Hearing of show cause notice for imposing penalty u/s 20 (1) against PIO of CESTAT - CIC: Complainant could not substantiate his claims regarding malafide denial of information; Respondent to sensitize & educate the concerned officials about RTI Act
Hearing of show cause notice for imposing penalty u/s 20 (1) against PIO of CESTAT - CIC: The Complainant could not substantiate his claims regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause; Respondent to sensitize, familiarize and educate the concerned officials about the provisions of the RTI Act, for effective discharge of its duties and responsibilities
O R D E R
The Commission vide its order dated 28.11.2016 had issued a show cause notice against Shri S.K. Verma, then CPIO, CESTAT and Shri V.P. Pandey, then Deemed CPIO (presently CPIO, CESTAT) directing them to submit their explanation to the Commission on or before 10.01.2017 explaining why action under Section 20 (1) of the RTI Act, 2005 should not be initiated on the ground that no information was provided to the Complainant within the stipulated period of time.
The Commission(IC-SB) vide its interim decision dated 21.03.2017 had stated that due to some administrative reasons, the matter could not be taken up for hearing by IC-SB and with the revised allocation of work among the Registries w.e.f 10.01.2017, the work relating to CESTAT had been allotted to IC-BJ, therefore, the case was transferred to this Registry.
Facts emerging during the hearing on 19.06.2017: The following were present:
Complainant: Mr. R. K. Jain; Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar, CESTAT, New Delhi;
The Commission was in receipt of a written explanation of Mr. S.K. Verma, Assistant Registrar, then posted at CESTAT, Chandigarh dated 07.02.2016 and the written explanation of Mr. V.P. Pandey, CPIO, CESTAT, New Delhi dated 20.03.2017, against the Show Cause Notice contained in the Commission’s order dated 28.11.2016.
The Commission was also in receipt of a reply by the Complainant dated 14.04.2017 against the written submissions of Mr. S.K. Verma, Assistant Registrar, then posted at CESTAT, Chandigarh Mr. V.P. Pandey, CPIO, CESTAT, New Delhi. The Respondent Mr. V.P. Pandey, CPIO, CESTAT, New Delhi, (present during the hearing) while praying to drop the Show Cause proceedings instituted against him stated that at the time of filing of RTI application neither was he the CPIO nor did he claim any exemption in the matter. It was also submitted that after the order of the FAA No. 83/2016 dated 21.06.2016, he had forwarded the order to Shri S.K. Verma Assistant registrar, CESTAT, Chandigarh for providing the information vide letter dated 30.06.2016, since the information was at CESTAT, Chandigarh and it fell under his jurisdiction. The Commission was also in receipt of a written submission of Mr. S.K. Verma, Assistant Registrar, CESTAT, Kolkata dated 16.06.2017, wherein a request was made to adjourn the matter to any date between 05.07.2017 to 10.07.2017 or any date after 13.07.2017 through video Conferencing facility since he had been transferred to Kolkata and files relating to the present matter were still lying in Chandigarh and hence he would not be able to contest the matter effectively. In the meanwhile, the Complainant vehemently argued that no explanation had been filed by the Respondent despite direction of the CIC. Shri V. P. Pandey did not respond to the RTI application though it was transferred to him on 04.11.2015. His reply came only on 30.06.2016 i.e. after a delay of 206 days. It was alleged that the plea of matter being subjudice was falsely taken and that in similar cases information was provided. The original RTI application was also transferred with a delay of 19 days. The order of the FAA had also not been complied wherein a direction was given to the CPIO to provide copies of documents/information sought by the Complainant within a period of 04 weeks. Shri Verma had wrongly claimed misplacement of the records at Point A(i) which had nothing to do with the case file. It was therefore, alleged that the CPIO had deliberately and malafidely denied information. It was emphasized that taking recourse to shortage of staff and voluminous data being sought was frivolous and untenable in the present case. The Complainant prayed that a penalty of Rs.25000/- be imposed on Shri S. K. Verma, AR, CESTAT and Shri V. P. Pandey for individually, deliberately and malafidely obstructing information without any reasonable cause and that disciplinary proceedings may be instituted against them.
Keeping in view the facts of the case and the submissions made by both the parties and following the principles of natural justice by providing a fair and reasonable hearing to all the parties against whom the Show Cause notice was issued, the Commission observed that proper service of notices to the concerned parties had not been issued properly. The Commission therefore instructs the Dy. Registrar to issue fresh notices of hearing to all the concerned parties in the matter and fix another hearing in the month of August, 2017 following laid down procedure.
The matter stands adjourned.
