CIC does not have any power to review its earlier order - CIC: the Principal Secretary (H&FW) to inquire into the allegation of disclosure of identity of whistleblower - CIC: Rs 10,000 will be a proper amount as token compensation to the complainant

Date of hearing : 04.11.2015

Date of decision : 01.02.2016

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Parties Present:

1. Appellant is present. Dr. Vijay Khari, PIO and Mr. Tyagi, APIO represents Public authority.

FACTS:

2. The Commission in its order dated 27.06.2015 held as under :

“8. The Commission having heard the submissions and perused the record finds that there is a delay of 381 days in furnishing the information to the appellant. The Commission, therefore, directs the PIO to show cause why penalty should not be imposed on him for not furnishing the information within the prescribed period and why compensation should not be awarded to the appellant for the hardship undergone by him in delaying the information. His explanation should reach the Commission within 21 days from the date of receipt of this order. The Commission further directs the PIO to furnish information as sought by the appellant in his written submission presented during hearing today, within 15 days from the date of receipt of this order.

9. The Commission requires the public authority to conduct an enquiry into the alleged opening of the envelope and disclosure of identity of whistleblower and decide appropriate action against concerned medical superintendent besides considering him to provide the compensation and cancelling the penal transfer within 45 days of receipt of this order.

10. The Commission orders accordingly”.

Proceedings Before the Commission:

3. Both the parties made their submissions. The CPIO submited that the proposal to conduct inquiry into the allegation of unwarranted opening of envelope and disclosure of identity of whistle blower was sent to the competent authority, Principal Secretary (Health & Family Welfare) on 07.08.2015. He stated that Principal Secretary (Health) advised to file review petition before the CIC and he filed it accordingly on 26.9.2015.

4. According to the Delhi High Court order dated 18.11.2011 in the case of Suhas Chakma vs. Union of India and another [WP(c) No. 5086/2010], the Commission does not have any power to review earlier order and hence the review petition is dismissed.

5. As the competent authority is the Principal Secretary (H&FW), this CPIO has no power to conduct inquiry, or to cancel the transfer. The Commission requires under Section 19(8) the Principal Secretary (H&FW) to inquire into the allegation of disclosure of identity of whistleblower as directed by Commission and proposed by PIO on 07.08.2015. The information about action taken on initiating inquiry shall be furnished within 25 days.

6. Appellant pointed out that public authority gave information after delay of 381 days only after intervention of CIC. The Commission finds that CPIO did not even choose to write any response till now. From the submission and perusal of records, it was reported that Mr. Kulvinder Yadav was concerned CPIO caused this delay, to whom the show cause notice was already served on 27.06.2015 but there is no written response from him. Mr Yadav was also not present in hearing to explain. The PIO Mr Vijay Khari explained orally today that they could not provide information before 381 days because of heavy work load, pendency of certain inquires and submission of concerned file to the inquiry committee at different levels, etc. Though this is enough for imposing penalty upon Mr Kulvinder Yadav, the Commission gives yet another opportunity to Mr. Kulvinder Yadav to submit his explanation within 21 days from the date of receipt of this order. If he still chooses not to reply, it will be inevitable for the Commission to conduct penalty proceedings in his absence.

7. The Commission finds that public authority has neither mechanism nor any intention to protect the identity of the complaint and the CPIO simply professed lack of knowledge in this regard. The Commission directs the respondent authority to provide foolproof arrangement to protect the identity of whistle blower and take necessary action against the concerned officers and staff members for disclosing the identity of the whistle blower. The Commission recommends the public authority to initiate necessary disciplinary action against the Dr. Ashok Jaiswal as proposed by the PIO.

8. The Public authority could not give any reason why compensation should not be given to the appellant. Though the complainant suffered more loss due to harassment because of delay in providing information and disclosure of his name, resulting in penal transfer and several other problems, the Commission found Rs 10,000 will be a proper amount as token compensation and directs the Principal Secretary (H&FW) to arrange payment of compensation of Rs. 10,000/ to the applicant within one month.

(M. Sridhar Acharyulu)

Information Commissioner

Citation: Dr. Avinash Kumar v. Aruna Asaf Ali Hospital in Case No. CIC/SA/A/2015/000371