Central Information Commission
Dr Arunava Kundu vs Employees State Insurance Corporation on 3 May, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/ESICO/A/2022/607070
Dr ARUNAVA KUNDU ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
ESI-PGIMSR, ESIC Medical
College and ESIC Hospital &
ODC (EZ), RTI Cell, Joka,
Diamond Harbour Road, South 24
Parganas-700104, West Bengal. .... ितवादीगण /Respondent
Date of Hearing : 24/04/2023
Date of Decision : 24/04/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 11/11/2021
CPIO replied on : 17/11/2021
First appeal filed on : 24/11/2021
First Appellate Authority order : 21/12/2021
2nd Appeal/Complaint dated : 02/02/2022
Information sought:
The Appellant filed an RTI application dated 11.11.2021 seeking the following information:1
"1. Does Right to Sight Indian Vision 2020 programmed by NPCB (Guidelines for the Management of Cataract in India) form the basis of Cataract surgery operations in ESIC Hospitals all over India. NPCB is a program of MOH, GOI
2. Is pre-Anesthesia checkup followed as a mandatory norm for pre- operative Eye Surgery Patients.
3.Is the presence of Anesthesiologist during Eye Surgery as standby recommended as a norm in ESIC as propounded by Right to Sight Vision 2020.
4 Who is the overall in charge of Eye OT(Custodian) as per ESIC norms all over India."
The CPIO furnished a reply to the appellant on 17.11.2021 stating as under:
"In reference to the aforesaid application dated 11.11.2021, it is to inform that the applicant here is an employee of ESI Corporation. Hence the information seeker being an employee of the information providing organization is also a part of the information provider. Under the RTI Act, the employees are not expected to question the decisions of the superior officers in the garb of seeking information. Such employees have access to internal mechanism for redressal of their grievances. Unfortunately, a large number of employees of this hospital and other Government Organization are seeking information for promotion or on other matter of their personal interest. This is done on the pretext of serving the public causes, without realizing the extent of distortions that it causes in use of public resources due to putting up frivolous application by them for self-interest. This fact has been accepted by the CIC in the case of Dr. K.C. Vijay Kumar Nair, where the Public Authority was Department of Post and decide accordingly vide their decision No. 883/1C(A)/2007 dated 14.06.2007.
It is also the case. No greater public interest would be served by providing such information. It can serve the personal interest of the RTI applicant. Hence it is requested to use the internal mechanism of the organization to collect the information."
Being dissatisfied, the appellant filed a First Appeal dated 24.11.2021. FAA's order, dated 21.12.2021, held as under:
2"I have gone through your First Appeal dated 24.11.2021 and would like to inform that the duty of a CPIO of an organization is neither to reply the question asked by an RTI Applicant nor to obfuscate the questions asked by the RTI Applicant, rather the duty of the CPIO is to provide the information which he possesses. Hence, mentioning the point in the First Appeal that the reply of your RTI queries is a deliberate attempt to misconstrue and obfuscate the questions is an unequivocal acceptance of the fact that the RTI Applicant herein Dr. Arunava Kundu has asked question instead of seeking information.
Every officer holding a portfolio / post has his own opinion / view with regard to any clause / act / rules / regulation on a particular subject / matter and it was preposterous to think that an officer herein the CPIO of ESIC Hospital, Joka will not be able to do his duty i.e. providing information to an information seeker and so made deliberate attempt to avoid to provide the information.
Being the First Appellate Authority, I am unable to persuade myself to agree to the proposition as promoted purposefully by RTI Applicant (Dr. Arunava Kundu) that the reply of his RTI queries is a deliberate attempt to misconstrue and obfuscate the question.
However, for the end of controversy and to end the matter, the undersigned referred the matter to the two HODs concerned and after receiving information from both the HODs, the accumulated information is now attached herewith in next page as reply.
S. Information sought Information provided by HOD, Information provided by
No Anaesthesia. HOD, Ophthalmology
1 Does Right to Sight The information sought is a
Indian Vision 2020 situational query. Hence
programmed by NPCB cannot interpret in an
(Guidelines for the unequivocal manner to
Management of Cataract prepare information for NO
in India) form the basis of replying the RTI queries. This Cataract surgery is decided / replied as per the operation in ESIC verdict linked to Hospitals all over India. CIC/I0VBK/A/2017/186064 NPCB is a program of Dated 28.12.2017.
MOH, GOI.
2 Is pre --Anesthesia check This is again a question to Yes -- Vide Policies and 3 up followed as a obtain interpretation of Procedures on care of mandatory norm for pre- expertise related to two broad patient in the OT Doc operative --Eye Surgery specialty fields viz. No ESIC Joka/OT/SOP patients. Anesthesiology and Point- No. 4.1.2.3.
Ophthalmology. As per the Cataract Surgery in
verdict given against Adults.
CIC/I0VBK/A/2017/186064 {Copy of Policies &
Dated 28.12.2017 information Procedures on care of
provider / I Authority cannot patients in the
provide clarification on views Operation Theaters (OT)
or interpret any expert is attaches as
opinion. enclosure.}
3 Is the presence of The information sought is also
Anesthesiologist during a situational query for which Vide Policies and
Eye Surgery as standby interpretation of expert view Procedures on care of
recommended as a norm has been asked by the patient in the OT Doc
in ESIC as propounded by applicant. CPIO it FAA I No KW Jolty/OT/SOP.