Note: Subsequent to instruction issued by the Commission, the Dy. Registrar vide its notice dated 31.07.2017, issued notice for hearing on 18.08.2017
Facts emerging during the hearing on 18.08.2017: The following were present: Complainant: Mr. R. K. Jain; Respondent: Mr. V. P. Pandey, CPIO & Assistant Registrar, CESTAT, New Delhi; Mr. S. K. Verma, Asst. Registrar, CESTAT, Kolkata in person;
The Respondent no.01 vide his oral and written submission dated 20.03.2017 while praying to drop the Show Cause proceedings instituted against him stated that at the time of filing of RTI application neither was he the CPIO nor did he claim any exemption in the matter. It was also submitted that after the order of the FAA No. 83/2016 dated 21.06.2016, he had forwarded the order to Shri S. K. Verma Assistant registrar, CESTAT, Chandigarh for providing the information vide letter dated 30.06.2016, since the information was at CESTAT, Chandigarh and it fell under his jurisdiction. It was also explained that with regard to the transfer of RTI application to him u/s 5(4) r/w 5(5) and r/w 7(3) of the RTI Act, 2005, it was explained that the Complainant had filed a separate RTI application with ID no. 10-179/5 wherein similar nature of information with regard to Excise Appeal no. E-3561/2012 was provided to the Complainant vide letter dated 15.03.2016 enclosed with 37 pages. The Commission’s attention was drawn to the number of repetitive RTI applications filed by the Complainant from time to time thus crippling the functioning of the Public Authority besides causing undue hardships to the employees who were otherwise struggling to cope up with the normal workload. He further contended that after the order of the FAA was issued, the said order was transferred to CESTAT, Chandigarh and therefore his role as a Deemed CPIO or CPIO was completed and no further action was required at his end.
The Respondent no.02 vide their written explanation dated 07.02.2016/2017 to the show cause notice issued by the Commission, submitted that an RTI application was filed by the Complainant which was duly responded by him vide letter dated 04.11.2015 wherein information with respect to Appeal no. E/277-280/2012 and E-/298/2012 was denied from disclosure u/s 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the RTI Act,2005. However, for information with respect to other Appeal numbers, assistance was sought from the Deemed CPIO, Mr. V.P Pandey (herein Respondent no.01) to provide requisite information. Thereafter, dissatisfied by his response, the
Complainant approached the FAA. The FAA vide its order dated 21.06.2016 directed the CPIO, CESTAT to provide requisite information to the Complainant within a period of 04 weeks from the date of receipt of its order. The said order of the FAA was received by the CPIO, CESTAT, New Delhi on 30.06.2016. Thereafter, Respondent no. 01, the CPIO, CESTAT, New Delhi forwarded the said FAA order to him vide letter dated 30.06.2016 which was received in the O/O CESTAT, Chandigarh on 05.07.2016. However, the Respondent explaining on the issue regarding the delay caused in providing information to the Complainant, submitted that CESTAT, Chandigarh was a newly constituted Bench and started functioning w.e.f. 01.12.2015 with acute shortage of staff. Moreover, it was informed that the records received from CESTAT, New Delhi were very disorganised. It was also submitted that the letter received from CPIO, CESTAT, New Delhi which was registered as an RTI application at CESTAT, Chandigarh was disposed of vide its letter dated 29.08.2016 by providing the information to the Complainant running into 71 pages with an assurance to the Complainant that the remaining information would be provided to him after the relevant records were traced. Thereafter, the relevant records were traced and the remaining information was furnished to the Complainant with 52 pages vide letter dated 06.02.2017. It was further argued that the response provided by him dated 29.08.2016 u/s 7 of the RTI Act, 2005 was appealable in nature but his response was never challenged by the Complainant before FAA. However, a complaint was filed by the Complainant before the Commission. It was also alleged that the Complainant had filed the present Complaint before the Commission on 14.11.2015 much before the order passed by the FAA.
The Respondent no. 02 informed the Commission that a matter had been challenged by him against the decision of the Commission in File no CIC/SB/C/2015/000049 dated 28.02.2017 before the Hon’ble Punjab & Haryana High Court in WP(C) no. 16241 of 2017 and that the issues involved in this matter were similar to the one challenged by him before the Hon’ble Court. In the aforesaid matter, S. K. Verma Vs. R. K. Jain and Ors., the Judge vide its order dated 10.08.2017 had issued a notice of motion for 14.09.2017 to Respondent 2 only. The Complainant expressed that he was unaware of any such order. The Respondent Shri Verma was directed to deliver a copy of the aforesaid order to the Complainant for his ready reference.
