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CIC: PIO is not required to give his own judgments on the issue; PIO has deliberately not taken any assistance u/s 5(4) from the FAA with malafide intention of not providing the relevant information - CIC: Penalty of Rs. 1000/- u/s 20(1) of the RTI Act

1 Jan, 2022

O R D E R

CIC/DOEAF/C/2020/665550,

CIC/DOEAF/C/2020/665552 &

CIC/DOEAF/C/2020/665553

1. The complainant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), M/o. Finance, Department of Economic Affairs, North Block, New Delhi. The complainant seeking information pertaining to pending First Appeals registered in July 2019, August, 2019 and September, 2019 is as under:-

1. “Total number and List of First appeals which were registered in the month of July 2019, August, 2019 and September, 2019 but are still pending for disposal as on current date of this RTI.

2. Total number and List of First appeals from SNo 1 which are still pending for disposal as on date of disposal of this RTI.

3. Name and designation of the erring official for each at SNo 1 and SNo 2 along with grounds available in records u/s 19(6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing. for such delay.

4. Name and designation of the controlling authority of official mentioned at SNo 3 along with details of action taken by him/her in order to properly implement RTI Act.”

2. No reply of CPIO is placed on records. Being aggrieved with the same, the complainant filed a complaint u/Section 18 of the RTI Act before the Commission requesting to take appropriate legal action against the CPIO u/Section 20 of the RTI Act.

Hearing:

3. The complainant attended the hearing through audio-call. The respondent, Ms Jessie Jacob, present CPIO/ Ass. Commissioner along with Shri Rajeev Ranjan, then CPIO attended the hearing through audio-call.

4. The respondent submitted their written submissions dated 27.10.2021 and the same has been taken on record.

5. The complainant submitted that complete and correct information has not been provided to him by the respondent on his all above RTI applications. That the respondent in response to his RTI applications has given cyclostyle response and not applied his mind in giving reply/information. That he has sought specific information in each of his RTI applications but vague reply have been given by the then CPIO on all his RTI applications. That there is a delay in giving reply/information on the part of the then CPIO on all his RTI applications which amounts to deemed refusal. That the then CPIO tried to hide the facts indicating the inability of their superior authority, hence point-wise reply has not been provided to the complainant. That the then CPIO has also not sought assistance under Section 5(4)/ Section 5 (5) of the RTI Act in order to obtain information from the concerned department/ section of the public authority. Regarding conduct of FAA, he further stated that the FAA neither disposed of his appeals nor directed the CPIO to provide relevant information, hence the CPIO as well as FAA in connivance with each other had malafide intention to obstruct the relevant information under the RTI Act.

6. Shri Rajeev Ranjan, then CPIO appeared and admitted the delay caused in providing reply to all the above RTI Applications. He further submitted that the status of the said day was communicated, the day the reply was given, hence in his opinion this was the only reply which should have been given to the complainant.

Decision:

7. The Commission, after hearing the submissions of both the parties and after perusal of records, observes that complainant has sought information pertaining to pending First Appeals registered in July 2019, August, 2019 and September, 2019 including total number and List of First appeals which were registered in the above said months and other related queries. That the appellant contended that there is a deemed refusal of information sought in all the above RTI Applications and the reply has been provided with a considerable delay. The Commission observes that the complainant has sought categorical information in all the above RTI Applications and the CPIO cannot be the custodian of all the information, however the then CPIO did not take assistance from the concerned department/ division under Section 5(4)/ Section 5 (5) of the RTI Act which in this case is their superior authority. That the complainant contended that the respondent had willful and malafide intention as they did not want to expose the poor performance of their superior authority, hence a point-wise reply has not been provided.

8. That in order to avoid aspersion on the conduct of their immediate superior authority i.e. in this case FAA, the respondent have preferred to not reply to all the above RTI Application initially and later the above RTI Applications are disposed of with delay without referring to the information sought in all the above RTI Applications which shows their malafide intentions. That in file no. CIC/DOEAF/C/2020/665550, though the respondent has communicated the name of their FAA, however the total number and list of First appeals which were registered in the month of July 2019, August, 2019 and September, 2019 but are still pending for disposal as on current date of the RTI Application has yet not been provided by the respondent.

