Central Information Commission
Kamal Kishore Arora vs Office Of The Controller General Of ... on 20 May, 2020
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
केंद्रीय सचु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ मागग
Baba Gangnath Marg
मनु नरका, नई ददल्ऱी- 110067
Munirka, New Delhi-110067
Decision no.: CIC/CGPDT/A/2018/169937/03511
File no.: CIC/CGPDT/A/2018/169937
In the matter of:
Kamal Kishore Arora
... Appellant
VS
Central Public Information Officer,
Trade Marks Registry
Intellectual Property Bhawan,
Near Antop Hill Head Post Office, S.M Road,
Antop Hill, Mumbai-400037, Maharashtra
...Respondent
RTI application filed on : 08/09/2018 CPIO replied on : 10/10/2018 First appeal filed on : 18/10/2018 First Appellate Authority order : 16/11/2018 Second Appeal dated : 23/11/2018 Date of Hearing : 19/05/2020 Date of Decision : 19/05/2020 The following were present:
Appellant: Shri Gaurav Arora, representative of the appellant, heard over phone.
Respondent: Shri Parag R Bhendarkar, Senior Examiner of Trade Marks & CPIO, heard over phone.
Information Sought:
The appellant has sought the following information:
1. Detailed particulars (viz. number of each & every application etc.), of all the registration-applications(as found to have unlawfully been accepted by the concerned Examiners of Trade Marks while wholly brushing aside "absolute grounds for refusal of registration" and "relative grounds for 1 refusal of registration" in terms of Sections 9 & 11 of the Trade Marks Act, 1999.
2. Detailed particulars (viz. number of each & every application etc.) of all the respective registration-applications,the unlawful acceptance whereof have since been withdrawn in terms of Section 19 of the Trade Marks Act, 1999.
3. Detailed-particulars of entire disciplinary action taken against the concernedExaminer of Trade Marks, who unlawfully accepted the impugned registration applications.
4. And other related information.
Grounds for Second Appeal The appellant has stated in his RTI application that the CPIO did not furnish the desiredand complete information.
Submissions made by Appellant and Respondent during Hearing:
The representative of the appellant submitted that he is not satisfied with the reply of the CPIO as the desired information was not provided to him on any of the points raised in the RTI application. On point (a) &(b), he stated that the information in whatever manner available with the CPIO may be provided to him and not necessarily in any particular format.. On points no (c), (d), (e) & (f), the exemption claimed by the CPIO u/s 8(1)(j) is not proper as they themselves have admitted that show-cause notices are issued to some Examiners and Senior Examiners for acceptance of unscrupulous trade-marks and when any such action is taken against a public servant, the details of such actions should be disclosed to the general public. With regard to points no. (g), (h), (i), (j) &
(k), the reply of the CPIO is totally misleading as he himself has filed a complaint in the organisation which was disposed of on 20.08.2018 without any valid ground.
The CPIO reiterated the contents of his reply dated 10.10.2018. On points (a) &
(b), he submitted that the Mumbai office has a centralized process of working and they do not maintain separate records for the registrations done lawfully or unlawfully. Any registration which is complete in documentary format and other formalities is registered by them.2
Observations:
Having heard the submissions of both the parties and after perusal of the relevant case records, it is noted that the appellant is not satisfied with the reply of the CPIO on all the points raised by him in his RTI application. In view of this, it becomes important to examine all the points with reference to the reply given by the CPIO as was done by the CPIO in his reply dated 10.10.2018.
With regard to point (a) & (b), the appellant had sought detailed particulars i.e. number of each & every application etc., of all the registration- applications as found to have unlawfully been accepted by the concerned Examiners of Trade Marks and particulars of all the respective registration- applications, the unlawful acceptance whereof have since been withdrawn in terms of Section 19 of the Trade Marks Act. The CPIO in his reply had stated that the office does not maintain the information in the manner as mentioned in these points. During the hearing, the CPIO further explained that any application for trade mark is either registered or it is not registered. There is no provision of maintaining separate records for the registrations done lawfully or unlawfully and hence the information which is not available cannot be provided. The Commission does not find any flaw in the reply of the CPIO as under the provisions of the RTI Act, 2005, only such information as is available and existing and held by the public authority or is under the control of the public authority can be provided. The CPIO is not supposed to create information that is not a part of the record.
