Central Information Commission
Baljeet Kumar vs Medical Council Of India on 26 June, 2020
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/MEDCI/C/2018/165766-BJ
Mr. Baljeet Kumar
.... िशकायतकता /Complainant
VERSUS
बनाम
CPIO and Asstt. Secretary
Medical Council of India
Pocket 14, Phase 1, Sector 8, Dwarka
New Delhi - 110077
... ितवाद गण /Respondent
Date of Hearing : 25.06.2020
Date of Decision : 26.06.2020
Date of filing of RTI application 19.07.2018
CPIO's response Not on Record
Date of filing the First appeal 10.09.2018
First Appellate Authority's response Not on Record
Date of diarised receipt of Complaint by the Commission 05.11.2018
ORDER
FACTS:
The Complainant vide his RTI application sought information on 05 points regarding how was the grievance being submitted online monitor by the grievance cell of the MCI, was MCI maintaining any citizen charter for grievance redressal, if yes, detail about the citizen charter, etc. Dissatisfied due to non - receipt of any response from the CPIO, the Complaint approached the FAA. The reply of the CPIO/ Order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 12
Complainant: Mr. Baljeet Kumar along with his daughter Ms. Aditi, in person; Respondent: Mr. Shikhar Ranjan, Law Officer and Mr. Bhagwan Das Jain, Asstt. Secy./ PIO in person;
The Complainant reiterated the contents of the RTI application and stated that no reply has been furnished to him by the respondent. He further submitted that the Grievance Redressal Mechanism of a public authority should be made available suo moto by the concerned public authority. However, in the present matter, neither any suo moto disclosures were made by the respondent public authority nor did the CPIO or FAA find it obligatory to perform their statutory duty of furnishing a reply to the RTI application, as mandated under the RTI Act, 2005. He further alleged that the implementation of the RTI Act, 2005, in the Respondent Public Authority is far from satisfactory and that they were not adhering to the provisions of the RTI Act, 2005 and therefore, desired strict action to be initiated against the erring CPIO. In its reply, the respondent apprised the Commission that the complainant had filed 105 RTI applications with the respondent public authority seeking redressal of his grievance pertaining to the migration of his daughter, Ms. Aditi, from Government Medical College Kannauj (UP) to Vardhman Mahavir Medical College & Safdarjung Hospital, New Delhi, which was denied by the Migration Sub- Committee. A categorical reply was furnished in almost all his above stated RTI applications. However, in the present matter, due to oversight, inadvertently no reply in response to the complainant's RTI application/first appeal could be provided to him. The respondent tendered his unconditional apology for this lapse and requested the Commission to condone the same. He further agreed to furnish a point wise reply to the complainant. In response to a query as to whether any suo moto disclosures of the Grievance Redressal Mechanism were made on the official website of the respondent public authority, the respondent replied in negative.
The Commission was in receipt of a consolidated written submission from the Respondent dated 23.06.2020 wherein it was inter alia stated that on receipt of the application dated 15.11.2016 from Ms Aditi D/o the Appellant/ Complainant with regard to her migration from Government Medical College Kannauj (UP) to Vardhman Mahavir Medical College & Safdarjung Hospital, New Delhi, the matter was considered by the Migration Sub-Committee of the Council at its meeting on 21.12.2016 and the sub-committee decided not to grant migration to Ms. Aditi. Accordingly, the Council vide letter dated 05.01.2017 conveyed the decision of the migration Sub-Committee to Ms Aditi with copy forwarded to the concerned authorities. Further on receipt of various representations dated 17.03.2017, 21.04.2017, 13.05.2017, 12.06.2017, 16.06.2017, 17.06.2017, 08.07.2017, 18.07.2017, 19.07.2017 and 16.08.2017 the matter was reconsidered by the Migration Sub-Committee at its meeting held on 23.10.2017 and the Committee decided the same . Accordingly, the Council vide letter dated 30.11.2017 conveyed the decision of the Migration Sub-Commitee to Ms Aditi with copy forwarded to the concerned authorities. While stating that the Appellant/ Complainant was filing numerous RTI applications relating to the migration of his daughter, the Respondent stated that from 14.06.2017 to 28.02.2020, the Complainant had filed 102 RTI applications/ first appeals with the Council. All RTI applications and first appeals were duly responded which demonstrates that these applications were frivolous vexatious and no public good was served. Accordingly, they are liable to be dismissed. It was also stated that the Council had decided that the matter cannot be reviewed again and again as Page 2 of 12 the grounds for rejection remained the same hence no further communication would be entertained in this regard in future. A letter dated 18.11.2019 was also sent to the Complainant in this regard.
A copy of the written submissions was provided to the complainant by the respondent during the course of hearing.
