Central Information Commission
Love Gogia vs Ministry Of External Affairs on 10 June, 2020
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No./ िशकायत सं या / Complaint No.:-:-
CIC/MOEAF/A/2019/643969-BJ+
CIC/MOEAF/C/2019/643974-BJ+
CIC/MOEAF/A/2019/644037-BJ
CIC/MOEAF/C/2019/644045-BJ
Mr. Love Gogia
(E mail [email protected])
....अपीलकता/Appellant
.... िशकायतकता /Complainant
VERSUS
बनाम
US (RTI) & CPIO,
Ministry of External Affairs, Room No. 1024,
A-Wing, Jawaharlal Nehru Bhawan,
23-D, Janpath, New Delhi - 11
... ितवादीगण /Respondent
Date of Hearing : 10.06.2020
Date of Decision : 10.06.2020
ORDER
RTI - 1 File No. CIC/MOEAF/A/2019/643969-BJ Date of RTI application 25.04.2019 CPIO's response Not on record Date of the First Appeal 08.06.2019 First Appellate Authority's response 13.06.2019 Date of diarised receipt of Appeal by the Commission 26.06.2019 FACTS The Appellant vide his RTI application sought information on 09 points regarding reasons on record for not providing personal opportunity for audition, in compliance of principles of natural justice, to the appellant as per his prayers in his first appeal application dated 01.02.2019 with registration No. MOEAF/A/2019/60009 by Director (ADP & RTI)- cum- Appellate Authority; reasons on record for not passing speaking order (i.e. giving detailed Page 1 of 9 and proper justification for the decision arrived at) on his first appeal application dated 01.02.2019 with registration No. MOEAF/A/2019/60009 by Director (ADP & RTI)-cum- Appellate Authority as per appellant's payer and as per DoPT Memo No. 1/3/2008-IR dated 25.04.2008 and Hon'ble Court and CIC judgments and other issues related thereto. None of the records relating to CPIO's response, if any, is available on the record of the Commission. Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 13.06.2019, denied disclosure of information under Section 8(1) (j) of the RTI Act, 2005.
RTI - 2 File No. CIC/MOEAF/C/2019/643974-BJ Date of filing of RTI application 25.04.2019 CPIO's response Not on record Date of filing the First appeal 08.06.2019 First Appellate Authority's response 13.06.2019 Date of diarised receipt of Complaint by the Commission 26.06.2019 FACTS:
The Complainant vide his RTI application sought information on 09 points regarding reasons on record for not providing personal opportunity for audition, in compliance of principles of natural justice, to the appellant as per his prayers in his first appeal application dated 01.02.2019 with registration No. MOEAF/A/2019/60009 by Director (ADP & RTI)- cum- Appellate Authority; reasons on record for not passing speaking order (i.e. giving detailed and proper justification for the decision arrived at) on his first appeal application dated 01.02.2019 with registration No. MOEAF/A/2019/60009 by Director (ADP & RTI)-cum- Appellate Authority as per appellant's payer and as per DoPT Memo No. 1/3/2008-IR dated 25.04.2008 and Hon'ble Court and CIC judgments and other issues related thereto. None of the records relating to CPIO's response, if any, is available on the record of the Commission. Dissatisfied due to non-receipt of any response from the CPIO, the Complainant approached the FAA. The FAA, vide its order dated 13.06.2019, denied disclosure of information under Section 8(1) (j) of the RTI Act, 2005.
RTI - 3 File No. CIC/MOEAF/A/2019/644037-BJ
Date of RTI application 07.04.2019
CPIO's response 08.04.2019
Date of the First Appeal 24.05.2019
First Appellate Authority's response 13.06.2019
Date of diarised receipt of Appeal by the Commission 27.06.2019
Page 2 of 9
FACTS
The Appellant vide his RTI application sought information on 04 points regarding his RTI application/ First Appeal dated 17.01.2019 and 01.02.2019 respectively and letter dated 16.03.2019 on the subject "Application for holding a proper hearing & for passing detailed speaking order to First Appeal under RTI Act 2005"; copy of all the note-sheets put-up for processing / disposing of the afore-mentioned RTI application dated 17.01.2019 by concerned unit of Ministry of Ext. Affairs New Delhi; copy of all the documents on which these file notings rely upon; Copy of all the note-sheets put-up for processing / disposing of the afore-mentioned First Appeal Application dated 01.02.2019 by concerned unit of Min. of Ext. Affairs New Delhi and issues related thereto.
The CPIO vide letter dated 08.04.2019 denied disclosure of information under Section 8(1)(j) of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 13.06.2019, upheld the CPIO's response.
