Information regarding the status of implementation of order passed by DC was denied stating that the file was missing - CIC: inquire into the matter, fix the responsibility for missing file; disciplinary action to be taken against the guilty
1. The appellant who is 80 years old is represented by his wife Mrs. Raj Bans Kaur (75) and his son Mr. Aviraj Singh. The Public Authority is represented by Mr. Jitender Kumar, UDC from the office of Dy.Commissioner (North West) Kanjhawala, Delhi.
2. Mrs. Raj Bans Kaur, wife of the appellant submitted that they are seeking the information through their RTI application dt. 3062012 regarding the status of implementation of order dt. 3112012 in appeal No.01/MT/DC(NW)/2010 passed by the Dy. Commissioner (NorthWest). The wife of the appellant further submitted that her husband, who is the appellant, owns a DDA flat no. 107SFS, Ashok Vihar PhaseIV, New Delhi. As their daughterinlaw is harassing them and making their life miserable to live peacefully in their own flat, they approached the Dy. Commissioner under Senior Citizens Protection Act, 2007 to allow them to live in their house peacefully by directing their troubling daughterinlaw to move to another flat, which their son has already taken on rent to live with her.
3. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is a legislation enacted in 2007 to provide more effective provision for maintenance and welfare of parents and senior citizens. This Act make it a legal obligation for children and heirs to provide maintenance to senior citizens and parents, by monthly allowance. This Act also provides simple, speedy and inexpensive mechanism for the protection of life and property of the older persons. Tribunal constituted under this Act has to dispose of the petition for maintenance or protection within 90 days. Non maintenance of seniors will lead to fine, payment of maintenance amount and imprisonment also. Son or relative will have a statutory duty to transfer the property either movable or immovable, gifted to them by the seniors if they fail to maintain them. Under Section 21(iii) of the Act imposes an obligation on State Government totake measures to ensure that effective co-ordination between the services provided by the concerned Ministries or Departments dealing with law, home affairs, health and welfare, to address the issues relating to the welfare of the senior citizens and periodical review of the same is conducted. Neither the appellant nor the respondent in this second appeal were in a position to say whether proper proceedings were initiated by the respondent public authority to help the appellant. However it was stated that the Dy. Commissioner had ordered on 3112 2012 that a committee may be constituted by including the concerned SDM, SHO of the area and the representatives of the of the MCD and Senior Citizens Welfare Society to explore the possibility of providing a residence to the appellant. After the issue of the said order, till date nothing has been done to solve their proble and they are undergoing hardship and harassment in their own house. The appellant is, therefore, seeking information about the status of the said order as to whether it is implemented or not. They received only a phone call from the SDM, Model Town, advising them to construct a partition wall within their flat to create a separate room for them, so that their daughterinlaw can also live in the same flat. But the appellant’s wife submitted that this kind of arrangement is not acceptable to them as the said flat was purchased from Delhi Development Authority (DDA) with only one entrance to the flat and the rules of DDA do not permit to change the structure of DDA flats as allotted by them. Even otherwise it is not possible to divide the flat into two independent pieces because of its design. The appellant‘s wife further submitted that in spite of several rounds of visits they made to the respondent office, they are not able to get the required information (action taken on the orders of Deputy Commissioner regarding facilitating right of residence in their own house). The son of the appellant, Mr. Aviraj Singh who is also present during the hearing, submitted that he has taken a rented house in Bharat Nagar as per the choice of his wife (i.e. daughterinlaw of the appellant), but she did not move along with him to the new house. Instead, she has entangled him along with his old parents in a number of litigations in several courts, which are pending now. The respondent Mr. Jitender Kumar, on the other hand, submitted a letter dated 1132014 to the Commission during the hearing, claiming that the relevant file relating to the DC’s order dt. 3112012, is not traceable.
4. The Commission heard the submissions made by both the parties. The respondent authority has chosen to send an assistant who came with a single sheet of the letter saying the file referred in the CIC hearing notice was missing from his office and claimed he does not know anything and proclaimed no authority to do anything. However, he vehemently contended that he could not do anything as the file was missing and his department had no duty to deal with the RTI application. When the Commission asked: when they found that the file is missing, whether any FIR is lodged, any responsibility is fixed for the same and what action the respondent authority proposed to reconstruct in the information possibly available in different sources, his response was silence. Thus the claim of the respondent that ‘the relevant file is missing’ is not acceptable defense on the part of the respondent without answering the questions asked by the Commission.