Having heard both the parties and on perusal of the available records, the Commission observed that information regarding the Grievance Redressal Mechanism, as sought in the RTI application and held in the records of MCI, warrants suo moto disclosure and should be disclosed on the website of the public authority for the benefit of public at large. The Commission referred to the recent decision of the Hon'ble Supreme Court in the matter of Ferani Hotels Private Limited vs. the State Information Commissioner, Greater Mumbai & Others in Civil Appeal Nos. 9064-9065 of 2018 (Arising out of SLP (C) Nos. 32073-32074/ 2015) dated 27.09.2018, wherein the Hon'ble Court has directed to disclose the building plans, sanctioned plans, and details of commercial establishments in the public domain. The relevant observations made in the decision are mentioned hereunder:
"34. In the end, we would like to say that keeping in mind the provisions of RERA and their objective, the developer should mandatorily display at the site the sanction plan. The provision of sub-section (3) of Section 11 of the RERA require the sanction plan/layout plans along with specifications, approved by the competent authority, to be displayed at the site or such other places, as may be specified by the Regulations made by the Authority. In our view, keeping in mind the ground reality of rampant violations and the consequences thereof, it is advisable to issue directions for display of such sanction plan/layout plans at the site, apart from any other manner provided by the Regulations made by the Authority. This aspect should be given appropriate publicity as part of enforcement of RERA."
Furthermore, the Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain 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. Thus, information relating to allotment of alternative plots should be disclosed suo motu in the public domain for the ease and convenience of the public at large.
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 Page 3 of 12 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:
"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)].Page 4 of 12
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
Furthermore, the Commission observed that the issues raised in the RTI application pertained to the larger public interest and hence the same should be answered in accordance with the provisions of the Act. The Commission therefore referred to the decision of the Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."Page 5 of 12
Every action of a Public Authority is expected to be carried out in Public Interest. The Hon'ble Supreme Court of India in the matter of Kumari Shrilekha Vidyarthi, etc vs. State of UP and Ors., 1990 SCR Supl. (1) 625 dated 20.09.1990 wherein it had been held as under:
"Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest."
The Commission felt that timely response is the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this 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 6 of 12 ".....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, 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.
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, however, also observed that the complainant had filed numerous RTI applications before the respondent public authority, including the present RTI application, in connection with the migration of his daughter. The Commission notes that the Hon'ble Supreme Court in its decision in Central Board of Secondary Education and another vs. Aditya Bandopadhyay and Others, (2011) 8 SCC497 has held as under:
"37. Indiscriminate and impractical demands or directions under the RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter- productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace; tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of public authorities prioritising 'information furnishing', at the cost of their normal and regular duties."Page 7 of 12
Furthermore, the Hon'ble Supreme Court in the matter of ICAI vs. Shaunak H. Satya (2011) 8 SCC 781 dated 02.09.2011 had held as under:
"26. We however agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under Section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources."
The Hon'ble High Court of Judicature at Madras in the case of The Registrar (Administration), High Court, Madras vs. Central Information Commission (W.P.No. 26781 of 2013) dated 17.09.2014 has observed:
"28. In fact, the first respondent-Commission itself has deprecated the practice of the second respondent herein in overloading the Registry of this Court by making several queries or complaints one after another and following the same under the RTI Act. Having found that the action of the second respondent in sending numerous complaints and representations and then following the same with the RTI applications; that it cannot be the way to redress his grievance; that he cannot overload a public authority and divert its resources disproportionately while seeking information and that the dispensation of information should not occupy the majority of time and resource of any public authority, as it would be against the larger public interest ........."
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 Page 8 of 12 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 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."
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 Page 9 of 12 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 High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition No.6504 of 2009 Date of decision: 04.03.2010 (State of Punjab and others vs. State Information Commissioner, Punjab and another); had held as under:
"3. The penalty provisions under Section 20 is only to sensitize the public authorities that they should act with all due alacrity and not hold up information which a person seeks to obtain. It is not every delay that should be visited with penalty. If there is a delay and it is explained, the question will only revolve on whether the explanation is acceptable or not. If there had been a delay of a year and if there was a Superintendent, who was prodding the Public Information Officer to act, that itself should be seen a circumstance where the government authorities seemed reasonably aware of the compulsions of time and the imperatives of providing information without any delay. The 2nd respondent has got what he has wanted and if there was a delay, the delay was for reasons explained above which I accept as justified."
The Complainant could not substantiate his claims regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause.
Page 10 of 12DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above, the Commission directed the CPIO to furnish point wise reply to the complainant, as agreed. The Commission also noted that the information regarding the Grievance Redressal Mechanism, as sought in the RTI application, warrants suo moto disclosure and should be disclosed on the website of the public authority for the benefit of public at large. The Commission, therefore, directed the respondent to disclose information regarding the Grievance Redressal Mechanism on their official website. The above directions of the Commission shall be complied with within a period of 15 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email (Email [email protected] ) in accordance with the provisions of the RTI Act, 2005, under intimation to the Commission.
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 Complaint stands disposed, accordingly.
(The Order will be posted on the website of the Commission).
Bimal Julka ( बमल जु का) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मा णत स या पत ित) K.L. Das (के.एल.दास) Dy. Registrar (उप-पंजीयक) 011-26186535/ [email protected] दनांक / Date: 26.06.2020 Page 11 of 12 Copy to:-
1. Chairman, Board of Governors in Supersession of Medical Council of India, Sector -8, Pocket 14, Dwarka, Phase - I, New Delhi-110077 Page 12 of 12