Bio-metric attendance record of appellant was not provided - CIC issued show cause notice to the PIO - CIC: In cases where an appellant specially asks for such a hearing before the FAA, such an opportunity should be granted; FAA cautioned

Information Sought:

The complainant (HRMS No. 200904711) has worked as JTO in BSNL. He has sought his bio-metric attendance record from 01/06/2017 to 10/08/2017.

Grounds for filing Complaint:

The CPIO did not provide the desired information.

Submissions made by Complainant and Respondent during Hearing:

The complainant submitted that the CPIO had provided the bio-metric attendance record via e-mail on 08.04.2019 for a few selected days only instead of the whole period for which it was requested. The few selected days are 14.06.2017, 30.06.2017, 05.07.2017, 14.07.2017, 17.07.2017 to 21.07.2017 and from 24.07.2017 to 28.07.2017. He further submitted that on finding that the information provided is incomplete he requested the CPIO through e-mail on 10.04.2019 for complete information to which the CPIO had not provided any reply. He also challenged the oral reason provided by the CPIO that on being relieved from one particular branch of an organisation, the biometric attendance of the concerned employee is deleted. Further he had drawn attention of the Commission to the reply of the CPIO where no written justification was given for providing incomplete information. He also contested the First Appellate Authority’s order.

He further submitted that this unfair procedure, which is in non-conformity with the constitutional principles of public trust, reasonableness and fairness shows the anti-RTI attitude of the public authority. What is more appalling is that such an unconstitutional attitude and demeanour was demonstrated by public authorities who swear to the cause of fairness and reasonableness during the vigilance weeks and every other national days. Furthermore, he submitted that the PIO has failed to perform his statutory duty under the statute but also his senior officer i.e the FAA is patronising him. The response of both the PIO and the FAA militate against the principles of transparency and accountability. He also submitted that the FAA, under this Act, is a quasi judicial authority. Passing orders in first appeal without hearing or sending hearing notice is illegal and renders the order invalid. It is in violation of the RTI Act as well breach of natural justice to deny the complainant an opportunity of presenting his case.

If the FAA abdicates his or her duty to decide the appeals, the purpose of the scheme of things given in the Right to information Act would be defeated. Its very existence under the statute is belied. The FAA is a quasi judicial authority, who must decide appeals by passing speaking orders. If an FAA fails to perform his or her duties prescribed under the RTI Act, he or she becomes open to disciplinary action on the recommendation of the Commission.

He further stated that the Commission vide their many decisions have held that the institution of the First Appellate Authority is not merely a decoration piece, who is there to uphold each and every act of the PIO. There is a logic and purpose behind its creation by the legislature. An FAA, who is senior in rank to PIO is expected to be well conversant with the functioning of the public authority. A PIO may err in locating the information sought by an applicant or may wrongly deny to disclose a particular piece of information. The FAA is expected to guide the PIO in such matters by directing him to disclose the sought for information as per the provisions of the RTI Act 2005.

The Complainant strongly contested the CPIO’s submission and stated that the information of his attendance was malafidely deleted to cause him damage. On a query to the CPIO, the CPIO submitted that the bio-metric records were retrieved from the mail and given to the applicant. However, regarding the rationality of retrieval of selected days’ attendance and not consecutive days he could not explain the same properly.

Observations:

From a perusal of the relevant case records and considering the submissions, both oral and written of the parties, it is noted that the reply of the CPIO was incomplete, the CPIO’s representative failed to justify regarding the rationality of retrieval of selected days’ attendance and not consecutive days. The CPIO’s representative present during the hearing was not able to give any explanation whether any weeding out policy for the same exists or not or where this 6 month period has been laid down. The Commission does not find the justification given by the CPIO as satisfactory and is of the opinion that a reasonable explanation is required for not giving complete bio-metric records of the complainant. In case the same was deleted as per rule the same should be substantiated by the CPIO with a copy of proper weeding out policy.

