CIC: Respondent did not list out the files destroyed by rain water flood in 2009-10 & flood is quoted as an excuse for denial of the information - CIC: Specify the alternate arrangements made to address the problem; Penalty of Rs. 25,000/ imposed on PIO

1. The appellant is present. The Public Authority is represented by Mr. Puneet Kumar, SDM (Dwarka) and Satish Kumar Rawat, Tehsildar.

2. The Commission vide even order dated 27.11.2014 held as under :

“3. Both the parties made their submissions. The appellant raised a very important question of great public importance. The so called floods is a potential ‘stone wall’ with which the office of SDM can ‘stonewall’ every RTI question and render the RTI Act, a useless enactment as far as their office concerned. The Commission is not happy with the response of the Public Authority that the relevant records were destroyed by floods, because their office is not near to any river for this kind of natural calamity and inundation by drain water, is not expected. It reflects pathetic state of affairs prevailing in the respondent office, as they are not able to say when the flood occurred and the details of the records destroyed. The Commission, therefore, directs the respondent authority to perform its legitimate duty of finding out what records were destroyed in the flood, if there is any flood, inform when it occurred, why a list of the same and examine whether it is possible to reconstruct those files by collecting the information from different sources. If this process requires an inquiry, the Commission directs the Public Authority to set up such Inquiry Committee immediately. The respondent authority submitted that the inquiry would take 2 – 3 months. The Commission also directs the respondent authority to inform the appellant first, within 15 days when they are initiating the inquiry and after concluding the enquiry within 3 months, furnish the resultant list of records destroyed during the flood and upload the same in the Public Domain as well as display in the office premises, along with a copy to the appellant. The respondent authority shall also intimate the appellant the remedial measures they are taking for reconstructing the destroyed files within one month from the date of completion of the inquiry.

4. The Commission disbelieves the claim of ‘floods’ by the PIO and he is directed to show cause why maximum penalty cannot be imposed against him for making casual, unfounded claim of ‘floods’ without any reasonable data, which amounts to denial of records.”

3. The appellant has filed RTI application dated 14.2.2013 seeking 7 point information viz. whether flood inundated the respondent’s office premises in the year 2009 & 2010, if so date and location; documents destroyed during the flood inundating; whether office record of certificate branch of your office destroyed etc. CPIO replied in affirmation and stated that due to flood no record is available with them. Appellant made first appeal and on not receiving any response of FAA the appellant approach the Commission.

4. The case was taken up for hearing on 5.11.2014 and Commission orders as under:

3. ...The appellant raised a very important question of great public importance. The so called floods is a potential ‘stone wall’ with which the office of SDM can ‘stonewall’ every RTI question and render the RTI Act, a useless enactment as far as their office concerned. The Commission is not happy with the response of the Public Authority that the relevant records were destroyed by floods, because their office is not near to any river for this kind of natural calamity and inundation by drain water, is not expected. It reflects pathetic state of affairs prevailing in the respondent office, as they are not able to say when the flood occurred and the details of the records destroyed. The Commission, therefore, directs the respondent authority to perform its legitimate duty of finding out what records were destroyed in the flood, if there is any flood, inform when it occurred, why a list of the same and examine whether it is possible to reconstruct those files by collecting the information from different sources. If this process requires an inquiry, the Commission directs the Public Authority to set up such Inquiry Committee immediately. The respondent authority submitted that the inquiry would take 2 – 3 months. The Commission also directs the respondent authority to inform the appellant first, within 15 days when they are initiating the inquiry and after concluding the enquiry within 3 months, furnish the resultant list of records destroyed during the flood and upload the same in the Public Domain as well as display in the office premises, along with a copy to the appellant. The respondent authority shall also intimate the appellant the remedial measures they are taking for reconstructing the destroyed files within one month from the date of completion of the inquiry.

4. The Commission disbelieves the claim of ‘floods’ by the PIO and he is directed to show cause why maximum penalty cannot be imposed against him for making casual, unfounded claim of ‘floods’ without any reasonable data, which amounts to denial of records.

5. In response to the Show Cause notice issued by the Commission, Mr Jai Bhagwan vide letter dt 12.3.2015 stated as under:

“At the outset, undersigned make a humble submission that the appellant (Mr. Harish Kumar) has misquoted before the Hon’ble Commission that flood caused by river has damaged the record of certificate branch in BDO Office Complex, Najafgarh on the contrary, it was informed to appellant that the BDO Office complex was flooded with rain water”. In this context, I am enclosing herewith the photocopy of the office correspondences along with noting sheet which evidently establishes that the premises of the office of SDM (NG) housing various branches was inundated in flood water and during the process a large number of documents of various branches including that of certificate branch and computer hardware were destroyed/damaged.”

