CIC was appalled to learn that an organization like FSSAI meant to research, preserve & notify standards for food safety for normal consumption by the mankind was itself pleading helpless in securing, maintaining, documenting & digitizing its own records

O R D E R

RTI – I File No. CIC/FRASL/A/2018/110143-BJ

FACTS:

The Appellant vide his RTI application sought information on 07 points in respect of FRSL Ghaziabad for the period 2011-17, details of total numbers of food samples analyzed by FRSL, Ghaziabad and CFL, Kolkata during the year 2012-13 to 2016-17 year-wise; details of quantity of chemical consumption by FRSL, Ghaziabad and CFL, Kolkata for the period 2012-14 and issues related thereto.

The CPIO, Ghaziabad, vide its letter dated 18.04.2017 with regard to Serial number (I), (II), (III), 3 (V) and (VI) forwarded the RTI application to the CPIO, Central Food Laboratory, Kolkata, with the direction to provide information directly to the Appellant. Subsequently, the CPIO, Ghaziabad, vide its letter dated 27.04.2017 stated that the information sought by the Appellant was voluminous in nature and that the laboratory was reeling under acute shortage of Man Power due to the repatriation of 20 employees to Dte. General of Health Services, M/o Health and Family Welfare, New Delhi. Furthermore, approval for manpower had been sought from FSSAI, New Delhi and it may take time to get the man power & to provide the reply of information sought in the RTI application. Furthermore, the CPIO, Ghaziabad, vide its letter dated 07.08.2017, provided a response to the Appellant at serial no. 3(1) and (2) of the application. Dissatisfied by the response, the Appellant approached the FAA. The Director and FAA, Food Research and Standardisation Laboratory, vide its letter dated 03.01.2018 while referring to three RTI applications dated 16.02.2017, 23.02.2017 and 10.03.2017, stated that inspection of documents was offered to the Appellant but he failed to appear before the Authority on 22.12.2017 and disposed off the Appeal.

RTI – II File No. CIC/FRASL/A/2018/125348-BJ

FACTS:

The Appellant vide his RTI application sought information on 07 points in respect of FRSL Ghaziabad for the period 2010-17, details of budget allotted for National Tobacco Testing Laboratory for the year 2011-2016 year-wise along with amount of expenditure incurred in different heads for the year 2011-16; details of storage facility and storage capacity of diesel and petrol at a time which could be stored by FRSL, Ghaziabad and issues related thereto.

The CPIO, Food Research & Standardisation Laboratory, vide its letter dated 27.04.2017 for Para 01, transferred the RTI application to the Deputy Secretary, M/o Health & Family Welfare, for necessary action at their end. Subsequently, the CPIO, Food Research & Standardisation Laboratory, vide its letter dated 27.04.2017 stated that the information sought by the Appellant was voluminous in nature and that the laboratory was reeling under acute shortage of Man Power due to the repatriation of 20 employees to Dte. General of Health Services, M/o Health and Family Welfare, New Delhi. Furthermore, approval for manpower had been sought from FSSAI, New Delhi and it may take time to get the man power & to provide the reply of information sought in the RTI application. Dissatisfied by the response, the Appellant approached the FAA. The Director and FAA, Food Research and Standardisation Laboratory, vide its letter dated 03.01.2018 while referring to three RTI applications of the Appellant dated 16.02.2017, 23.02.2017 and 10.03.2017, stated that inspection of documents was offered to the Appellant but he failed to appear before the Authority on 22.12.2017 and disposed off the Appeal.

RTI – III File No. CIC/FRASL/A/2018/126376-BJ

FACTS:

The Appellant vide his RTI application sought information on 07 points regarding the details of total budget allotted to CFL, Kolkata and FRSL, Ghaziabad for the Financial Year 2013-14 to 2015-16 for both laboratories; details of expenditure incurred in the year 2013-14 to 2015-16 for both the laboratories; details of expenditure made on purchase of diesel and petrol in the year 2013-14 to 2015-2016 with the copy of purchase cash memo, etc.

The CPIO/CTO, Food Research & Standardisation Laboratory, vide its letter dated 17.04.2017, with regard to Serial number (1) and (2) forwarded the RTI application to the CPIO, Central Food Laboratory, Kolkata, with the direction to provide information directly to the Appellant. Subsequently, the CPIO, Ghaziabad, vide its letter dated 27.04.2017 stated that the information sought was voluminous in nature and that the laboratory was reeling under acute shortage of Man Power due to the repatriation of 20 employees to Dte. General of Health Services, M/o Health and Family Welfare, New Delhi. Furthermore, approval for manpower had been sought from FSSAI, New Delhi and it may take time to get the man power & to provide the reply of information sought in the RTI application. Subsequently, the CPIO, Ghaziabad, vide its letter dated 08.08.2017 enclosed the available information to the Appellant. Dissatisfied by the response, the Appellant approached the FAA. The Director and FAA, Food Research and Standardisation Laboratory, vide its order dated 03.01.2018 while referring to three RTI applications of the Appellant dated 16.02.2017, 23.02.2017 and 10.03.2017, stated that inspection of documents was offered to the Appellant but he failed to appear before the Authority on 22.12.2017 and disposed off the Appeal.