The Respondent no.02 made further allegation against several and voluminous numbers of RTI applications/First Appeals/Complainants filed by the Complainant against different regional branches of the Respondent Public Authority with the sole intention to cripple the normal functioning of CESTAT and due to shortage of staff. The Tribunal was facing great hardship in coping up with the administrative/judicial work of CESTAT. It was submitted that CESTAT, till date had provided information running into 2 lakh pages and had allowed several inspection of records which showed that the Respondent Public Authority had never caused any obstruction of information to the Complainant. Reliance was placed on the decision of the Commission in File no. 11/85/2006/CIC dated 18.02.2009 and in F. no. 11/78/2006/CIC dated 10.04.2006 and in File no. CIC/MA/A/2006/258 to and similar other decisions of the Commission to substantiate his claim further. A further reference was drawn to the decision of the Hon’ble Supreme Court in the matter of CBSE v. Aditya Bandopadhyay & ors. In Civil Appeal no. 6454/2011 wherein it was held as under:
“The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquillity and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritizing information furnishing, at the cost of their normal and regular duties.”
The attention of the Commission was drawn towards the decision of the following observation of the Hon’ble Delhi High Court in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 which 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.”
The Complainant strongly objected to the submissions made by the Respondents and reiterating the contents of his written submission placed before the Commission, stated that the Respondents had caused malafide obstruction of information. Explaining the details of the case, the Complainant stated that the Respondent no.02 had wrongly denied disclosure of information u/s 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the RTI Act,2005. The said exemption claimed by the Respondent no.02 was denied by the FAA in its order dated 21.06.2016. It was also alleged that the Respondent had wrongly claimed misplacement of case records as sought in the RTI application in order to delay and deny the information. The records sought by him pertaining to the case of Century Metal was decided on 04.12.2015 and therefore information should have been provided by the Respondents thereafter. It was contended that despite the transfer of the RTI application on 04.11.2015, a response was provided to him only on 30.06.2016. It was therefore alleged that there was a delay of 206 days in providing information to him despite the transfer of the RTI Application, the order of the FAA and several reminder by him. Furthermore, he objected to the reference placed by the Respondent of the decision of the Hon’ble Supreme Court in CBSE vs. Aditya Bandhopadhya and stated that the plea undertaken by the Respondent no. 02 regarding shortage of staff or the inefficient working of the subordinate staff/head clerk was not justified and placed his reliance on the decision of the Commission in Order no. CIC/SB/C/2015/000049 dated 28.02.2017.
A further reference was also drawn to the Hon’ble Madras High Court decision in the case of Dy. Commissioner of Archives and Historical vs. State Chief Information Commissioner-W.P no. 20372 of 2009 decided on 07.01.2010 and the decision of the Commission in Case no. CIC/AD/A/2012/003387/SA in this regard. It was also alleged that the Respondent no. 02 had in the number of cases, been imposed penalty by the Commission but nothing had brought any change in his attitude and that the Respondent was in the habit of deliberately, malafidely and persistently obstructing information by providing incorrect responses to the RTI application
It was further argued that the allegations made by the Respondent regarding his malicious intention in filing numerous RTI applications to obstruct the working of the Respondent Public Authority was baseless and devoid of any merit. It was further informed that in a matter placed before the Commission in order no. CIC/SS/A/2012/000802 & 1477 dated 13.03.2013, the Respondent went on for a second Appeal against the said order of the FAA before the Commission, wherein the Commission in Decision no. CIC/SS/A/2012/000802 and CIC/SS/A/2012/001477 dated 13.03.2013 had rejected the Second Appeal filed by the Respondent in toto and furthermore dismissed the allegations made by the Respondent against the frivolous RTI applications made by him.
A reference was drawn to the letter of the then Hon’ble Chief Justice of India (1993(40) SCC 119) and the favourable decisions by the Hon’ble Delhi High Court wherein suitable directions were given in larger public interest. It was asserted that he was a public spirited person and laid emphasis on the observation of the Hon’ble Apex Court in the case of Indirect Tax practitioners Association v. R.K Jain-2010(256) ELT 641(S.C) wherein the Court had described him as a whistleblower and had appreciated his role in moving RTI applications in larger public interest in a recent case of Manoj H Mishra v. Union of India (SLP(C) no. 9126 of 2010, dated 09.04.2013). It was also informed that he had due apprehensions regarding various irregularities, manipulations and corrupt practices ongoing in the CESTAT and the act of the CPIO in denying information to him has been exhibiting miscarriage of justice. Moreover, the reference placed by the Respondent no. 02 on the decision of the Hon’ble Delhi High Court in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 was incorrect and stated the ratio of the said judgment could not be placed in the present matter.