RTI - 4 File No. CIC/MOEAF/C/2019/644045-BJ Date of filing of RTI application 07.04.2019 CPIO's response 08.04.2019 Date of filing the First appeal 24.05.2019 First Appellate Authority's response 13.06.2019 Date of diarised receipt of Complaint by the Commission 27.06.2019 FACTS:
The Complainant vide his RTI application sought information on 04 points regarding his RTI application/ First Appeal dated 17.01.2019 and 01.02.2019 respectively and letter dated 16.03.2019 on the subject "Application for holding a proper hearing & for passing detailed speaking order to First Appeal under RTI Act 2005"; copy of all the note-sheets put-up for processing / disposing of the afore-mentioned RTI application dated 17.01.2019 by concerned unit of Ministry of Ext. Affairs New Delhi; copy of all the documents on which these file notings rely upon; Copy of all the note-sheets put-up for processing / disposing of the afore-mentioned First Appeal Application dated 01.02.2019 by concerned unit of Min. of Ext. Affairs New Delhi and issues related thereto.
The CPIO vide letter dated 08.04.2019 denied disclosure of information under Section 8(1)(j) of the RTI Act, 2005. Dissatisfied by the response, the Complainant approached the FAA. The FAA, vide its order dated 13.06.2019, upheld the CPIO's response.
HEARING:
Facts emerging during the hearing:
The following were present:Page 3 of 9
Appellant/ Complainant: Mr. Love Gogia through TC;
Respondent: Mr. T. D. Bhutia, Deputy Secretary (PB & Pension), M/o External Affairs through TC;
The Appellant/ Complainant reiterated the contents of the RTI applications and stated that in CIC/MOEAF/A/2019/643969-BJ+ CIC/MOEAF/C/2019/643974-BJ, no reply was provided by the CPIO. The First Appeal was also decided by the FAA by way of an unreasoned order claiming a blanket exemption under Section 8 of the RTI Act, 2005 without specifically mentioning the sub-section under which the information was denied and without granting him an opportunity of hearing. Similarly, in CIC/MOEAF/A/2019/644037-BJ + CIC/MOEAF/C/2019/644045-BJ, the information was incorrectly denied u/s 8 (1) (j) of the CPIO without any reasoned order. The first appeal was also mechanically decided without granting him an opportunity of hearing. The Appellant/ Complainant also prayed for imposition of penalty against the CPIO for malafidely denying him the information whereas similar information pertaining to the RTI applications/ First Appeals filed by him with the Public Authority was disclosed to his wife Ms. Tannu Dua on her RTI application In its reply, the Respondent re-iterated the response of the CPIO/ FAA as also their written submission and stated that in the garb of public interest, the Appellant was misusing the RTI mechanism by filing multiple RTI applications pertaining to his wife with whom he was having several matrimonial disputes pending before Courts. While stating that responding to the multiple RTI applications filed by the Appellant was causing disproportionate diversion of the meager resources, the Respondent submitted that all the issues raised in the instant Appeals/ Complaints essentially pertained to the RTI application pertaining to the misuse of HRA by one of their employee Ms. Tannu Dua. On being queried if he had approached any higher judicial forum in the matter, the Appellant submitted that he had approached the High Court of Delhi where the Respondent Public Authority was also a party. The representative of Respondent submitted that they were unaware about any such matter being filed where the Public Authority was made a party. . The Appellant/ Complainant expressed his discontent regarding the Respondent's submissions and stated that a copy of the written submission filed by the Respondent was not provided to him. The Respondent agreed to forward a copy of the written submission to the Appellant/ Complainant on his email id: [email protected].
The Commission was in receipt of a written submission from the Appellant dated Nil inter alia on four grounds that the A. Information sought is not personal information of an individual B Information is sought by the spouse, hence should be provided. C. Disclosure of information is in public interest and D. Denial of information by the CPIO / FAA is on mala fide ground. The Appellant thus prayed for allowing his applications (second appeals / complaints under reference above) in the interest of justice and spirit of RTI, to provide him the copy of the Show cause notices, if any issued by the Commission to the public authority, copy of the written submission made by the public authority in response to the notice issued by the Commission be provided to Page 4 of 9 him too and an opportunity of hearing on every scheduled date of hearing in complaints cases. In support of his contention, the Appellant referred to the following decisions:
A Information sought is not personal information of an individual:
1. R. Rajagopal Vs. State of Tamil Nadu (Supreme Court of India
2. Writ Petition (M/S) No. 2489 of 2016 (High Court of Uttarakhand)
3. Kashinath J Shetye Vs PIO, Electricity Department Goa (High Court of Bombay)
4. P. Rajasekar Vs CPIO RBI (Decision No. CIC/SG/A/2011/002976/17296 dated 10.02.2012) (CIC)
5. CIC/SG/A/2012/000342/17862 (CIC)
6. Kashinath Shetye vs Dinesh Vaghela (High Court of Bombay, 2009) B Information is sought by the spouse, hence should be provided.