HEARING:

Facts emerging during the hearing:

The following were present:

Appellant: Mr. Indrasen Singh (arrived late), through VC;

Respondent: Mr. S. S. Raghav, CTO & CPIO;

The Appellant while apologizing for delay in arrival reiterated the contents of the RTI applications and stated that the information sought in all the three applications was not satisfactorily answered. He further submitted that the information sought was willfully and malafidely denied by the Respondent Public Authority after taking extension of time twice citing paucity of manpower and HR resources. Despite sending reminders repeatedly, no information was provided to him. It was further alleged that the CPIO/FAA had decided the application/appeal without considering the provisions of the RTI Act, 2005, to conceal the material information. He further submitted that consequent to his reminder I, the CPIO consistently requested for 15-20 days time citing its helplessness and other official limitations. It was persistently mentioned that despite the CPIO’s assurance, no response was provided, till date. In its reply, the Respondent submitted in File No. CIC/FRASL/A/2018/110143 that the application for points (I), (II, (III), 3 (V) and (VI) was transferred to CFL, Kolkata, and in File No. CIC/FRASL/A/2018/125348, that the application for Para 1 regarding the details of National Tobacco Testing Laboratory, was forwarded to Deputy Secretary, Ministry of Health and Family Welfare, New Delhi, and in File No. CIC/FRASL/A/2018/126376, directed the CFL, Kolkata, to provide information at Serial No. (1) and (2) of the application directly to the Appellant. Furthermore, part of the information as available with them was furnished to the Appellant. Moreover, for some information which was voluminous in nature, it was submitted that the laboratory was reeling under acute shortage of man power due to the repatriation of 20 employees to DGHS, M/o Health and Family Welfare, New Delhi. Furthermore, it was argued that the approval for additional manpower had been sought from FSSAI, New Delhi. The Appellant contested the above averments of the Respondent and submitted that he had received information from CFL, Kolkata but FRSL, Ghaziabad had not provided information on frivolous grounds. He also prayed for imposition of penalty on erring Respondent for knowingly and malafidely giving incomplete and misleading information. It was further articulated that the desired information was in the larger public interest and that the same should be provided by the Respondent point-wise as sought in the RTIs forthwith. On being queried by the Commission, whether the details pertaining to numbers of food samples analyzed (year-wise), details of quantity of chemical consumption occurred by Laboratories, details of budget allotted for National Tobacco Testing Laboratory, details of storage facility and storage capacity of diesel and petrol which could be stored at a time, etc. were notified in the public domain, the Respondent feigned ignorance about it and further submitted that the State Government issues advisory from time to time in this regard and also places it in the public domain. The Respondent further submitted that inspection of documents was offered to the Appellant on 22.12.2017 which was not availed by him and due to paucity of staff they were unable to compile such voluminous documents/data for the years mentioned in the application. The Appellant however desired information instead of inspection since he apprehended threat to his life and personal safety if he was to undertake inspection.

The Commission was also in receipt of a written submission from the Respondent dated 28.06.2019 in all the three Appeals, wherein it was submitted that the information sought by the Applicant regarding Manpower/Staff posted at FRSL, Ghaziabad, from 2013 to 2017 with attendance/various points regarding, FRSL, Ghaziabad, from 2011 to 2016 and for the period 2013 to 2016 was very bulky/old and voluminous information and could not be provided as the Laboratory was facing acute shortage of manpower and all the previous employees who were dealing the works related to the information sought, had been repatriated to the DGHS on 31.10.2016. Moreover, the old records had been kept in the old building of old Navyug Market, Ghaziabad Office which is closed for more than 10 years having no electricity connection, ventilation toilet or water connection. Furthermore, the building is approx 17,000 square ft. and is chock-a-block with the old instruments, furniture, Almirahs and other material after modernization under PPP Model of new Indirapuram building of FRSL, Ghaziabad. It was further submitted that the Applicant was also requested to visit the FRSL, Ghaziabad, to see and search the desired information and is again requested to visit and to collect the information.

The Commission felt that timely response is the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this context, the

Commission referred to the decision 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.”

With regard to providing a clear and cogent response to the Appellant, the Commission referred to the decision of the Hon’ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:

“ 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.”

8………….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.”

The Hon’ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed

“…..that a CPIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information. The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow”.

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.

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 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.

With regard to larger public interest involved in the matter, the Commission referred to the decision of the Hon’ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term “Public Interest” held:

“22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)].”