5. Delhi High Court in Union of India vs Vishwas Bhamburkar on 13.9.2013, (W.P.(C) 3660/2012 & CM 7664/2012) in paras 7 and 8 held that: “7……It is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever an information is sought and it is not readily available, a thorough attempt needs to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired information. Even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/ officials responsible for loss of the record. Unless such a course of action is adopted, it would be possible for any department/ office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/ office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act. Since the Commission has the power to direct disclosure of information provided, it is not exempted from such disclosure, it would also have the jurisdiction to direct an inquiry into the matter wherever it is claimed by the PIO/CPIO that the information sought by the applicant is not traceable/ readily traceable/ currently traceable. Even in a case where the PIO/CPIO takes a plea that the information sought by the applicant was never available with the government but, the Commission on the basis of the material available to it forms a prima facie opinion that the said information was in fact available with the government, it would be justified in directing an inquiry by a responsible officer of the department/ office concerned, to again look into the matter rather deeply and verify whether such an information was actually available in the records of the government at some point of time or not. After all, it is quite possible that the required information my be located if a thorough search is made in which event, it could be possible to supply it to the applicant. Fear of disciplinary action, against the person responsible for loss of the information, will also work as deterrence against the wilful suppression of the information, by vested interests. It would also be open to the Commission, to make an inquiry itself instead of directing an inquiry by the department/ office concerned. Whether in a particular case, an inquiry ought to be made by the Commission or by the officer of the department/ office concerned is a matter to be decided by the Commission in the facts and circumstances of each such case.”
6. The Commission finds it highly irresponsible on the part of the PIO of the respondent authority to dodge the implementation of the order of the Deputy Commissioner given in 2012 and when the octogenarian couple was shelterless even after owning a DDA flat with order of the DC in hand without any response to their RTI application seeking information as action taken on DC’s order. The PIO also not responsible in making a reckless claim of ‘file is missing’ and sending a junior officer who does not know what he had to do under RTI Act in a second appeal. It is a serious lapse on the part of the Respondent authority.
7. Thus invoking its powers under Section 19(8) of RTI Act, the Commission directs Deputy Commissioner to conduct an inquiry into this so called incident of ‘missing file’ within one month and fix the responsibility so that disciplinary action is taken against him as that amounts to obstruction of furnishing the information and recommend initiating disciplinary action against those found guilty of missing the file.
8. The Commission also directs the concerned PIO, Mr. Anoop Thakur and his assistant Mr. Jitender Kumar to explain why penalty cannot be imposed on them for nonimplementation of the order of FAA and nonfurnishing of information to the appellant in response to their RTI application and obstructing the process of furnishing the information by claiming that the relevant file is missing after receiving the hearing notice from the CIC. Their explanation should reach the Commission within 3 weeks from the date of receipt of this order.
9. The appellant and his wife, who are senior citizens (76 to 80 plus years), have right to life and thus under the protection of Article 21 of the Constitution and Senior Citizens Act, 2007 and the said information sought by them pertains to their life and liberty and the respondent authority is under obligation to provide the same within 48 hours as per proviso under section 7(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: RTI Act.
10. The Commission also recommends to the respondent authority, to address the grievance of the appellant as his wife who submitted that the said information would help them in their defense in the several litigation cases launched by their daughterinlaw in various courts.
11. The Commission also advises the appellant to provide all the relevant papers available with them to the Dy. Commissioner(NorthWest), Khanjawala by visiting their office on 1332014 at 11 am, as indicated by the respondent Mr. Jitinder Kumar, during hearing today and get the desired information from the respondent.
12. The case is disposed of accordingly with above directions keeping it open to the appellant to report back if the information is not made available as per the directions.
Citation: Sh. Kuljeet Singh Vs. SDM, Delhi IN File No.CIC/AD/A/2012/003924SA