Central Information Commission
Ramesh Chand Jain vs Delhi Transport Corporation on 16 November, 2018
CENTRAL INFORMATION COMMISSION
Baba Gang Nath Marg, Munirka
New Delhi-110067
F. No.CIC/DTCOR/C/2017/187285
Date of Hearing : 21.06.2017
Date of Interim Decision : 10.07.2017
Date of Final Decision (Show : 30.09.2018
Cause)
Appellant/Complainant : Shri Ramesh Chand Jain
Respondent : PIO
O/o the Dy. CGM-(Tr.)
DTC, GNCTD
Through:
None
Information Commissioner : Shri Yashovardhan Azad
PENALTY PROCEEDIGS UNDER SECTION 20 OF THE RTI ACT 2005
ORDER
1. The Commission while hearing the captioned matter deemed it expedient to call for explanation from the FAA for non observance of principles of natural justice. It would be worthwhile to recapitulate the order dated 10.07.2017:
Interim Decision:
Perusal of record reveals something shocking, which renders the first appellate proceedings inherently void. While all the queries in the RTI application were related to Shri R.K. Kasana, C.G.M. (Transport) , DTC; the Commission is astonished to learn that the said Shri R.K. Kasana, CGM heard and adjudicated upon the first appeal of the appellant as first appellate authority under the RTI Act.
Since time immemorial, when the laws were not codified exhaustively; basic set of morals used to & still continue to serve the cause of justice. Such principles are often referred to as Principles or Rules of Natural Justice.
'nemo judex in causa sua', the age old doctrine contemplates that 'no one should act as judge in his own cause'. However, in complete departure from essentials of natural justice and in a classic display of 'non-application of mind' and failure to observe de-minimus regard to judicial discipline and probity attached to his office, the FAA went on to hear and decide an appeal which virtually echoes as a complaint against him. His nexus with the subject matter of appeal is bound to create bias.
In such circumstances, the Commission finds the then FAA, Shri R.K. Kasana to have caused prima facie obstruction in flow of information. To enquire the matter, the Commission, in exercise of power conferred under Section 18(3)(a) of the RTI Act deems it expedient to secure the presence of Shri R.K. Kasana before it. Accordingly, Shri R.K. Kasana is directed to remain present before the Commission....
2. A show cause notice was issued to Shri R.K. Kasana. He is present and heard. It is his contention that he inadvertently assumed the role of FAA in the matter whereas he ought not to have heard the matter. He tenders an unqualified apology in this context. The act to summon the FAA concerned to sensitize him with respect to his duties assigned under the RTI Act.
3. It is not in dispute that the first appellate authority (FAA) under the RTI Act is akin to an in-house judge who performs adjudicatory role. In R.K. Jain vs. Union of India (29.08.2018 - DELHC) :
MANU/DE/3168/2018, a Division bench of the Delhi High Court observed:
.....
9. From the above, it is clear that Section 19(1) makes a provision for filing of an appeal if a person is aggrieved by a decision or inaction of the CPIO. The Appellate Authority in sub-section (1) of Section 19 is classified as an officer senior in rank to the CPIO meaning thereby that under the scheme of RTI Act, the CPIO is a different authority or officer different from an Appellate Authority to whom an appeal lies under sub-Section (1) of Section 19. If the legislative intent, as can be made out on a combined reading of various provisions are taken note of, it would be seen that the legislature only proposes for taking action against CPIO, and not against any other authority like the Appellate Authority or officer to whom the appeal lies. That being so, the legislative intent was that the penal provisions are to be implemented or enforced only against the CPIO and not against any other authority like the senior ranking officer or the Appellate Authority who decides the appeal under Section 19(1). If this was not the legislative intention, the words appearing in Sections 19(1) and (2) would have been differently worded and the construction of the statutory provision would have been entirely different. If the argument canvassed by the petitioner was to be accepted then by that interpretation, we would be expanding the meaning of a CPIO and we would be adding something more into the definition of CPIO than the one as was conceived by the legislature. This is not permissible under law and when the CPIO is only indicated to be officer against whom penal action can be taken under Section 20, we cannot read into the said statutory provision anything more by supplying words or meaning which would enlarge the scope of the penal provisions under Section 20. 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 Appellate Authority is not the custodian of the information or the document. It is only a statutory authority to take a decision on an appeal with regard the tenability or otherwise of the action of the CPIO and, therefore, there is a conscious omission in making the Appellate Authority liable for a penal action under Section 20 of the RTI Act and if that be the scheme of the Act and the legislative intention, we see no error in the order passed by the learned writ Court warranting reconsideration.
4. Since, the FAA who heard the first appeal was not competent to hear the same; the FAO is liable to be set aside on this premise alone. The Commission now proceeds to analyse the information which can be legally disclosed to the appellant. The appellant has sought to know the appointment details, pay scale admissible, details of past postings, date of retirement and details of complaints received or vigilance cases pending against Shri Kasana. The PIO held all information to be personal except the pay scale of the officer concerned.
5. The Commission finds that the queries at sr. no. 1 (details of appointment) ,2 (gross salary structure) , 3 (property returns), 4(sources of income), 7 (educational qualification), 8 (date of scheduled retirement) are not barred from exemption. Such details of a public servant cannot be declared as personal information. However, it is clarified that the appellant shall not be entitled to receive any copy of the documents requested in support viz. educational certificates etc. Rest of the queries 5& 6 (details of complaints and vigilance cases) are clearly personal in nature and barred from disclosure under Section 8(1)(j) of the RTI Act. It has been observed by the Hon'ble Supreme Court the performance of an employee and handling of disciplinary cases is a matter between the employer and employee which cannot be disclosed to a stranger when there is no larger public interest involved. (Vide: Girish Ramchandra Deshpande vs. Cen. Information Commr. and Ors. (03.10.2012 - SC) : MANU/SC/0816/2012 and Canara Bank vs. C.S. Shyam and Ors. (31.08.2017 - SC) : MANU/SC/1068/2017).
6. No case of larger public interest has been setup by the appellant.
7. The PIO shall furnish a revised reply to the appellant in accordance with directions contained in para within 3 weeks of receipt of this decision under intimation to the Commission.
8. The appeal is disposed of. File shall be consigned to record room.
(Yashovardhan Azad) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(R.P.Grover) Designated Officer