Submission by Appellant:

6. Appellant made the following submission before the Commission:

“2. I have not received letter dated 18.03.2015 from PIO cum SDM Dwarka, the contents of which were mentioned by the Hon’ble Deputy Registrar, Central Information Commission (CIC), in their kind notice letter dated 26.03.2015. Further, I have so far not received any intimation about initiating of the enquiry by the PIO cum SDM Dwarka, GNCTD, or any enquiry report thereof, even after passing of more than 3½ months period, which was though directed by the Hon’ble Information Commissioner, CIC, to inform appellant within 15 days, as per Para 3 (under heading Decision) in kind order No. CIC/SA/A/2014/000268 dated 27.11.2014 (copy of the said order is annexed hereto as Annexure1). It clearly shows that PIO cum SDM Dwarka has not complied with the Hon’ble Information Commissioner’s kind orders. I therefore request to the Hon’ble Information Commissioner, CIC to kindly impose maximum penalty u/s 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 for not complying with the order of the Commission.

3. I would also like to bring the fact before the Hon’ble Information Commissioner, CIC, that PIO cum SDM Dwarka, GNCTD, has made self contradictory statements in his own replies on record. In his reply letter dated 16.09.2013 (copy annexed hereto as Annexure2), he states in Para – 7 that “The authenticity of certificate is being verified with the computer data and available registers” whereas in his another reply letter dated 18.03.2015 Hon’ble Information Commissioner, CIC the contents of which were mentioned by the Hon’ble Deputy Registrar, CIC in Para 3 of their kind order dated 26.03.2015 (copy annexed hereto as Annexure3) that “Computer hardware were destroyed/damaged” which clearly reflect that PIO cum SDM Dwarka has made self contradictory statement. However, on his earlier reply letter dated 16.09.2013, I had already given my comments in Para7 (table point No. l 7) of my second appeal letter dated 13.12.2013 before Hon’ble Chief Information Commissioner, CIC that “The PIO reply is incorrect as the authenticity of any caste certificate can only be verified after checking the verification report of the concerned SDM office about the correctness of the annexures which the person concerned had submitted along with their Application Form at the time of applying caste certificate. Hence PIO had not clarified whether the verification reports are available or destroyed in said reported flood ? If these were destroyed in said reported flood, then how the authenticity of such caste certificates is being verified, is to be clarified.”

4) The PIO cum SDM Dwarka has also failed to intimate the remedial measures they are taking for reconstructing the destroyed files within one month from the date of completion of the inquiry (if it was presumed that an enquiry was conducted) as representative on behalf of PIO has himself admitted on record during the last hearing on 05.11.2014 before the Hon’ble Information Commissioner, CIC, that the enquiry would take 23 months. It appears that PIO cum SDM Dwarka has not either initiated any enquiry so far or has not paid any heed to Hon’ble Information Commissioner, CIC, kind orders dated 27.11.2014 and just passed more than 3½ months period.

7. Having heard the submission and after perusal of records, the Commission observed that the explanation given by Mr. Jai Bhagwan SDM Dwarka is absolutely not satisfactory. According to the documents enclosed to his explanation the rain water flood destroyed the files in 200910. The RTI application was filed on 14.2.2011 and 16.9.2013 the respondent officer served the answer. The PIO simply takes excuse of rain water flood and did not give any information. In paragraph 7, the PIO answered that the authenticity of certificate is being verified with the computer data and available registers and thereafter there is no further correspondence. There is neither verification nor information. Meanwhile, FAA on 8.10.2013 ordered to provide information, but there was no response. Mr. Jai Bhagwan sent a letter dated 12.3.2015 through Mr. Satish Kr. Rawat, Tasildar Dwarka who is also a PIO.

8. So far the respondent authority did not list out the files destroyed by the rain water flood in 2009-10. In the absence of such list, the public authority is conveniently quoting rain flood as excuse for denial of the information. This case stands out an example of delay for more than 04 years. Mr Jai Bhagwan’s explanation does not talk about the delay. The Commission finds this a fit case for imposing maximum penalty of Rs. 25,000/against Mr. Jai Bhagwan, SDM Dwarka. The Commission also recommends the public authority to initiate disciplinary inquiry against Mr. Jai Bhagwan. The Commission directs respondent authority to provide the information sought by the appellant within one week, also directs the respondent authority to declare specifying the records and the periods which were supposedly destroyed in so called rain water flood and what are the alternate arrangements made by the department to address the problems arising out of such ‘floods’ like that of complainant here.

9. Thus the Commission finds it a fit case to impose penalty of Rs. 25,000/ on Mr. Jai Bhagwan, SDM Dwarka. Accordingly, Mr. Jai Bhagwan, SDM Dwarka is directed to pay a sum of Rs. 25,000/- in 5 equal monthly installments.

10. The Appellate Authority is directed to recover the amount of Rs. 25,000/ from the salary payable to Mr. Jai Bhagwan, SDM Dwarka by way of Demand Draft drawn in favour of ‘PAO CAT’ in 5 equal monthly installments. The first installment should reach the Commission by 15.06.2015 and the last installment should reach by 15.10.2015. The Demand Draft should be sent to Shri S. P. Beck, Joint Secretary & Addl. Registrar, Room No. 302, Central Information Commission, B Wing, 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066.

(M. Sridhar Acharyulu)

Information Commissioner

Citation: Harish Kumar v. Sub Divisional Magistrate Dwaraka, GNCTD in File No.CIC/SA/A/2014/000268