for such confusion.
The CIC had not disposed of this second appeal on merits to favour the public authority. The CIC decision without considering the second appeal prayer ridicules the information-seeking procedure under the RTI Act.
It is unfortunate to state that the CIC decision reveals the fact that the CPIO's decision, first appeal and First Appeal order were not been perused by the CIC to favour the public authority.
The CPIO had furnished incorrect information on putting recruitment information in the public domain. The candidates who applied for recruitment can only view their application status.
Therefore, no recruitment information is available in the public domain. The CIC had taken the incorrect information furnished by the CPIO without any verification to favour the public authority thereby weakening the purpose of the RTI Act to contain corruption.
For the reasons stated above the CIC is biased towards the public authority thereby weakening the purpose of the RTI Act to contain corruption. In this circumstance attending the hearing is not warranted."6
The CPIO submitted that in compliance with FAA's order, a revised reply was provided to the Complainant on 21.01.2023, relevant extracts of which are reproduced below for ready reference -
"3. The information sought by the applicant is confidential information which is not shared with the public at large. As such, the information is exempted from disclosure under Section 8(1)(d) of RTI Act, 2005.
4. to 9. The information is not available at Corporate Office."
Decision At the outset, the Commission rejects the contentions of the Complainant raised through his latest written submissions as none of the points are applicable to the facts of the instant matter.
Notwithstanding the aforesaid, the Commission upon a perusal of records observes that the main ground of the instant Complaint was non-compliance of FAA's order by the CPIO, BHEL Corporate Office. In response to which, the CPIO explained that a revised reply in compliance with the FAA's order has already been furnished to the Complainant vide letter dated 21.01.2023.
Now, by looking into the contents of CPIO's reply dated 23.01.2023 the Commission finds that the said reply of the CPIO is not very cogent and largely fails to comply with the provisions of RTI Act. This is evident from the fact that in response to points no. 4 to 9, the CPIO have intimated in a vague manner the non-availability of information to the Complainant; as against accessing the desired information from concerned record holder by invoking Section 5(4) of the RTI Act for seeking the assistance of the concerned record holder in order to render due assistance to the RTI Applicant as espoused in Section 5(3) of the Act. As it appears, the then CPIO has failed to discharge his duty as per the Act in the instant case.
The above said conduct of the concerned then CPIO amounts to unwarranted obstruction to the Complainant's right to information and also in grave violation of the provisions of RTI Act. Although, a malafide or deliberate intention of the erring CPIOs does not appear to be pertinent in the facts of the instant case but the sheer callousness of the officers attracts severe admonition of the Commission.
7Nonetheless, in the spirit of RTI Act, the CPIO is directed to share a complete copy of her latest written submission free of charge with the Complainant immediately upon receipt of this order under due intimation to the Commission.
The Complaint is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सू सूचना आयु ) Authenticated true copy (अिभ मािणतस यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ,उप-पंजीयक दनांक / Date 8