7. Smt. Sunita Jain Vs. Pawan Kumar Jain and others W.A. No. 168/2015 and Smt. Sunita Jain Vs. Bharat Sanchar Nigam Limited and others W.A. No. 170/2015 dated 15.05.2018 (High Court of MP, Division Bench)
8. Rajesh Ramachandra Kidile vs. Maharashtra SIC and Ors in W.P. No. 1766 of 2016 dated 22.10.2018 (High Court of Bombay (Nagpur Bench)
9. Ms. Asmita Sachin Waman Vs CPIO Ministry of External Affairs, CIC/PASOF/A/2018/155140-BJ dated 15.05.2020 (CIC)
10. File No. CIC/RM/A/2012/000038/LS (CIC)
11. Kusum Sharma Vs. Mahinder Kumar Sharma (FAO 369/1996 decided on 14th January 2015), (Delhi High Court)
12. Jasleen Singh Vs Gurleen Kaur (CRM-M 36522/2019 (O&M)) decided on 06.01.2020 (Punjab and Haryana High Court)
13. CIC/SA/A/2014/000433 (CIC)
14. Writ Petition No. 10690 of 2017 on dated 06.09.2017 (High Court of Bombay (Aurangabad Bench) Page 5 of 9 C. Disclosure of information is in public interest
15. A.M.Kalra v. PEC University of Technology No. CIC/RM/A/2014/004365-SA (CIC) D. Denial of information by the CPIO / FAA is on mala fide ground
16. Bobby Luthra Sinha Vs CPIO, Ministry of External Affairs CIC/MOEAF/A/2017/160980 dated 22.05.2018 (CIC)
17. Mr. Avishek Goena Vs Union of India. Writ Petition No. 33290 of 2013 (High Court of Calcutta)
18. Sangita Kumari Vs Railway Board CIC/AB/C/2016/000044-AB dated 31.07.2017
19. File No. CIC/MOEAF/A/2019/646057 & CIC/MOEAF/C/2019/646092 (CIC)
20. Ridge Vs. Baldwin [1963] UKHL 2
21. Uma Nath Pandey v. State of U.P. AIR 2009 SC 2375 (Supreme Court of India)
22. Manohar Vs. State of Maharashtra, Civil Appeal No.9095/2012 (Supreme Court of India)
23. CIC/MOEAF/A/2018/127093 titled Sayida Begum Vs CPIO Ministry of External Affairs on dated 21.10.2019 (CIC)
24. CIC/MoEAF/A/2018/133436 titled Kailash Chand Gupta Vs CPIO Ministry of External Affairs on dated 21.10.2019 (CIC) The Commission was also in receipt of a written submission from the Respondent dated 08.06.2020 wherein it was inter alia stated that the information could not be provided u/s 8 (1)(j) of the RTI Act, 2005 as it had no relation with the public authority and disclosure of which would result in an unwarranted invasion in the privacy of an individual. It may also be mentioned that the applicant sought copies of letter/note submitted by an employee under fiduciary capacity to her employer regarding certain allowances (HRA) payable to her.
Moreover, the employee Ms. Dua vide her note dated 18.07.2018 & 21.12.2018, had intimated the Ministry that she is engaged in a serious matrimonial dispute with her husband and that she has filed petitions against Mr. Gogia for divorce and domestic violence in the Hon'ble Court, Faridabad. Also, through her note dated 01.02.2019, Ms. Tannu Dua informed the Ministry that matter regarding matrimonial dispute between her and Mr. Gogia is sub-judice and any information pertaining to her may not be divulged to Mr. Gogia through RTI, who only intends to threaten and pressurize her to withdraw cases against him. Keeping in view the facts above, CPIO wishes to bring to the kind notice of Hon'ble Commission that Shri Gogia has been filing innumerous RTI Applications seeking information relating to his estranged wife, Ms. Tannu Dua every now & then and it is very much evident that all of these arise out of the ongoing bitter matrimonial dispute between him and Ms. Dua. The RTI Act aims to promote transparency and Page 6 of 9 accountability in the working of the public authority; however, in the instant case, RTI Applications filed by the appellant do not have any relation to public authority or interest, rather these are purely motivated by personal vengeance, which indeed reflects sheer misuse of RTI Act. Besides, examination of such RTI Applications & complaints filed by Mr. Gogia, preparation of replies to RTI queries divert the limited resources available to the Ministry disproportionately from doing normal public activity towards a matrimonial dispute.
Having heard both the parties, the Commission observed that no response was provided to the RTI application under consideration in CIC/MOEAF/A/2019/643969-BJ+ CIC/MOEAF/C/2019/643974-BJ and that denial of information u/s 8 (1)(j) in the RTI application under consideration in CIC/MOEAF/A/2019/644037-BJ + CIC/MOEAF/C/2019/644045-BJ was without any justification/ reasons. In this context, 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 on the issue of the duties and responsibilities of the CPIO, 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 Commission also referred to the decision of the Hon'ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was 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."
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 Page 7 of 9 information and in case of default or dereliction on his part, the penal action is to be invoked against him only."
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
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 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 Page 8 of 9 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."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Respondent (CPIO) to reexamine the RTI applications and provide a point wise response to the Appellant in accordance with the provisions of the RTI Act, 2005 alongwith a copy of their written submission submitted the Commission within a period of 30 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.
The Appeals/ Complaints stand 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
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26186535/ [email protected]
दनांक / Date: 10.06.2020
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