Central Information Commission
Amresh Chandra Mathur vs Department Of Health & Family Welfare on 10 April, 2019
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/MOHFW/C/2017/603457-BJ
Mr. Amresh Chandra Mathur
.... िशकायतकता /Complainant
VERSUS
बनाम
1. CPIO and Section Officer,
Ministry of Health & Family Welfare
Directorate General of Health Services (RTI Cell)
Nirman Bhawan, New Delhi - 110011
2. CPIO
Directorate General of Health Services
Office of DCG (I), (RTI Cell)
FDA Bhawan, Kotla Road
New Delhi - 110002
... ितवादीगण /Respondent
Date of Hearing : 03.04.2019
Date of Decision : 09.04.2019
Date of filing of RTI application 24.11.2016
CPIO's response 25.01.2017
Date of filing the First appeal 17.02.2017
First Appellate Authority's response 22.03.2017
Date of diarised receipt of Complaint by the Commission Nil
ORDER
FACTS:
The Complainant vide his RTI application sought information on 03 points regarding the complaint of ALCON VIGAMOX imported and marketed by M/s Alcon Laboratories (India) Pvt. Ltd., copy of all documents / note sheets/ orders, etc in the file or permission to inspect the file; copy of the information provided by the PIO, CDSCO with respect to the RTI Application Number MOHFW/R/2015/60406, copy of proof of dispatch of information, etc. The CPIO, DGHS, O/o the DCG (I) (RTI Cell), New Delhi vide its letter dated 25.01.2017 provided a point wise response to the Complainant inter alia informing him that he had already inspected the file concerned with ALCON VIGAMOX on 09.01.2017 as per the direction of the Commission. Dissatisfied by the response, the Complainant approached the FAA. The FAA, vide its order dated 22.03.2017 provided point wise clarification to the Complainant. It was also noted that on Page 1 of 6 18.10.2017 the Complainant had been informed by DGHS (Drug Regulation Section) that the records available with them were thoroughly checked and the information sought could not be found.
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Mr. Amresh Chandra Mathur along with Mr. Venkatesh Nayak; Respondent: Mr. Jayant Kumar, CPIO & DDC (I), DGHS, Mr. Abhishek Chawardol, DI, DGHS, Mr. S. Kulshrestha, ADC (I) and Mr. R. K. Singh, CDSCO;
The Complainant submitted that no satisfactory response was provided to him in the matter, till date. He referred to the reply of the CPIO/ FAA in response to the point no. 02 of the RTI application dated 24.11.2016 wherein he had sought for the information provided by the PIO, CDSCO, against the RTI application MOHFW/R/2015/60406 and submitted that the same was not responded appropriately and that Shri Sunil Kulshrestha, Asst. Drug Controller (I) and CPIO, CDSCO, New Delhi did not respond to his RTI application dated 15.02.2015. Essentially he was seeking response to the RTI application filed in 2015. In its reply, the Respondent submitted that a suitable response was provided by the CPIO/ FAA against the RTI application dated 24.11.2016 which was also decided by the Commission in CIC/DTGHS/C/2017/602102 dated 18.07.2017 subsequent to which vide letter dated 24.08.2017,they had provided the information with reference to point no. 02 of the RTI application. The Complainant contested the aforementioned submission and stated that neither was the information provided to him nor was the order of the Commission properly complied with, till date. However, during the hearing the Complainant was unable to clearly and cogently explain the relief sought by him in the matter and the cause of action based on which he had filed the instant Complaint. Furthermore, on perusal of the available records, the Commission also observed that vide letter dated 19.05.2017, the Commission had returned the instant Complaint on the ground that it related to more than one RTI application. It was also mentioned that a separate Appeal/ Complaint relating to each RTI application was required to be filed as per the format prescribed in Appendix to Rule 8 of RTI Rules, 2012 which enclosing all documents mentioned therein.