The Hon’ble Supreme Court in the matter of Ashok Kumar Pandey vs The State of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of “public interest’, which is stated as under:

“Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus: "Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected." In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows : Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government....”

Every action of a Public Authority is expected to be carried out in Public Interest. The Hon’ble Supreme Court of India in the matter of Kumari Shrilekha Vidyarthi, etc vs. State of UP and Ors., 1990 SCR Supl. (1) 625 dated 20.09.1990 wherein it had been held as under:

“Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest.”

Similarly, the Hon’ble Supreme Court of India in the matter of LIC of India vs. Consumer Education and Research Centre, AIR 1995 SC 1811 dated 10.05.1995 had held as under: “Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public interest. It is the exercise of the public power or action hedged with public element becomes open to challenge.

With regard to imposition of penalty on the erring Respondent, the Commission referred to the decision of the Hon’ble High Court of Karnataka in the matter of K.A. Dayanand vs. The Karnataka State Information Commission and Ors., WP Nos. 48013 and 48012 (GM-RES) dated 06.09.2018 held as under:

“13. Having gone through the pleadings, documents on record and having heard the submissions of the learned Counsels, this Court is of the opinion that the petitioner had made all the efforts to supply the required information to the second respondent. Had the second respondent co-operated with the petitioner in trying to identify the documents and information required, the information sought could have been provided to him well within the prescribed period.

14. Attention of this Court was drawn to the judgment of the Hon'ble Supreme Court in the case of Chief Information Commissioner and another Vs. State of Manipura & Another reported in MANU/SC/1484/2011 : AIR 2012 SC 864; wherein their Lordships have held that the remedy for a person who had sought information and was refused information, was to make an appeal under Section 19 of the RTI Act. Their Lordships have held that the nature of power under Section 18 of the Act is supervisory in character whereas the procedure under Section 19 is an appellate procedure and a person who is aggrieved by refusal in receiving the information which he has sought for can only seek redressed in the manner provided in the statute, namely, by following the procedure under Section 19. Section 7 read with Section 19 provides a complete statutory mechanism to a person who is aggrieved by refusal to receive information. Such person has to get the information by following the aforesaid statutory provisions. Sections 18 and 19 of the Act, serve two different purposes and lay down two different procedures and provide two different remedies. One cannot be a substitute for the other. While holding so, the Hon'ble Supreme Court has clarified the position that an appeal under Section 18 of the Act cannot be filed before the Chief Information Officer. In the instant case, a complaint is filed under Section 18(1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,- (a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be; (b) who has been refused access to any information requested under this Act; (c) who has not been given a response to a request for information or access to information within the time limit specified under this Act; (d) who has been required to pay an amount of fee which he or she considers unreasonable; (e) who believes that he or she has been given incomplete, misleading or false information under this Act; and (f) in respect of any other matter relating to requesting or obtaining access to records under this Act. of the Act. In the light of the judgment of the Hon'ble Supreme Court, the complaint made by the second respondent herein is not sustainable.

15. In the light of the discussions made above, this Court is of the opinion that the penalty imposed on the petitioner cannot be sustained. The petitions are accordingly allowed and the operation of the impugned order to the extent where penalty of Rs. 5,000/- was imposed on the petitioner, is hereby quashed and set aside. No order as to costs.”

DECISION:

The Commission was appalled to learn that an important and sensitive organization like FSSAI meant to research, preserve and notify standards for food safety for normal consumption by the mankind was itself pleading helpless in securing, maintaining, documenting and digitizing its own records thereby not able to fulfill the mandate for which it was constituted. The mandate of FSSAI has been laid down in the Food Safety and Standards Act, 2006 wherein it is mentioned that FSSAI has been created for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import to ensure availability of safe and wholesome food for human consumption. The Act also aims to establish a single reference point for all matters relating to food safety and standards, by moving from multi- level, multidepartmental control to a single line of command. By its own admission during the hearing and in writing, citing reasons for paucity of manpower and lack of infrastructure facilities can be no grounds for denial of information in respect of the issues impinging on the larger public interest. Therefore, keeping in view the facts of the case and the submissions made by both the parties and in the light of the criticality and sensitivity of the subject matter, the Commission directs the Director and First Appellate Authority, National Food Laboratory (formerly Food Research and Standardisation Laboratory), Ghaziabad, to re-examine the matters and furnish a clear, cogent, point-wise reply as available in the Respondent Public Authority to the Appellant in accordance with the provisions of the RTI Act, 2005 within a period of 15 days from the date of receipt of this order.

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 Appeals stand disposed with the above direction.

(Bimal Julka)

(Information Commissioner)

Citation: Mr. Rajesh Kumar v. Central Revenues Control Laboratory in Second Appeal No.(s):- CIC/CRCLT/A/2018/111318-BJ+ CIC/CRCLT/A/2018/112916-BJ, Date of Decision: 05.07.2019