Right to Sight Vision Authority cannot furnish Point No. 21.1. (Patient 2020. clarification on expert related Care activities within view as per the judgment the OT) given against {Copy of Policies & CIC/IOVBRA/2017/186064 Procedures on care of Dated 28.12.2017 patients in the Operation Theaters (OT) is attaches as enclosure}.
4 Who is the overall in OT is a common working area HOD-Anesthesia this is charge of Eye OT involving multi-specialty the document of (Custodian) as per ESIC manpower on hierarchical policies and procedures norms all over India. basis in each segment of on care of patients in specialty who works in the OT-Policy Guidelines coherence. In case of further for OT by ISO-9001- assistance, each segment 2015 dated 25.02.2019.
approaches to its next
superior authority for
accomplishment of any job.
Further it is to reiterate that the role of the authority is to provide information to the information seeker if the authority possesses that information. However, there 4 is no role of the authority to answer the question as asked by the RTI Applicant and RTI Act 2005 is not the appropriate instrument to redress any grievance of an employee or a complainant."
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Utpal Sarkar, Deputy Director & CPIO present through video- conference.
The Appellant expressed his dissatisfaction with the alleged wrong denial of information by the FAA by inviting attention of the bench towards the contents of his first appeal, relevant extracts of which are reproduced below in verbatim -
"....Seeking information regarding the SOP as ESIC all India norms and the NPCB propounded guidelines regarding optimization of the service care delivery is of vital importance, and cannot be deemed as an attempt to question the decision of superiors. The question was directed to the ESIC in an All India perspective. The CPIO Joka was inadvertently drawn into the entire saga for which I have no role to play. PAC check up is an exercise to pre-empt any pre-existing problem so that the patient does not develop any emergency during the surgery. This is negotiate the surgery in a safe and sound manner.
Ensuring the presence of Anesthesiologist within the OT complex is to make the surgery absolutely safe for the patients so that they can be given full care in the event of an emergency developing during surgery.
The overall in Charge of the OT is to ensure the recommended standards of Sterilization expected in an Ophthalmology OT. The standards of sterilization has to be exquisitely, meticulously and uncompromisingly maintained.
I invite your attention and remark in pointing out as to which of the questions has been intended to undermine your authority and supremacy.5
All the matters are of extreme public importance, absolutely essential for fixing accountability and intended to provide optimization of services in consonance with the spirit of the Vision 2020 (NPCB, GOI MOH) standards. It does not in the remotest possibility intended to satisfy personal interest as claimed by the CPIO. The sole intention of my efforts is to iron out the variability of Standard Operating procedures which might not be in resonance with the declared standards of Vision 2020 which is a Government of India declared norms, to optimize the standards of Cataract surgery services.
The CPIO, has leveled blind allegations without being adequately equipped technical knowledge. This exceeds his limits of brief and statutory ambit.
This also exposes his premeditated, biased, prejudiced, malicious, derogatory and defamatory mind set. The instance quoted (Decision No 883/1C(A)/2007 DATED 14/6/20070) can in no way be extrapolated in this case. This exposes his transgression of statute in providing only the information and an ulterior motive of suppression of information by adopting an ultra aggressive posture to bludgeon me into submission, by deliberately giving it a spin of questioning of authority..."
The Appellant in fact, further questioned and raised concern on the action of the Respondent authority i.e. ESIC in issuing a memo to him instead of appreciating and addressing the issue raised by him in the capacity of serving as the HOD which was totally arbitrary and unjustified.
The CPIO facilitated a detailed discussion on the issue flagged by the Appellant and at the same time ,reiterated the contents of his averred reply and FAA's order.
Decision:
The Commission upon a perusal of records and after hearing submissions of both the parties observes that the core contention of the Appellant in the instant Appeal was unsatisfactory response of CPIO. In response to which the CPIO has already furnished relevant inputs through initial response as mentioned in the preceding paragraphs and also taken corrective action on the technical issue flagged by the Appellant . Here, it is noteworthy that the issue raised by the 6 Appellant has an interrogative essence which are not covered under the definition of "information" as envisaged in Section 2(f) of the RTI Act. In this regard, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act.
His attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. 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." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors.
[SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....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...."
(Emphasis Supplied) 7 And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied) In view of the above, no further relief can be granted in the matter.
However, by taking an empathetic view in the matter, a copy of this order is marked to the CEO and Director General, ESIC, New Delhi to ensure redressal of such technical issues flagged by the Appellant.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सूचना आयु ) 8 Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / Copy marked to look into the matter -
To The CEO, Employees' State Insurance Corporation Headquarters Panchdeep Bhawan Comrade Inderjeet Gupta (CIG) Marg, New Delhi - 110 002.
Copy marked to look into the matter -
To The Director General, Employees' State Insurance Corporation Headquarters Panchdeep Bhawan Comrade Inderjeet Gupta (CIG) Marg, New Delhi - 110 002.9