Complaint against delay in providing information about non operational BSNL lines - CIC: the complainant cannot, as a matter of right, claim audience in the penalty proceedings which are between the CIC and the erring information officer
5 Jul, 2014Information sought:
The applicant has sought the following information:-
1. Numbers of lines that were non-operational for period more than 3 days (based on your computerized system-monitoring data).
2. Numbers of Complaints received as phone dead & had remained unresolved for period exceeding 3 days (based on Complaints lodged by aggrieved Customers).
3. Number of such ‘dead’ lines that were issued Rent rebate by system in the subsequent month, automatically.
4. Number of affected lines that were issued rebate after a delay of one month or more.
5. Number of affected lines that were issued rebate after a delay of three months or more.
6. Number of affected lines that were issued rebate after a delay of six months or more.
7. Number of affected lines that were issued rebate without written / oral complaints.
8. Number of affected lines that were issued no rebate but actually qualified for rebate based on you standard compensation policy.
9. Total Rent rebate (in Rs. For each of the Exchange) that was ‘due’ in respective year (yearby- year) to such affected lines if it was automatic.
10.Actual Rent Rebate (in Rs. For each of the Exchange) that was ‘granted’ in respective year (year-by-year) to such affected lines.
Grounds for the Second Appeal:
The CPIO has denied the information under 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; & (j) of the RTI Act.
Relevant Facts emerging during Hearing held on 29/04/2014:
The following were present Appellant: Mr. Purushottam R. Ralkar through VC M: 09881200234 Respondent: Mr. B C Borkar CPIO through VC M: 942301012410
The appellant stated that the crux of the issue is that he has been facing frequent disruption in the telephone services for almost four to five years and inspite of all efforts the respondents have not taken steps to resolve the problem. He further stated that as per the BSNL’s own rules they are required to allow a rebate suo motu if the services remain disrupted for three days or more but inspite of assurances no such rebate was allowed and he had to run from pillar to post for getting the rebate. He added that the PIO’s reply was received after 30 days and that too wrongly claiming exemption under Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; & (j) of the RTI Act without giving any reasons as to how the competitive position of the BSNL will be harmed by the release of the information and/or the information is personal in nature. While concluding the appellant accepted that subsequently the information was provided on 15/10/2013 i.e. after a delay of over one year and pleaded that penal proceedings should be initiated against the respondent.
Decision notice dated 29/04/2014: The information has been received by the appellant. The information can be denied only if it is exempt as per the provisions of Section 8 or Section 9 of the RTI Act. Further, while denying the information the authority withholding the information must show satisfactory reasons and such reason should be germane and based on some material. Sans this consideration the information cannot be denied. In the instant case the CPIO has denied information merely quoting Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; & (j) of the RTI Act but no satisfactory reason(s) has been shown to justify the denial. By not furnishing the information the concerned CPIO has rendered himself liable for imposition of penalty in terms of the provisions of 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. 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 RTI Act. However, before imposing any such penalty, we would like to give an opportunity to the CPIO to explain whether he had any reasonable cause for not providing the complete correct and timely information to the appellant. Accordingly, we direct the FAA/PGMT, BSNL Pune to call for the explanation of the then CPIO for not providing the information sought by the appellant. The explanation of the CPIO as aforesaid along with the FAA’s comments should be sent to the Commission by post and also by e-mail at rtiorganize@gmail.com on or before 30/05/2014.
The hearing is adjourned for 11/06/2014 at 04.00 PM.
Relevant Facts emerging during Hearing on 11/06/2014: The following were present Respondent: Mr. Arvind Vadnerkar the then CPIO through VC
The Commission has received written submissions dated 29/05/2014 from the then CPIO Mr. Arvind Vadnerkar informing that the IPO initially received with the RTI Application dated 02/08/2012 was wrongly drawn in favour of the CPIO and the same was returned to the appellant for correction in favour of the Account officer. The corrected IPO was received by the APIO on 22/08/2012 and the reply was provided timely to the appellant on 20/09/2012 i.e. within 30 days from the receipt of the RTI fee. Further, justifying the denial of information under Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; & (j) of the RTI Act the then CPIO has contended that the applicant had asked for the data pertaining to all the telephones which were non operational, number of complaints received, rebate due and given to all the subscribers in the BSNL Pune. He has explained that there is stiff competition in the telecom sector and he was of the opinion that the information could be misused against the company’s commercial interests by competitors, if leaked to them. He has stated that the phones lines remain down due to excessive digging by various municipal agencies and permission is not given easily to restore them and the real reasons are not disclosed to customers in general but such information is published and this really severely tarnishes the image of the BSNL. Shri Arvind Vadnerkar has also informed that the appellant had filed another RTI application on 26/06/2012 asking information about the rent rebate procedures in the BSNL, Pune and details of the rebate given to him for his telephone number 25662429 and all the information were provided to him within the prescribed time. Shri Arvind Vadnerkar during his oral submissions stated that it was his bonafide belief that the information, if provided, would damage the reputation and the competitive position of the BSNL which operates in a highly aggressive environment. He has vehemently pleaded that there was no intent whatsoever to deliberately delay/deny the information.
Decision Notice:
The Hon’ble Delhi High Court in its decision dated 01/06/2012, in the matter of Registrar of Companies & Ors. vs. Dharmendra Kumar Garg & Anr. W.P.(C) 11271/2009, while quashing the showcause notice issued by the Commission 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. 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 RTI Act has held as under. “61. ………………….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 show- cause 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 CPIO in every other case, without any justification, it would instill a sense of constant apprehension on 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 consequence 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………...” Keeping in mind the aforesaid submissions of the then CPIO Shri Arvind Vadnerkar, it cannot be said that the information has been withheld malafidely or deliberately without any reasonable cause. Imposition of penalty on the respondent, therefore, would not be justified. The appellant has sent a mail requesting rescheduling of the hearing on the grounds that he is out of the country, however, his participation in the penalty proceeding is not necessary as observed by the Hon’ble High Court of Delhi in its decision dated 9/1/2012 (LPA 764/2011 Ankur Muthreja vs. Delhi University) holding as under:
“10. While in deciding the appeal, the CIC is concerned with the merits of the claim to information, in penalty proceedings, the CIC is concerned with the compliance by the information officers of the provisions of the Act. A discretion has been vested in this regard with the CIC. The Act does not provide for the CIC to hear the complainant or the appellant in the penalty proceedings, though there is no bar also there against if the CIC so desires. However, the complainant cannot as a matter of right claim audience in the penalty proceedings which are between the CIC and the erring information officer. …..
11. The penalty proceedings are akin to contempt proceedings, the settled position with respect whereto is that after bringing the facts to the notice of Court, it becomes a matter between the court and the contemnor and the informant or the relator who has brought the factum of contempt having been committed to the notice of the court does not become a complainant or petitioner in the contempt proceedings. His duty ends with the facts being placed before the Court though the Court may in appropriate cases seek his assistance…….”
The matter is closed.
BASANT SETH
Information Commissioner
Citation: Mr. Purushottam v. BSNL in File No. CIC/BS/A/2013/000720/5318