Central Information Commission
Love Gogia vs Bharat Sanchar Nigam Limited on 29 May, 2020
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
कें द्रीय सुचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ मागग
Baba Gangnath Marg
मुननरका, नई दिल्ली - 110067
Munirka, New Delhi-110067
Decision no.: CIC/BSNLD/C/2019/641204/03611
File no.: CIC/BSNLD/C/2019/641204
In the matter of:
Love Gogia
...Complainant
VS
DGM NWO - CM & CPIO
Bharat Sanchar Nigam Limited (BSNL)
Corporate Office(CO), 1st Floor, Bharat Sanchar Bhawan,
H C Mathur Lane, Janpath, New Delhi - 110 001
...Respondent
RTI application filed on : 22/02/2019 CPIO replied on : 11/03/2019 First appeal filed on : Not on record First Appellate Authority order : Not on record Complaint filed on : 22/05/2019 Date of Hearing : 24/04/2020, 29/05/2020 Date of Decision : 24/04/2020, 29/05/2020 The following were present: Complainant: Heard over phone
Respondent: Shri Satender Kumar, PGM NWO-CM & CPIO and Ms S S Dutta, Nodal CPIO, both present over phone.
Information Sought:
The complainant has sought the action taken by BSNL CO New Delhi, in regard to his letter dated 11/07/2018 having subject matter "Complaint against Mr. R.K. Sanyal, AGM (NWO-CM), BSNL CO New Delhi (HRMS No. 198207179) - and regarding redressal of grievances":1
1. Provide copy of the covering letter No. 4-50/2018/Genl/Admn/06 dated 29/10/2018 in respect of the above said complaint sent by NTR Circle Office to BSNL,CO, New Delhi.
2. Provide copy of logbook or any other book including section diary and despatch diaries where details of the said complaint were entered, marked to specific officers for action in BSNL CO New Delhi.
3. Copy of all the remarks, feedback etc. till date.
4. Diary No. (with date) given by concerned offices/sections of BSNL CO vide which the complaint flowed from one officer/ official to other.
5. And other related information.
Grounds for filing Complaint:
The CPIO has provided incomplete and incorrect information.
Submissions made by Complainant and Respondent during Hearing:
The complainant submitted that the CPIO reply is highly improper and he denied the information without applying his mind. Such type of attitude of the PIO, culminating in denial of information shows that the PIO is making a mockery of the RTI Act by defeating the very purpose of the RTI application for which it was filed. He also submitted that he was not given an opportunity of personal hearing by the First Appellate Authority when he had specially requested for the same and the FAA decided his appeal without even appreciating the contents of the first appeal application.This shows that the FAA was also hell-bent to block the information unjustifiably and arbitrarily. He prayed that penalty under section 20(1) be imposed on the concerned CPIO, desired the Commission to recommend for disciplinary action against the PIO and concerned officer, as per applicable service rules, for obstructing & malafidely denying the requested information and to order for making entry in service book/annual appraisal report of the concerned PIO & FAA for defying the Act of Parliament, to compensate the complainant for the avoidable delay, inconvenience, mental and emotional agony caused to him by the public authority in the supply of information.
The CPIO submitted that at that relevant period, Shri P C Rastogi was the then CPIO who has given the reply dated 11.03.2019 and he was given the charge of the CPIO only three days prior to the hearing . He was only handling the RTI applications in the regular CPIO's absence. While admitting the fact that a 2 proper reply was not given to the complainant in the present case, he submitted that it was due to the reason that the RTI application was routed through an improper channel and the reply was given by an officer who was not dealing with the subject matter of the RTI application. He tendered his apology for not giving a proper reply and submitted that he is willing to share the desired information with the complainant.
At this point, the complainant raised an objection and stated that the present CPIO was the concerned CPIO at that time also and he was the holder of the desired information.