In response, the Complainant submitted that in his Complaint u/s 18 (1) of the RTI Act, 2005, he had mentioned about the contents of the RTI application dated 15.02.2015 and 24.11.2016 and the response provided by the public authority officials to both the applications. It was further stated that even after having the RTI request number MOHFW/R/2015/60406, CPIOs response and FAA providing copies of documents Import/ Misc/ 15/2015-DC dated 13.01.2015 and 02.11.2014 which were never requested in the RTI application (s) and not responding to query 2 made it clear that Shri Sunil Kulshrestha, Asst. Drug Controller (I) and CPIO, CDSCO did not respond to the RTI application dated 15.02.2015. Thus, he inter alia prayed to impose penalty for not providing the information and obstructing the information u/s 20 (1) and (2) and direction u/s 25 (5) of the RTI Act to the concerned Public Authority.
The Commission was in the receipt of a written submission from the Respondent, Deputy Drugs Controller (I) dated 03.04.2019, wherein while reiterating the response of the CPIO/FAA dated 25.01.2017/22.03.2017 respectively, a point wise submission against the observation of Complaint u/s 18(1) of the RTI Act, 2005 was made. On the observation with respect to the CPIO Response i.e. "Please provide the copy of RTI application & RTI application date for further necessary action" it was stated that, as the copy of RTI No. MOHFW/R/2015/60406 was not found to be received as per available record; the applicant was requested for providing a copy of the RTI application. It was further stated that the Appellant had visited their office of CDSCO on 03.02.2015 for inspection & Page 2 of 6 after inspection, he had mentioned in his written submission that "Inspection of file was carried out on 03.02.2015. All pages kept in the file was inspected & was satisfied" (Copy Enclosed as Annexure 5). He had also inspected the file on 22.12.2016 in compliance of verbal direction of the Hon'ble CIC given during hearing vide Order No. CIC/SA/A/2015/000319 under bench of Hon'ble Commissioner Prof. M. S. Acharyulu. (Copy of Minutes of inspection visit Enclosed Annexure 6).
Further, their office had received a Notice of Hearing for Appeal/Complaint of the Appellant, vide file no. CIC/DTGHS/C/2017/602102 dated 23.06.2017 (copy of Notice is attached as Annexure 7), wherein, the case of applicant was listed on 18.07.2017 at 12:45 PM under Hon'ble CIC. After hearing both the parties & on perusal of record the Commission had directed their office to submit copies of all relevant replies given so far by CDSCO within three weeks of receipt of the order. In compliance of the same, CDSCO had submitted the reply to the Hon'ble CIC with a copy marked to the applicant (along with copies of enclosure) vide letter of even no. dated 24.08.2017 for all the relevant information including response of Alcon as mentioned in RTI application no. MOHFW/R/2015/60406 at Sr. No. 02 as per the direction of Hon'ble CIC (Copy said reply was attached as Annexure 8). The dispatched details of the above documents to Hon'ble CIC & Applicant were enclosed as Annexure 9. Based on the above facts, it was stated that the applicant had been provided all the requisite information/documents in respect of his RTI request and the applicant had also inspected the files twice as mentioned in Annexure C. The CPIO had also acted reasonably and diligently with bonafide intent and did not have any intention to hide the information as sought by the applicant.
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 Vs. Aditya Bandopadhyay), 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:Page 3 of 6
"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 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 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 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."Page 4 of 6
The Commission observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.Page 5 of 6
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and taking into consideration the lack of clarity in the matter, the Commission instructs the DGHS (RTI Cell) to send the copy of all the information provided against both the RTI applications dated 15.02.2015 and 24.11.2016 to the Complainant within a period of 15 days from the date of receipt of this order.
The Complaint stands disposed accordingly.
Bimal Julka (िबमल जु का) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) K.L. Das (के .एल.दास) Dy. Registrar (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 09.04.2019 Copy to:
1. The Directorate General of Health Services (DGHS), Room No. 446-A, Nirman Bhawan, Maulana Azad Rd, New Delhi, Delhi 110011 Page 6 of 6