9. That the information sought is related to FAA i.e. his own higher administrative authority seeking to indicate pendency against their superior officer, therefore he did not want to disclose it in order to hide the conduct of their superior authority in file no. CIC/DOEAF/C/2020/665552 & CIC/DOEAF/C/2020/665553. It is also being observed that the first appeal in these RTI matters have been pending and FAA did not decide these appeals to direct or guide the CPIO to provide the information. In a way there is apparent synergy between the CPIO & FAA in not giving reply to all the above RTI Applications disclosing pendency of appeals for a very long period of time. That the then CPIO has communicated the status of the appeals on the day his reply to the complainant avoiding to give information sought as on the date of the RTI Application. That it is apparent from the record that in connivance with FAA, then CPIO seems to have waited for summarily disposal of all the pending appeals and then give a reply indicating disposal without referring to the RTI query in specific to the pending appeals as on the date of RTI Application.

10. The Commission is of the view that the CPIO is not required to give his own judgments on the issue but he should have sought the assistance of the concerned FAA/CPIO/Section u/s. 5(4) of the Act in order to give specific reply/information. The Commission takes a serious note of this fact. A reference was drawn to the decision of the Hon’ble Delhi High Court in the case of J.P Agrawal v. Union of India-2013(287) ELT25(Del.) wherein it was held as under:

7.“it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken”. The RTI Act makes the PIO the pivot for enforcing the implementation of the Act.”

11. Further, while examining the complaint under Section 18 of the RTI Act, the CIC has no jurisdiction to direct disclosure of any information. This legal position has been authoritatively settled by the Hon’ble Supreme Court of India in Chief Information Commissioner and Another v. State of Manipur and Anr.in Civil Appeal Nos. 10787-10788 of 2011 dated 12-12-2011. The relevant extract of the said decision is set down below:-

“30. It has been contended before us by the respondent that under Section 18 of the Act the Central Information Commission or the State Information Commission has no power to provide access to the information which has been requested for by any person but which has been denied to him. The only order which can be passed by the Central Information Commission or the State Information Commission, as the case may be, under Section 18 is an order of penalty provided under Section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide. 31. We uphold the said contention and do not find any error in the impugned judgment of the High court whereby it has been held that the Commissioner while entertaining a complaint under Section 18 of the said Act has no jurisdiction to pass an order providing for access to the information.”

12. In the light of the above observations, the Commission is of the view that the then CPIO has deliberately not taken any assistance under Section 5(4) of the RTI Act from the O/o. the First Appellate Authority in reply to queries related to pendency of appeals at FAA level with malafide intention of not providing the relevant information to avoid disclosure of long pendency at the level of his Superior officer and waited to give reply after summary disposal of pending appeals. The Commission is of the view that this is the case where there is an intentional denial and obstruction of information.

13. In the above circumstances, levy of penalty is warranted. Therefore, this Commission is constrained to impose a penalty of Rs. 1000/- (Rupees One Thousand Only) u/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. of the RTI Act, 2005 on the then CPIO, Shri Rajeev Ranjan who held charge of the RTI applications during the relevant period responsible for obstructing the information in responding to the RTI applicant. The amount of Rs. 1000/- (Rupees One Thousand Only) shall be deducted by the Public Authority from his salary by way of a demand draft drawn in favour of “PAO, CAT”, New Delhi and the demand draft should be forwarded to the Deputy Registrar (CR-II), email: dyregcr2_cic@gov.in Room No. 106, First Floor, Central Information Commission, Baba Gangnath Marg, Munirka, New Delhi-110067. This demand draft of Rs. 1000/- (Rupees One Thousand Only) should reach the Commission by 07.12.2021. The present CPIO should ensure service a copy of this order to the then CPIO.

14. With the above observations, the complaint is disposed of.

15. Copy of the decision be provided free of cost to the parties.

Neeraj Kumar Gupta

Information Commissioner

Citation: Mr. Varun Krishna v. M/o. Finance, Department of Economic Affairs in Complaint No. CIC/DOEAF/C/2020/665550, CIC/DOEAF/C/2020/665552 &CIC/DOEAF/C/2020/665553, Date of order: 01-11-2021

CIC: PIO is not required to give his own judgments on the issue; PIO has deliberately not taken any assistance u/s 5(4) from the FAA with malafide intention of not providing the relevant information - CIC: Penalty of Rs. 1000/- u/s 20(1) of the RTI Act

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