Observations:
From a perusal of the relevant case records and considering the submissions, both oral and written of the parties, it is noted that the reply of the CPIO was highly improper as rather than addressing the points raised by the complainant in his RTI application, the CPIO has outrightly rejected the application while stating that there is no provision under the RTI Act for redressal of the grievances. The CPIO present during the hearing was not able to give any explanation as to why such kind of a reply was given apart from stating that he was not the then CPIO who has handled the above mentioned RTI application. He himself admitted that the RTI application in question was not properly handled owing to the fact that it was not properly routed. The Commission does not find the justification given by the CPIO as satisfactory and is appalled at the conduct of the concerned CPIO and the organisation as a whole for such bad handling of the RTI application.
The other important issue that was raised by the complainant is whether the First Appellate Authority's order of dismissing the First Appeal without affording an opportunity to him to present his case of dissatisfaction on the reply of the CPIO is legal and justified.
Here, it is needless to say that rendering an opportunity of hearing to the parties is a fundamental principle of jurisprudence. It is conducive to fairness and transparency and is in accordance with the principles of natural justice. An opportunity of hearing to the parties also brings greater clarity to the adjudicating authorities. This Commission always gives an opportunity of hearing to the parties but this does not appear to be usually done by the FAAs, as probably there are practical difficulties therein, partly arising out of the 3 number of appeals involved and partly due to the limited time frame in which the matters are required to be decided. However, in cases where an appellant specially asks for such a hearing before the FAA, such an opportunity should be granted. The essence of the RTI Act is to provide complete, correct and timely information to the appellant. In this particular case, the FAA has not only failed to address the inadequacies in the reply of the CPIO but has also failed to provide a fair chance to the complainant of representing his case before the Appellate Authority. The principles of natural justice signify the basic minimum fair procedure which must be followed while exercising decision making powers as natural justice forms the very backbone of a civilized society.
The wheels regarding the application of principles of natural justice to administrative and quasi-judicial proceedings started turning from 1963 when the House of Lords in the United Kingdom delivered the landmark and often quoted judgment of Ridge v. Baldwin [1963] UKHL 2. An order for dismissal of a Constable was quashed because he was not provided any opportunity to defend his actions. Presently, in our country, the principles of natural justice are applicable in totality to administrative and quasi-judicial proceedings. This is consistent and in line with the rapidly increasing role, functions and jurisdiction of such bodies in a welfare state like ours.
The below-mentioned passage of the Hon'ble Supreme Court in the case of Uma Nath Pandey v. State of U.P. AIR 2009 SC 2375 exhaustively explains the term natural justice which is reproduced below for ready reference:
"6. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted Writ Petition No.6427/2017 considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.4
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009 issued by the DoPT 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.
5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. "
With regard to the prayer regarding compensation, the Commission is of the opinion that the complainant has raised the issue of compensation in a complaint case which cannot be admitted as compensation is payable in case of appeal only and not the complaint and this point has already been taken account of in File No. CIC/BSNLS/A/2019/641200. This position is clear from the decision of the Hon'ble Delhi High Court dated 09.04.2013 in LPA 195/2011 titled as Union of India v. P. K. Srivastava, wherein, it was observed as under:-
"5. It is quite evident from a perusal of the above referred provisions contained in Section 19 of the Act that compensation to the complainant for any loss or other detriment suffered by him can be awarded by the Commission only while deciding an appeal filed before it.
Decision:
The CPIO's conduct in dismissing the RTI application without application of his mind and failure on his part to justify the dismissal is unacceptable. It shows utter disregard to the provisions of the RTI Act. Here, it is pertinent to mention that even if the then CPIO, Shri P C Rastogi has retired from service, that in 5 itself does not bar the Commission to call for his explanation as to why such lapse was done by him. In view of this, the Commission directs both the then CPIO and the present CPIO to appear before the bench on 29.05.2020 at 12.30 p.m. to show cause as to why action should not be initiated against them under Section 20(1) and (2) of the RTI Act. Both the CPIOs are also directed to send a copy of all supporting documents which they choose to rely upon during the hearing. The said documents be sent to the Commission at least two days prior to the hearing via linkpaper. If any other persons are responsible for the said omission, the CPIOs shall serve a copy of this order on such persons to direct their presence before the bench as well.