Thus, the Complainant prayed for penal action against the Respondents u/s 20 of the RTI Act, 2005 and initiation of disciplinary proceedings against them for causing malafide obstruction and delay of information. Hearing both the parties and on perusal of the records, the Commission observed that information, as available on record, had been provided to the Complainant. Furthermore, the Commission noted that though there was a delay caused in delivery of information but there was no malafide intention on the part of the Respondents to obstruct free flow of information. The Commission felt satisfied by the reliance placed by the Respondent to the decision of the Hon’ble Supreme Court of India in CBSE & Anr. Vs. Aditya Bandopadhyay & Ors., SLP(C) NO. 7526/2009 wherein it was held as under:
“…..The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritizing information furnishing, at the cost of their normal and regular duties.”
With regard to the issue regarding the delay caused by Respondents in providing information to the Complainant despite the order of the FAA to provide information within a stipulated time period, the Commission would like to place its reliance to the OM No. 1/18/2011-IR of DoP&T dated 16.09.2011 and the judgment pronounced by Hon’ble Supreme Court of India in case of CBSE and Anr. Vs. Aditya Bandopadhyay & Ors. Civil Appeal No. 6454/2011 wherein it was held as under:
“The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of public authorities prioritising 'information furnishing' at the cost of their normal and regular duties."
The Commission further noted that the Respondent no. 01 vide its letter dated 30.06.2016, in compliance with the order of the FAA dated 21.06.2016 had intimated the Complainant that since the jurisdiction on the relevant records fell under the jurisdiction of CESTAT, Chandigarh therefore the Respondent no.02 could only provide the relevant information. Accordingly, information was provided to the Complainant by Respondent no. 02 on 29.08.2016 and 06.02.2017. Part information was also provided by the Respondent no. 01 vide its letter dated 15.03.2016. Moreover, the Commission felt satisfied by the reliance placed by the Respondent to the decision of the Hon’ble Supreme Court of India in CBSE & Anr. Vs. Aditya Bandopadhyay & Ors., SLP(C) NO. 7526/2009 wherein it was held as under:
“…..The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritizing information furnishing, at the cost of their normal and regular duties.”
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.”
Furthermore, the Commission took note of the ruling of Hon’ble HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 10806 of 2011. [O&M] Date of Decision: 02nd December, 2011 (Gurcharan Singh vs. State Information Commission, Punjab & Ors.) wherein it was held as under:
“Having heard learned counsel for the parties, I find that the State Information Commission has no where held that the petitioner withheld any information deliberately or wilfully. Non-furnishing of satisfactory explanation would not ipso-facto mean that the petitioner withheld the information with a motive or mala-fidely. That being so, the harsh penalty imposed vide the impugned order dated 10.05.2011 [Annexure P-8] is uncalled for and the same is set aside but with a stern warning to the petitioner to be careful in future and ensure that as and when an application is received under the Act, he shall be obligated to act upon promptly and in any case within the stipulated period.”
Similarly, THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH in Civil Writ Petition No.6504 of 2009 Date of decision: 04.03.2010 (State of Punjab and others vs. State Information Commissioner, Punjab and another); had held as under:
3. The penalty provisions under Section 20 is only to sensitize the public authorities that they should act with all due alacrity and not hold up information which a person seeks to obtain. It is not every delay that should be visited with penalty. If there is a delay and it is explained, the question will only revolve on whether the explanation is acceptable or not. If there had been a delay of a year and if there was a Superintendent, who was prodding the Public Information Officer to act, that itself should be seen a circumstance where the government authorities seemed reasonably aware of the compulsions of time and the imperatives of providing information without any delay. The 2 nd respondent has got what he has wanted and if there was a delay, the delay was for reasons explained above which I accept as justified.
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 Complainant could not satisfy the Commission or 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 submission made by both the parties and in the light of afore-mentioned decisions of the Hon’ble Courts, no further intervention of the Commission is warranted in this matter.
The Respondents are however, cautioned to exercise due care in future to ensure that correct and complete information is furnished timely to the RTI applicant(s) as per provisions of the Act failing which penal proceedings under Section 20 shall be initiated. The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities. The Show-cause proceedings in the matter stands dropped.
The Complaint stands disposed accordingly.
Citation: Mr. R K Jain v. Customs Excise and Service Tax Appellate Tribunal in Complaint No.:-CIC/SB/C/2015/000112-BJ-Final, Date of Decision: 19.06.2017, 18.08.2017