The other important issue that was raised by the complainant is whether the First Appellate Authority’s order of dismissing the First Appeal without affording an opportunity to him to present his case of dissatisfaction on the reply of the CPIO is legal and justified. Here, it is needless to say that rendering an opportunity of hearing to the parties is a fundamental principle of jurisprudence. It is conducive to fairness and transparency and is in accordance with the principles of natural justice. An opportunity of hearing to the parties also brings greater clarity to the adjudicating authorities. This Commission always gives an opportunity of hearing to the parties but this does not appear to be usually done by the FAAs, as probably there are practical difficulties therein, partly arising out of the number of appeals involved and partly due to the limited time frame in which the matters are required to be decided. However, in cases where an appellant specially asks for such a hearing before the FAA, such an opportunity should be granted. The essence of the RTI Act is to provide complete, correct and timely information to the appellant. In this particular case, the FAA has not only failed to address the inadequacies in the reply of the CPIO but has also failed to provide a fair chance to the complainant for representing his case before the Appellate Authority. The principles of natural justice signify the basic minimum fair procedure which must be followed while exercising decision making powers as natural justice forms the very backbone of a civilized society.

The wheels regarding the application of principles of natural justice to administrative and quasi-judicial proceedings started turning from 1963 when the House of Lords in the United Kingdom delivered the landmark and often quoted judgment of Ridge v. Baldwin [1963] UKHL 2. An order for dismissal of a Constable was quashed because he was not provided any opportunity to defend his actions. Presently, in our country, the principles of natural justice are applicable in totality to administrative and quasi-judicial proceedings. This is consistent and in line with the rapidly increasing role, functions and jurisdiction of such bodies in a welfare state like ours.

The below-mentioned passage of the Hon'ble Supreme Court in the case of Uma Nath Pandey v. State of U.P. AIR 2009 SC 2375 exhaustively explains the term natural justice which is reproduced below for ready reference:

"6. Natural justice is another name for common sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted Writ Petition No.6427/2017 considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009 issued by the DoPT while elaborating on the duties and responsibilities of the FAA, it was stated that:

"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.

5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. "

With regard to the prayer regarding compensation, the Commission is of the opinion that the complainant has raised the issue of compensation in a complaint case which cannot be admitted as compensation is payable in case of appeal only and not the complaint and this point has already been taken account of in File No. CIC/BSNLS/A/2019/641200. This position is clear from the decision of the Hon’ble Delhi High Court dated 09.04.2013 in LPA 195/2011 titled as Union of India v. P. K. Srivastava, wherein, it was observed as under:-

“5. It is quite evident from a perusal of the above referred provisions contained in Section 19 of the Act that compensation to the complainant for any loss or other detriment suffered by him can be awarded by the Commission only while deciding an appeal filed before it.”

Interim Decision:

In view of the fact that incomplete information was provided to the complainant and no satisfactory explanation was provided relating to non availability of the complete information, the Commission directs both the then CPIO and the present CPIO to appear before the bench on 29.05.2020 at 12.30 p.m. to show cause as to why action should not be initiated against them 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. and (2) of the RTI Act. Both the CPIOs are also directed to send a copy of all supporting documents which they choose to rely upon during the hearing. The said documents be sent to the Commission at least two days prior to the hearing via link paper. If any other persons are responsible for the said omission, the CPIOs shall serve a copy of this order on such persons to direct their presence before the bench as well. The Commission also notes that the manner of dismissal of the first appeal by the FAA without granting an opportunity for personal hearing after the complainant has specifically asked for a hearing goes against the principles of natural justice. The FAA in this case without hearing the complainant concluded that the case needs to be dismissed which reflects unreasonable handling of the first appeal, driving the complainant to file this complaint. The Commission, therefore, cautions the FAA to strictly follow the RTI regime while disposing of appeals and pass a speaking order, after taking due cognizance of the merits of each case. A copy of this order is marked to the concerned FAA for his information. The present CPIO is directed to serve a copy of this order on the FAA immediately upon the receipt of the order.

The case is accordingly adjourned.

Vanaja N. Sarna

Information Commissioner

Citation: Love Gogia v. (BSNL) in Decision no.: CIC/BSNLD/C/2019/641097/Interim, Decision no.: CIC/BSNLD/C/2019/641097/Interim