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CIC: The PIO to showcause why action should not be taken under the RTI Act for his misconduct & negligence - CIC instructed the MGM Medical College to convene periodic conferences to sensitize & educate the concerned officials about the RTI provisions

19 Feb, 2019

O R D E R

FACTS:

The Appellant vide his RTI application sought information regarding the number of vacancies filled by Mahatma Gandhi Memorial Medical College for the post of Occupational Therapist (Direct). Dissatisfied due to the non-receipt of any response from the CPIO, the Appellant approached the FAA. The order of the FAA/ reply of the CPIO, if any, is not on records of the Commission.

HEARING:

Facts emerging during the hearing:

The following were present:

Appellant: Absent;

Respondent: Dr. Shishir Urdawareshe, Nodal Officer RTI & Demonstrator Pathology Department through VC;

The Appellant remained absent during the hearing. The Respondent informed the Commission that on 27.05.2017, reply/information has already been provided to the

Appellant. On a query from the Commission regarding the delay in giving reply to the Appellant, no plausible explanation could be offered by the Respondent. Needless to say that the Respondent Public Authority had adopted a very casual and callous approach in handling the RTI applications.

The Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. The Commission expressed its displeasure on the casual and callous approach adopted by the respondent in responding to the RTI application. It was felt that the conduct of respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information. The Commission referred to the judgement of the Hon’ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been held as under:

“14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy.”

Furthermore, the Hon’ble Delhi High Court decision in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 it has held that:

“The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for nondisclosure.”

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.”

Furthermore, the Hon’ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:

“9………………………….. That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only. The Appellate Authority is not the custodian of the information or the document. It is only a statutory authority to take a decision on an appeal with regard the tenability or otherwise of the action of the CPIO and, therefore, there is a conscious omission in making the Appellate Authority liable for a penal action under Section 20 of the RTI Act and if that be the scheme of the Act and the legislative intention, we see no error in the order passed by the learned writ Court warranting reconsideration.”

Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, 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. ”

The Appellant was not present to contest the submissions of the Respondent or to substantiate his claims further.

DECISION:

Keeping in view the facts of the case and the submissions made by the Respondent, it is evident that there is a delay in giving reply/information to the Appellant, which is a grave violation of the provisions of the RTI Act, 2005. The Commission, therefore, instructs the CPIO to showcause why action should not be taken under the provisions of the Act for this misconduct and negligence. The Commission therefore, directs the respondent to:

1- explain why penalty of Rs. 25,000/- should not be imposed on the CPIO as per 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, within 15 days from the date of receipt of this order for the harassment caused to the Appellant by denial of such information due to its act of negligence. In case, no reply is received within the stipulated time period, it shall be presumed that the Respondent (CPIO) has nothing more to say and the Commission would take a decision on its merits.

The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.

The Appeal stands disposed with the above direction.

Bimal Julka

Information Commissioner

Citation: Mr. Arvind Kumar v. CPIO, Mahatma Gandhi Memorial Medical College in Second Appeal No.:- CIC/MH&FW/A/2017/111677-BJ, Date of Decision: 08.02.2019

CIC: The PIO to showcause why action should not be taken under the RTI Act for his misconduct & negligence - CIC instructed the MGM Medical College to convene periodic conferences to sensitize & educate the concerned officials about the RTI provisions

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