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Commission found that no adequate reason has been cited for not replying to the two RTI applications dated 14/08/2014 upto 1/1/2016; The delay exceeds 100 days - CIC: The maximum penalty of Rs. 25000/- imposed on PIO as per Section 20(1) of the RTI Act

2 Aug, 2016

02 May 2016

Information sought:

File No. CIC/BS/A/2015/000019

The appellant has sought the authenticated copies of all the office notes, correspondences starting from lowest functionary to highest functionary on the basis of which memorandum No. F.11-03/2014. Vig dated 01/02 July 2014 has been issued to me.

File No. CIC/BS/A/2015/000020

The appellant has sought the authenticated copies of all the office notes starting from lowest functionary to highest functionary on the basis of which communication No. 2-1/2009-SPG dated 28th October 2013 was issued to me

File No. CIC/BS/A/2015/000024

1. In reference to email sent on Wednesday on 30th April 2014 at 12.44 pm from kumarraj.dop@nic.in to alvaro.rodriguez@undp.org with copy to Michael Liley, Anne Bogh Faber, Abdul Rahman Azizi, Reynaud Meyer and Krishnaveny Raju. This email was apparently written by Director Staff in his official capacity. Supply all the office notes starting from lowest functionary to highest functionary whereby the said Director Staff was authorized to communicate with foreign authorities in his official capacity.

2. In reference to email sent on 10th September 2013 at 03.51 pm from kumarraj.dop@nic.in to alvaro.rodriguez@undp.org with copy to krishnaveny.raju@undp.org, ayna.khaidove@undp.org and abdulrahman.azizi@undp.org. Supply all the office notes starting from lowest functionary to highest functionary whereby the said Director Staff was authorized to communicate via this email with foreign authorities in his official capacity.

Grounds for the Second Appeal: The CPIO has not provided the desired information.

Relevant Facts emerging during Hearing: The following were present

Appellant: Ms. Harjot Kaur through TC (M: 0788704068 )

Respondent: Ms. Alka Tewari CPIO (Vig), Sh. Manoj Sharma CPIO (SPG) Mr. Ajay Raj Singh

It is seen that the information sought in all the three appeals relates to service matter of the

appellant and hence they are heard together and disposed of by a common order.

File No. CIC/BS/A/2015/000019

The CPIO (Vig) stated that the information sought in the RTI application dated 14/08/2014 relates to disciplinary proceedings initiated against the appellant and cannot be provided at this stage as enquiry is in progress and any pre-mature disclosure is likely to impede the proceedings. She claimed exemption under Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the RTI Act. The appellant stated that Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; applies only to criminal proceedings and departmental action cannot be brought under the said exemption. The CPIO contested stating that it has been the consistent stand of the Commission that Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; is attracted even in departmental proceedings. In support of her contention she cited the Commission decision dated 10/07/2007 Appeal No. CIC/AT/A/2007/0007, 10 & 11 (Shankar Sharma & Others Vs. DGIT) holding as under:

“17. Thus, the term ‘investigation’ used in Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; , in the context of this Act should be interpreted broadly and liberally. We cannot import into RTI Act the technical definition of ‘investigation’ one finds in Criminal Law. Here, investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on. Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken. In that sense, an investigation can be an extended investigation. …………………”

File No. CIC/BS/A/2015/000020 & CIC/BS/A/2015/000024

The CPIO (SPG) stated that the appellant’s files were received back from vigilance department in November 2015 and all information requested by her in her above mentioned RTI applications has already been forwarded to her vide letter dated 01/01/2016. The appellant pointed out that the information has been withheld for more than one & half years for no tangible reason and penal proceedings should be initiated against the concerned CPIO. The CPIO (SPG) explained that the files were requisitioned by Vigilance department and they had transferred the RTI applications to them and had informed the appellant accordingly. To a query, the CPIO informed that the then CPIO vigilance department was Mr. Devendra S. Uikey who is now posted as ADG (PG).

Decision notice:

File No. CIC/BS/A/2015/000019:

A full bench of this Commission in its order dated 28/11/2014 (File No.CIC/SM/A/2012/001020 – A K Agrawal V/S RIL) has held as under: -

“14. This Commission in its decision dated 10.7.2007 in Appeal No. CIC/AT/A/2007/0007, 10 & 11 (Shankar Sharma & Others Vs. DGIT) observed that the term ‘investigation’ used in section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the Act should be interpreted broadly and liberally and that no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that decision is taken. This Commission in CIC/AT/A/2007/007/00234 – K.S.Prasad vs SEBI, observed that “…as soon as an investigation or an enquiry by a subordinate Enquiry Officer in Civil and Administrative matters comes to an end and, the investigation report is submitted to a higher authority, it cannot be said to be the end of investigation. ... which can be truly said to be concluded only with the decision by the competent authority.” This Commission in CIC/DS/A/2013/000138/MP – Narender Bansal vs Oriental Insurance Co. Ltd., has held that the investigation in the matter was complete but further action was under process, and hence it attracted section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the Act.”

In the present case inquiry is in progress. The CPIO has claimed exemption under Section 8(1) (h) of the RTI Act. We do not find any legal flaw in the stand taken by the respondent. The information cannot be disclosed at this stage.

This appeal is disposed of accordingly.

