Information regarding an order directing payment of gratuity to the appellant was denied stating that file noting are internal communication & not accessible under RTI - CIC: File Noting are open & not fiduciary or personal in nature; show cause to PIO
27 Jul, 2015Information regarding ALC(C) order directing payment of gratuity to the appellant was denied stating that the file noting are internal communication & not accessible under the RTI Act - CIC: File Noting are open and not fiduciary or personal in nature; provide the information after redacting names of officers who wrote the notes; show cause notice issued to the PIO for deliberate denial
ORDER
Information sought:
The appellant sought information w.r.t. his representation dated 22.03.2013 regarding arrear, gratuity without any interest for delay payment.
Relevant facts emerging during hearing:
The appellant is not present while the respondents are present and heard through video conference.
The Appellant filed RTI Application dated 29.06.2013 seeking above information. CPIO vide reply dated 24.07.2013, denied the information stating that the matter is strictly confidential and cannot be shared as per the RTI Act. The FAA vide order dated 10.09.2013, directed the CPIO to provide point wise information to the appellant. In compliance of FAA’s order, CPIO vide letter dated 23.09.2013, provided information on point no. 1 & 2 and on point no. 3, informed the appellant that correspondence has been made with ALC(C) and w.r.t. point no. 4, denied the information on ground that the same does not come under the purview of the RTI Act. Being not satisfied with the response of the public authority, the appellant filed the present appeal before the Commission.
Respondents submitted that they have complied with the order of the ALC(C) dated 28.03.2011 and the amount of Rs. 89406/- has been paid to the appellant. On a query by the Commission as to why the payment of 10% p.a. simple interest for the period from 08.03.2013 till the actual date of payment is not paid to the appellant, the respondents submitted that the ALC(C) in his order found that the appellant is entitled for the interest but only directed to pay Rs. 89406/- only and the same has already been paid. On a further query by the Commission as to whether any clarification has been sought from ALC(C) office as there seems to be a typographical error, the respondents replied in affirmative and stated that the notings were not provided to the appellant as the same is not permissible under the RTI Act. On a further query by the Commission as to what action has been taken on the ALC(C) order dated 31.12.2012, wherein ALC(C) has advised the Area Manager, FCI, to make payment of gratuity to the appellant concerned with interest @ 10% w.e.f. 01.03.2002 till date of disbursement, the respondent again submitted that as per the order of the ALC(C) dated 28.03.2011, the amount of Rs.89406/- has been paid to the appellant. The respondents again and again repeated the same stand that the order of the ALC(C) dated 28.03.2011 has been complied with and not made any submission with respect to ALC(C) order dated 31.12.2012 with respect to which the appellant filed the RTI application.
Decision:
After hearing the respondents and on perusal of the records the Commission finds that the appellant had sought information with respect to ALC(C) order dated 31.12.2012 in which he had advised the Area Manager, FCI, West Dinajpur “to make the payment of gratuity to the applicant concerned with interest at 10% w.e.f. 01.03.2002 till date of disbursement immediately, failing which necessary legal action as deemed fit under law shall be initiated against you.” Initially the PIO denied the information on a flimsy ground that the matter is strictly confidential and cannot be shared as per RTI guideline without invoking any exemption provided under the RTI Act. And again in compliance of FAA’s order with respect to point No. 3 (in which the appellant had sought the details of correspondences made after receiving the ALC(C)’s order dated 31.12.2012 ) the PIO only informed the appellant that the correspondence had been made with ALC(C). PIO neither provided the details of the correspondences and relevant portion of the note sheet nor denied the same by invoking any exemption as provided under the RTI Act. At the time of the hearing they first time made a statement that the file notings are internal communication and not accessible under the RTI Act. Now the respondent’s main contention to denying information is that the file noting are internal communication and not accessible under the RTI Act. In Union of India Vs. R. S. Khan. W.P.(C) 9355/2009 & CM No. 7144/2009, Justice S. Murlidhar of Delhi High Court had observed that: -
10.... This Court concurs with the view expressed by the CIC that in the context of a government servant performing official functions and making notes on a file about the performance or conduct of another officer, such noting cannot be said to be given to the government pursuant to a `fiduciary relationship with ‟ the government within the meaning of Section 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the 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 available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; of the RTI Act, 2005. Section 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the 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 available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; is, at best, a ground to deny information to a third party on the ground that the information sought concerns a government servant, which information is available with the government pursuant to a fiduciary relationship, that such person, has with the government, as an employee.............................................................................................................................................. ....................... 17. As regards Section 8(1)(j), there is no question that notings made in the files by government servants in discharge of their official functions is definitely a public activity and concerns the larger public interest....
It is clear from the decisions of the Hon’ble Delhi High Court as stated above, File Noting are open and not fiduciary or personal in nature. The respondent contention is not correct i.e. the file noting are internal communication and not accessible under the RTI Act.
In view of above, the Commission does not accept the grounds taken by the respondents for denial of information. The Commission directs the respondents to provide the complete details regarding action taken by them after receiving ALC(C) letter dated 31.12.2012 bearing no. 48/(75)/2010-ALC-I/E 2 and action taken by them on appellant’s letter dated 22.03.2013 along with the notings to the appellant, to the extent not already provided in relation to his RTI application within a period of two weeks of receipt of this order, after redacting names of officers who wrote the notes or made entries in the concerned files, under intimation to the Commission.
The respondent initially out rightly denied information on a flimsy plea and during the course of hearing remained adamant in reiterating his stand even when questioned on the logic behind his decision by the Commission and indicating the sections of the Act used by him for denial of information. Show cause notice is issued to the CPIO/A.M., FCI, West Dinajpur as to why penalty should not be imposed on him u/s 20 RTI Act, 2005 for outright deliberate denial of information on whimsical ground to the appellant. PIO is afforded an opportunity of personal hearing through Video Conferencing on 10.06.2015 at 4 PM on which date he must present himself before the Commission. Written submission, if any, should reach the Commission by 03.06.2015 positively. If there are other persons responsible for not providing the information to the appellant, the PIO is directed to inform such persons in writing about the show cause notice and direct them to submit their written submissions, if any, and to attend the Commission’s hearing on the above mentioned date. In case the PIO fails to comply with the Commission’s directions, it will be construed that he is the only person responsible for not providing information to the appellant as sought in his RTI application. The appeal is disposed of accordingly.
(Yashovardhan Azad)
Information Commissioner
Citation: Shri R.G. Mohanta v. Food Corporation of India in F. No.CIC/YA/A/2014/000276