Complainant: There was enormous delay in providing information & penal action should be initiated - CIC: The Complainant was not able to contest the submission of the Respondent or substantiate his claims regarding malafide denial of information
O R D E R
The Complainant vide his RTI application sought information on 03 points (A to C) regarding copies of all records of proceedings and orders except final order passed in appeals mentioned in the RTI application alongwith copies of all Vakalatnamas and Notesheets put up by the Registry and orders thereon, copy of mention memo, if any and direction for out of turn listing/ hearing of the matter, printed copy of Computer generated report from the CESTAT database containing details of Case History, Application History, Appeal/ Application details, etc with diary no. and impugned order details in relation to each case mentioned in the RTI application, current status of the appeals and next date of hearing, if any, etc.
The CPIO, CESTAT, New Delhi, vide its letter dated 22.01.2016, transferred the RTI application u/s 6 (3) r/w section 5 (4) and 5 (5) to the DR, Customs. Dissatisfied on not receiving any response subsequent to the transfer, the Complainant approached the FAA. The FAA, vide its order dated 29.07.2016, directed the CPIO to collect the information from the concerned section and forward the same to the Complainant preferably within 06 weeks. In compliance with the order of the FAA, the CPIO, CESTAT, New Delhi vide its letter dated 10.08.2016 instructed the DR, Customs to forward the information to the RTI Section within 03 weeks. Subsequently, vide reminder letter dated 02.09.2016, the CPIO instructed the DR, Customs and ST to provide information without any delay. Thereafter, vide letter dated 25.11.2016, the CPIO provided 85 pages of documents to the Complainant. Dissatisfied by the response of the CPIO, the Complainant again approached the FAA. The order of the FAA, if any, against this appeal is not on 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.
Facts emerging during the hearing:
The following were present:
Complainant: Mr. R.K. Jain;
Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar, CESTAT, New Delhi and Mr. Mohinder Singh, Deputy Registrar, CESTAT;
The Complainant reiterated the contents of his RTI application and stated that despite the initial order of the FAA dated 29.07.2016 and several reminders of the CPIO and the Complainant himself, partial information was provided to him after a substantial delay of around 11 months from the date of RTI application, vide letter dated 25.11.2016. While referring to the additional documents submitted during the hearing, the Complainant stated that subsequent to filing the instant Complaint before the Commission, the FAA vide its order dated 08.03.2017 directed the CPIO that information on point A(iv) may be provided. Information at points A(iii), A(vii) may be transferred to Allahabad Bench as the information pertained to that Bench. With regard to Point A(vi), it was directed that serious efforts may be made to trace the file and submit compliance report to FAA within a period of 06 weeks from the date of receipt of the order. The Respondent in its reply submitted that the information that was available with them was provided in relation to points A(iv) & A(vi) and for A(iii) & A(vii), the matter was transferred to AR, CESTAT, Allahabad. AR, CESTAT, Allahabad had provided information directly to the Complainant. Consistent efforts were made to trace the information pertaining to point A(vi) and the same was furnished on 19.06.2017. Acknowledging the receipt of the information, the Complainant argued that there was enormous delay in providing information and that penal action should be initiated against the Respondent for not responding within the stipulated time period as per provisions of the RTI Act, 2005. It was also alleged that the action of the CPIO was intentional, deliberate and malafide.
In its written submission dated 10.11.2017, Shri V.P. Pandey, CPIO, CESTAT, New Delhi stated that compliance of the order of the FAA was made on 08.03.2017 by writing a letter to the Dy. Registrar, Customs Branch in relation to points A (iv) and (vi) and transferring the same to the Assistant Registrar, CESTAT, Allahabad for point nos. (iii) and (vii). In response to that the CESTAT, Allahabad provided the information to the Complainant vide letter dated 31.03.2017 and Dy. Registrar, Customs Branch had also provided the information in relation to point A (vi) on tracing the file no. 829/2008 of the Customs Branch which was forwarded to the Complainant vide CPIO’s letter dated 19.06.2017. In relation to point A (iv), the information was already provided by the Dy. Registrar, Customs Branch vide reply dated 24.11.2016 which was forwarded vide CPIO’s letter dated 25.11.2016 to the Complainant. Thus information was provided and compliance of the FAA’s order was made. The Respondent further submitted that if the Commission was not satisfied with his submission, another date of hearing could be granted since he was out of station for making an appearance before the Hon’ble High Court of Punjab and Haryana at Chandigarh.
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.
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 Commission however, advises the CPIO to exercise utmost care and caution in replying to the RTI applications within the stipulated time period. The Complaint stands disposed accordingly.
Citation: Mr. R.K. Jain v. Customs Excise and Service Tax Appellate Tribunal in Complaint No.:-CIC/DOREV/C/2017/192171-BJ, Date of Decision: 30.11.2017