On points (c), (d), (e) & (f), the appellant has sought the detailed particulars of entire disciplinary action taken so far against the concerned Examiner of Trade marks as are found to have been guilty of unlawful acceptance of the impugned registrations, names and experiences of all such Examiners who were found guilty, details of the memos issued to them alongwith their copies and replies given thereto. The CPIO in his reply had stated that show-cause notices are issued to some Examiners and Senior Examiners for their unethical behaviour and acceptance of unscrupulous trade-marks. However, the details of such notices and the reply of the officers cannot be provided being exempt u/s 8(1)(j) of the RTI Act.3
At this point, it is important to refer to the decision of the Hon'ble Supreme Court in the matter of Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam & Anr (CIVIL APPEAL No.22 OF 2009) decided on August 31, 2017, wherein it had held as under:
"5) The information was sought on 15 parameters with regard to various aspects of transfers of clerical staff and staff of the Bank with regard to individual employees. This information was in relation to the personal details of individual employee such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders etc. etc. In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in Girish Ramchandra Deshpande vs. Central Information Commissioner &Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India &Anr., (2013) 14 SCC 794,it may not be necessary to re-examine any legal issue urged in this appeal.
In Girish Ramchandra Deshpande's case (supra), the petitioner therein (Girish) had sought some personal information of one employee working in Sub Regional Office (provident fund) Akola. All the authorities, exercising their respective powers under the Act, declined the prayer for furnishing the information sought by the petitioner. The High Court in writ petition filed by the petitioner upheld the orders. Aggrieved by all the order, he filed special leave to appeal in this Court. Their Lordships dismissed the appeal and upholding the orders passed by the High Court held as under:
"12. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show-cause notices and orders of censure/punishment, etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer or the appellate 4 authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right. 13. The details disclosed by a person in his income tax returns are "personal information" which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information."
14) In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force."
The ratio of the above mentioned judgment is squarely applicable to the points under consideration. Therefore, the Commission upholds the reply of the CPIO on these points and hence no further relief can be given on these points including points (j) and (k) for which an appropriate reply has been given..
With regard to points no. (g), (h), & (i), the appellant had sought particulars of all the complaints, if any, having been filed by the Advocates/stake-holders while feeling themselves aggrieved by the misconduct and arbitrary & derogatory attitude of the concerned officers, names and addresses of all such Advocates and stake-holders, names of all such officers against whom the complaints were filed etc. The CPIO in his reply has stated that no such complaint was received by their organisation. During the hearing, the appellant strongly contested this reply and submitted that this reply is totally misleading as he himself has filed a complaint dated 18.06.2018 in the organisation which was disposed of on 20.08.2018 without any valid ground. The Commission noted that in another RTI application dated 20.08.2018 of the same appellant who was also heard by the Commission on the same day, there is a letter dated 18.10.2018 on the records of the Commission given by Shri Kundan Lal, Examiner of Patents and Designs, where the CPIO has himself admitted the receipt of a complaint from the appellant. The extract of the reply is reproduced below:
"With respect to your RTI application received by this office on 25.09.2018, based on the comments received from the concerned officer in this office, 5 it is stated that the complaint dated 18.06.2018 is forwarded to the appropriate authority and same is under consideration."
In view of the above mentioned letter dated 18.10.2018, it is clear that the reply of the CPIO on these points is totally misleading as was rightly pointed out by the appellant. Under such circumstances, the CPIO is directed to check the records once again, after seeking assistance from other sections as well and provide a revised point-wise reply to these points to the appellant under the provisions of the RTI Act. The CPIO should note that if he is claiming any exemption, the same should be properly justified. The Commission also expresses its displeasure over the negligent handling of the RTI application by the CPIO, particularly on the points mentioned in the preceding para.
On points (l) & (m), the appellant has sought detailed particulars of the final decision of CGPDTM taken after receipt of the replies/comments and reasons for not taking action on the complaints filed by the Advocates/ stake-holders. The CPIO in his reply had stated that the information sought is not available in their office. The Commission upholds the reply of the CPIO on point (l) and point (m) being not covered u/s 2(f) of the RTI Act, hence no further relief can be given to the appellant on these points.
Decision:
In view of the above, the CPIO is directed to provide a revised reply to the appellant on points (g), (h), & (i) as per the discussions held during the hearing. This direction is to be complied with within a period of 15 days after the lockdown is lifted under intimation to the Commission.
The CPIO is also advised to be careful while handling the RTI applications and in case such a lapse is repeated in future, the Commission will be constrained to take strict action against him.
The appeal is disposed of accordingly.
Vanaja N. Sarna(वनजा एन. सरना) Information Commissioner (सच ू नाआयक् ु त) 6 Authenticated true copy (अभिप्रमाणितसत्यापितप्रतत) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011-26182594 / दिन ंक/ Date 7