The Commission also notes that the manner of dismissal of the first appeal by the FAA without granting an opportunity for personal hearing after the appellant has specifically asked for a hearing goes against the principles of natural justice. The FAA in this case without hearing the appellant concluded that the case needs to be dismissed which reflects unreasonable handling of the first appeal, driving the appellant to file Second Appeal. The Commission, therefore, cautions the FAA to strictly follow the RTI regime while disposing of appeals and pass a speaking order, after taking due cognizance of the merits of each case. A copy of this order is marked to the concerned FAA for his information. The present CPIO is directed to serve a copy of this order on the FAA immediately upon the receipt of the order.
The case is accordingly adjourned.
Date of Hearing: 29.05.2020 The following were present:
Respondent: Shri Satyendra Kumar, PGM NWO-CM & CPIO and Shri P.C Rastogi, the then CPIO; present over phone Submissions made by Respondent during Hearing:
The appellant sent a written submission vide letter dated 05.05.2020 requesting the Commission to provide him opportunity to be heard to contest the CPIO's explanations in respect of the showcause notices issued.6
The CPIO Shri Satyendra Kumar submitted that the complainant wanted to know the action taken details by the BSNL Co. New Delhi on his complaint lodged against one of his superiors through his RTI application on which this appeal has been made. He further submitted that as per the extant instructions, any complaint is to be dealt either by the officer to whom the complaint is addressed or by the Section to whom copy is given. The said complaint was addressed to CVO and a copy was marked to CMD, BSNL. The complaint was being handled by Establishment Section and the same is substantiated by the markings on the complaint letter. The PIO of Establishment Section would be in a better position to reply on the said RTI application in view of relevant information being available with him. It was with this point in mind that he remarked about the improper routing / handling of said RTI.
It is felt that either the Nodal CPIO of BSNL should have marked it to CPIO, CVO/Establishment Section in first instance or the then CPIO (P C Rastogi) should have returned it to the Nodal CPIO or to the PIO of CVO/Establishment Section.
Furthermore, he submitted that in reference to the observation of the Commission that no explanation was given as why such reply was given by CPIO (Satyendra Kumar), it is seen from the file noting that the said RTI was seen as seeking information for redressal of grievance, and it was decided to inform the applicant to take up the matter with the concerned authority in view of no provision existing under the RTI Act for redressal of staff grievances.
He further submitted that the then CPIO Shri P.C Rastogi who handled the said RTI as is evident from the said file noting, may only be able to explain in reference to the said noting as he was a party to the said decision.
Shri P.C Rastogi submitted that the complaint dated 11.07.2018 of the complainant was received in the office on 12.09.2018 much prior to the date of the present RTI application 22.02.2019. It was forwarded by Establishment Cell to NWO- CM Section. The complaint grievance was processed and comments/ report was submitted to Establishment cell on 26.04.2019. Thus the complaint/grievance of the complainant was in process when the RTI application dated 22.02.2019 was received.7
He also pointed out that the complainant had vide his RTI application dated 01.09.2017 requested to provide a copy of all the correspondences (relating to him) exchanged between NWO-CM and other units of BSNL. In this case the earlier bench of the Commission vide decision dated 26.06.2018 in appeal no.
CIC/BSNLD/A/2017/606929 & CIC/BSNLD/A/2017/606980 had directed BSNL to provide the complainant a copy of all correspondences and notesheets from January 2016 till date (i.e26.06.2018). The order was complied with on 10.07.2018.
He summed up stating that the content matter of the complaint dated 11.07.2018 and the correspondence letters requested in the RTI no. BSNLD/R/2017/51000, dated 01.09.2017 were on the same grievances. Since the appellant was repeatedly coming up with the same issues once through complaint, again through RTI, the said decision was taken.
