Although the CIC had accepted that there was a delay in providing the necessary information to the petitioner, it had not imposed the penalty as required u/s 20(1) of the RTI Act, 2005 - HC: It is well settled that imposing of the penalty is discretionary
15 Jan, 2018O R D E R
FACTS:
The Complainant vide his RTI application sought information on 10 points (A- i to x) regarding Appeal No. E/2772/05 (Emkay Automobiles) and (ii) E/1904/2011 (Steel Structure Workshop), Computerised Report from CESTAT Case Information System, also containing details of Case History, Application History, Appeal/ Application details, etc. with Diary No. and Impugned Order details as available on CESTAT Database for each of the above case, etc The CPIO, CESTAT vide its letter dated 11.11.2016, provided a response received from AR, Excise Appeal Branch dated 09.11.2016. Dissatisfied by the response of the CPIO, the Complainant approached the FAA. The order of the FAA, if any, is not available on the record of the Commission. The matter was earlier scheduled for hearing on 14.11.2017. However, due to the shifting of the CIC office and renovation being undertaken in the premises, the Dy. registrar, vide its notice dated 14.11.2017 rescheduled the hearing on 30.11.2017.
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Mr. R.K. Jain, (Mob. 9810077977);
Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar, CESTAT, New Delhi (M: 9811559708);
The Complainant reiterated the contents of his RTI application and submitted that information pertaining to point A(x) had not been addressed adequately by the CPIO. It was submitted that despite reminders, information had not been received. In the additional documents submitted during the hearing, he referred to the letter dated 02.02.2017 sent to him by AR, CESTAT, Chandigarh informing him that no proceedings were held in Chandigarh and therefore, no information was available. It was argued that this was in contradiction to the letter issued by CPIO, CESTAT, New Delhi dated 17.03.2017, which categorically stated that the information required was part of the file available at Chandigarh and that the same may be obtained from AR, CESTAT, Chandigarh only. It was therefore, conveyed that there was lack of clarity on the part of the concerned CPIO despite instructions of the FAA in the matter.
During the hearing, the Respondent reiterated his written comments dated 10.11.2017, Shri V.P. Pandey, CPIO, CESTAT, New Delhi stated that the RTI application was received by transfer from CESTAT, Chandigarh to CESTAT, New Delhi around 20th October, 2016. In the transfer letter, it was mentioned in Para 1 that the appeal E/2772/2005 was related to CESTAT, New Delhi. In response, a reply was provided stating that both the appeals had already been transferred to CESTAT, Chandigarh. Thereafter, the FAA passed an order on 16.01.2017 in which it was directed that the information could be provided if available at Delhi, if not, then request could be transferred to the concerned bench’s CPIO where the information was available. In compliance to the FAA’s order a letter dated 23.01.2017 was sent to Sh. S.K. Verma, CESTAT, Chandigarh and the Complainant stating that both the matters were already transferred to CESTAT, Chandigarh. In response to that Shri S.K. Verma, CPIO, CESTAT, Chandigarh vide his letter dated 02.02.2017 informed that the RTI application filed by the Complainant was already disposed off and point no. A (vi) in relation to E/2772/2005 was transferred to CPIO, CESTAT, New Delhi since in that matter, proceedings were not held at CESTAT, Chandigarh. With regard to point A (vi), it was stated that the information sought pertained to After Court Supplementary Cause List and that on regular basis all the after court cause list were being taken by the Complainant and this information was already held with him. However for his satisfaction vide reply dated 17.03.2017, the after court cause list containing 08 pages was provided to him again. It was therefore requested to dismiss the Complaint. It was further requested to grant another date of hearing in the matter since he would be out of station for making an appearance before the Hon’ble High Court of Punjab and Haryana at Chandigarh.
The Commission observed that 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 control of the public authority can be provided. The PIO is not supposed to create information that is not a part of the record. He is also not required to interpret information or furnish replies to hypothetical questions. In this context, the Commission would like to reproduce the definition of ‘information’ u/s 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; “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; “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; of the RTI Act, 2005 which is as under:
“information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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.”
A reference could be made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... “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) “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; “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; “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; 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.”
Similarly, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. “....Under the RTI Act “information” is defined under 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; “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; “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; which provides: “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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.”
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”
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 fulfill 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 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.”
The Commission observed that the Hon’ble High Court of Delhi in the matter of R.K. Jain v. V.P. Pandey, CPIO, CESTAT, New Delhi in W.P. (C) No. 4785/ 2017 dated 10.10.2017 adjudicated an order of the Commission dated 17.04.2017 whereby the Respondent was cautioned to exercise due care in future and to ensure that correct and complete information is furnished to the RTI applicants. It was decided that:
“2. The grievance of the petitioner is that although the CIC had accepted that there was a delay in providing the necessary information to the petitioner, the CIC had not imposed the penalty as required under Section 20(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. of the Right to Information Act, 2005. It is well settled that imposing of the penalty is a discretionary measure. In Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 a division bench of this Court had considered the question whether the levy of penalty was discretionary and held as under..........
3. In this case it is apparent that the CIC had in its discretion considered that a order cautioning the CPIO would be sufficient. This Court is not inclined to interfere with such exercise of discretion.”
Furthermore, the Hon’ble High Court in the matter of R.K. Jain v. CIC and Anr. in W.P.(C) 4152/2017 dated 10.10.2017 had held as under:
“5. The question whether the CIC had the discretion to restrict the penalty or whether penalty as provided under Section 20 of the Act is mandatory, is no longer res integra. The said question was considered by a Division Bench of this Court in Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 and the relevant extract of the said decision is set out below....
6. In view of the above, this Court finds no reason to interfere with the discretion exercised by the CIC. The petition is, accordingly, dismissed.”
The Complainant was not able to contest the submission of the Respondent or to substantiate his claims further regarding malafide denial of information by the respondent or for withholding it without any reasonable cause.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the aforesaid judgments of Hon’ble High Court, no further intervention of the Commission is required in the matter. The Complaint stands disposed accordingly.
(Bimal Julka)
Information Commissioner
Citation: Mr. R.K. Jain v. Customs Excise and Service Tax Appellate Tribunal in Complaint No.:-CIC/CBECE/C/2017/191190-BJ, Date of Decision: 30.11.2017