File No. CIC/BS/A/2015/000020 & CIC/BS/A/2015/000024

By not furnishing the information timely the concerned CPIO Shri Devendra S Uikey, presently posted as ADG (PG) has rendered himself liable for imposition of penalty in terms of the provisions of 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. 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. However, before imposing any such penalty, we would like to give an opportunity to Shri Uikey to explain whether he had any reasonable cause for not providing the information timely to the appellant. Accordingly, we direct Shri Uikey to submit his written explanation as aforesaid to the Commission on or before 22/02/2016. The explanation should be forwarded by post and also by e-mail at b.seth@nic.in. Shri Uikey should carefully note that in case he fails to provide any satisfactory reply the Commission will proceed to impose penalty on him.

Relevant Facts related to hearing dated 17/03/2016

After having received written submissions dated 20/02/2016 from the then CPIO Mr. Devendra S Uikey, the Commission issued a notice dated 01/03/2016 directing the CPIO(SPG) Mr. Manoj Sharma & Shri Devendra S Uikey ADG(PG) to appear before the Commission on 17/03/2016 at 04:30PM alongwith all relevant records including in particular copy of letter(s) dated 30/09/2014 vide which the RTI applications dated 14/08/2014 were transferred to vigilance division.

Relevant Facts emerging during Hearing held on 17/03/2016: The following were present

Respondent: Shri Devendra S Uikey the then CPIO (Vig.)& Shri Manoj Sharma CPIO (SPG)

The CPIO(SPG) produced copy of letters dated 19/8/2014 & 30/9/2014 vide which the RTI applications were transferred to Vigilance Section for providing the information to the applicant. The then CPIO Sh. D S Uikey has submitted that the Vigilance section had taken a stand that information contained in the file relating to disciplinary matters cannot be provided being exempted under Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the RTI Act till the investigation was over and for this reason the vigilance section did not take any cognizance of the RTI applications received from the SPG Section. He emphatically submitted that copy of the file was available with the SPG section and they could have very well responded to the RTI applications without transferring the same to vigilance section. He also produced the relevant file notings of the SPG Section. The CPIO SPG stated that at the relevant time he was on training and Ms. Alka Tewari was the then link CPIO SPG who decided to transfer the RTI applications to Vigilance Section and she can better explain the facts.

Interim Decision Notice dated 17/03/2016:

In view of the foregoing Ms. Alka Tewari is directed to explain why she transferred the RTI applications to vigilance section when copies of the records were available with SPG Section. The explanation of Ms. Tewari should be forwarded by post and also by email b.seth@nic.in on or before 08/04/2016. Ms. Alka Tewari CPIO(Vig), Shri Devendra S Uikey the then CPIO (Vig.) and Shri Manoj Sharma CPIO (SPG) are hereby directed to appear before the Commission on 28/04/2016 at 04.00 pm.

Relevant Facts related to hearing dated 02/05/2016

The hearing in the instant matter has been postponed to 02/05/2016 at 04.00 PM. All the parties have been informed vide Commission’s letter dated 22/04/2016.

Relevant Facts emerging during Hearing 02/05/2016: The following were present

Respondent: Shri Devendra S Uikey the then CPIO (Vig.), Shri Manoj Sharma CPIO (SPG) & Ms. Alka Tiwari Ms. Alka Tiwari ADG (Vig-I) in her written submission dated 06/04/2016 has stated that during the period she was working as CPIO & ADG (SPN) and was only a link officer to CPIO & ADG (SPG) who was on training and whose RTI application was put up to her by the section. The concerned section i.e. the SPG Section while submitting the relevant RTI did not mention anywhere in the file that photocopies of the file sent to Vigilance Section (on which the RTI query was raised) were kept/available in SPG section itself. In view of this, she transferred the RTI application to the Vigilance Section where the original file stood transferred.

Decision Notice:

From the foregoing it is clear that the appellant’s two RTI applications dated 14/08/2014 (File No. CIC/BS/A/2015/000020 & CIC/BS/A/2015/000024) were not replied upto 1/1/2016. The said applications were received by the then CPIO ADG (SPG) who transferred the same vide letter dated 19/08/2014 to the CPIO Vig Section which held the original files. The CPIO Vigilance Section Shri Devendra Uikey has explained that copy of the files were available with SPG section and they could have replied to the RTI applications. This explanation, however, cannot be accepted as Shri Uikey was the designated CPIO of vigilance section which held the original files and if he wanted SPG section to respond to the RTI applications he could have very well told them to do so.

Thus, in the facts and circumstances of the case the Commission finds that no adequate reason has been cited for not replying to the two RTI applications dated 14/08/2014 upto 1/1/2016. The delay exceeds 100 days. The Commission, therefore, has no other option but to impose the maximum penalty of Rs.25000/- 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. 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 on Shri Devendra S Uikey. The Joint Secretary cum Financial Adviser of the department of post, Dak Bhawan is directed to ensure recovery of this amount from the salary of Shri Devendra S. Uikey responsible for not replying timely to the RTI applications. The penalty amount should be remitted to the Central Information Commission by demand draft latest by 10th August 2016 in favour of “PAO, CAT” payable at New Delhi and sent to Shri S. P. Beck, Joint Secretary, Central Information Commission, August Kranti Bhavan, Bhikaji Cama Place, R K Puram New Delhi 110066.

BASANT SETH

Information Commissioner

Citation: Smt. Harjot Kaur v. Department of Post in File No. CIC/BS/A/2015/000019+000020+000024/9573-Penalty

Commission found that no adequate reason has been cited for not replying to the two RTI applications dated 14/08/2014 upto 1/1/2016; The delay exceeds 100 days - CIC: The maximum penalty of Rs. 25000/- imposed on PIO as per Section 20(1) of the RTI Act

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