Observations:
At the outset, the request of the appellant to be present during the show cause notice hearing was dealt with. It was found relevant to refer to the judgement of the Hon'ble High Court of Delhi in the case of Ankur Mutreja v. Delhi University in LPA 764/2011 dated 09.01.2012 wherein it was held as under:
"a) the Act does not provide for the CIC to, in the penalty proceedings, hear the information seeker, though there is no bar also there against if the CIC so desires;
b) that the information seeker cannot as a matter of right claim audience in the penalty proceedings which are between the CIC and the erring information officer;
c) there is no provision in the Act for payment of penalty or any part thereof imposed/recovered from the erring information officer to the information seeker;
d) the penalty proceedings are akin to contempt proceedings, the settled position wherein is that after bringing the facts to the notice of the Court, it becomes a matter between the Court and the contemnor and the informant or the relator does not become a complainant or petitioner in contempt proceedings."8
The aforementioned decision was also relied upon and affirmed by the Hon'ble High Court of Delhi in its decision in Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 wherein it was held as under:
"8...........................The information seeker has no locus in the penalty proceedings, beyond the decision of the complaint/appeal and while taking which decision opinion of default having been committed is to be formed, and at which stage the complainant/information seeker is heard.
9. ............................ In the context of the RTI Act also, merely because the CIC, while deciding the complaints/appeals is required to hear the complainant/information seeker, would not require the CIC to hear them while punishing the erring Information Officer, in exercise of its supervisory powers."
In view of the above ratio, the appellant was not called for hearing during the show cause proceedings. In so far as the submissions of Shri Satyendra Kumar is concerned, he had not provided any cogent explanation as to why the sought for information was not provided and the reply provided by the CPIO was grossly improper. However, from the explanations put forward it was observed that the error occurred due to non application of mind and not treating the RTI application as a separate issue from the complaint letter dated 11.07.2018. The information sought should have been given as per the availability of records. In respect of complaint dated 11.07.2018 the same can be treated as a grievance but not the present RTI application. However, after perusing the explanation of the then CPIO Shri C.P Joshi it was observed that as he rightly pointed out the complainant had filed the complaint dated 11.07.2018 just after the compliance of the previous CIC order on 10.07.2018 and though a bar is not there on the applicant in filing RTI application, but this practise cannot be encouraged that the applicants shall file complaints and then ask for action taken under the RTI Act. In case the same was a single complaint then may be the observations would have been different but seeing the number of his RTI applications vis a vis the complaints to the department, the Commission cannot hold the intention of the CPIOs to be malafide in providing such replies.
The CPIO's plea that the content of the complaint dated 11.07.2018 and the correspondence letters requested in the RTI no BSNLD/R/2017/51000, dated 01.09.2017 were on the same grievances makes it clear that earlier 9 information sought was provided but in the present case the same was denied as the appellant was repeatedly coming up with the same issues once through complaint, again through RTI.
Considering the provisions of the RTI Act, the reply is treated as incorrect, however the explanation given shows that there was no malafide intent on the part of the CPIOs. The officers under the RTI Act are cautioned to be careful while dealing with the RTI application and reply as per the provisions of the Act and should deny information only if not covered u/s 2(f) or is covered by any exemption clauses.
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. ................................ 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."10
Decision:
In view of the above observations, the Commission opines that the CPIO 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 as per the provisions of the RTI Act.
In view of the CPIO Shri Satyendra Kumar's request that he is retiring on 30.05.2020 and the Commission may condone the error and taking into consideration the fact that Shri P.C Rastogi has already retired, the Commission while expressing extreme displeasure over the conduct of the CPIOs , refrains from imposing penalty on them , more so when no malafide intent has been found.
A copy of this order is marked to the CEO, BSNL for information and necessary action to ensure proper implementation of the RTI Act in its letter and spirit.
The complaint is disposed of accordingly Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानित सत्यानित प्रनत) A.K. Assija (ऐ.के . असीजा) Dy. Registrar (उि-िंजीयक) 011- 26182594 / दिनांक / Date Copy to:
The Chairman & Managing Director Bharat Sanchar Nigam Limited (BSNL) Corporate Office, 1st Floor, Bharat Sanchar Bhawan, H C Mathur Lane, Janpath, New Delhi - 110 001 11