Copy of proposal sent from Ministry of Coal for post facto sanction of Additional Charge of Commissioner was sought - CIC took grave exception to the fact that no reply was provided; CPIO cannot absolve himself from the responsibility of replying to RTI
15 Jul, 2019Information sought:
The Appellant sought the copy of proposal sent from Ministry of Coal for post facto sanction of Additional Charge of Commissioner, Coal Mines Provident Fund Organization to Sri Animesh Bharti, Economic Advisor and putting him under compulsory wait and related notesheet.
Grounds for the Second Appeal:
The CPIO has not provided the desired information.
Relevant Facts emerging during Hearing:
The following were present:- Appellant: Not present. Respondent No.1: S. Basu, US & CPIO, M/o Personnel, Public Grievances and Pensions, Department of Personnel & Training, North Block, New Delhi present in person. Respondent No.2: Bijoy Samantu, Under Secretary & Rep. of CPIO, Ministry of Coal, New Delhi present in person.
Respondent No.1 submitted that appropriate reply was provided on the RTI Application citing Section 8(1)(i) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; of RTI Act for denial of the information as it pertained to ACC proposal in line with the stay order of the Hon’ble Delhi High Court in LPA No. 347/2010. He further submitted that the RTI Application was also transferred under Section 6(3) of RTI Act to Respondent No.2 vide letter dated 02.08.2017.
Rep. of Respondent No.2 submitted that he is not aware of the action taken, if any, in the matter as their CPIO is on election duty he has been merely asked to represent the case.
Commission took exception to the fact that Rep. of Respondent No.2 has been assigned to represent the case without even apprising him about the facts of the case. Rep. of Respondent No.2 was directed to intimate the Commission via email all facts of the case by end of day.
Commission further remarked upon perusal of facts on record that the denial of information under Section 8(1)(i) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; of RTI Act citing the stay order of Hon’ble Delhi High Court in LPA No. 347/2010 is not appropriate. Commission has adequately adjudicated on the subject of disclosure of ACC records in the matter of Nutan Thakur vs. DoPT in a number of Appeals heard on 19.03.2019 and 26.03.2019, specific reference may be had of File No: CIC/DOP&T/A/2017/160659/SD, wherein the following was held:
“As regards the stay of Hon’ble Delhi High Court vide LPA No. 347/2010 is concerned, Commission notes that the applicability of Section 8(1)(i) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; of RTI Act is not what is pending adjudication but the moot question is based on a decision of First Appellate Authority as extracted in para 53 of the judgment in W.P (C) No. 8396/2009 which states as under:
‘…….This rule-making power (for conduct of the Government business) of the President of India is his supreme power, in his capacity as the supreme executive of India. This power is unencumbered even by the Acts of Parliament, as this rule-making power flows from the direct constitutional mandate and they are not product of any legislative authorization. In view of the fact that the ―separation of powers‖ is one of the fundamental feature of the our Constitution, these rules, promulgated by the President of India, for regulation of conduct of Government‘s business (Transaction of business and allocation of business) cannot be fettered by any act or by any Judicial decision of any Court, Commission, Tribunal, etc. Since ACC is a product of the rules framed under Article 77(3) of the Constitution of India, its business (deliberations including the decision whether they are to be made public) are not the subject-matter of the decisions of any other authority other than the President of India himself.
Therefore, unless these rules, framed under Article 77(3) themselves provide for disclosure of information pertaining to the working of the cabinet and its committees, no disclosure can be made pertaining to them, under the RTI Act. Therefore, the RTI Act has rightly provided for non-disclosure of the information pertaining to ―Cabinet Papers.’
In other words, the issue pending adjudication in LPA No. 347/2010 is whether records of ACC being Cabinet papers are yet distinct from the records of deliberations of Council of Ministers or not.
It is pertinent to note that Section 8(1)(i) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; of RTI Act provides for exemption of cabinet papers including deliberations of Council of Ministers, where decision has not been taken, the matter is not complete, or over. In the instant case, information sought pertains to appointments already made, in other words, where process of appointment is in itself over. Adverting to the genesis of LPA No. 347/2010, it is not appropriate for the CPIO to cite Section 8(1)(i) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; of RTI Act but should only restrict to the factum of the stay order operative on the subject of disclosure of records of ACC.”
In light of the aforesaid decision, Commission remarked in this case that the information sought on paras 1 & 2 of the RTI Application has no bearing on ACC records. Information sought vide para 1 of the RTI Application seeks a copy of proposal sent from Ministry of Coal and not the ACC proposal per se, while para 2 seeks copy of letter issued from DoPT in this regard. It is only the information sought at para 3 of the RTI Application which is directly related to disclosure of ACC records and thus covered by the stay order of the Hon’ble Delhi High Court in LPA No. 347/2010.
Respondent(s) agreed to abide by the order of the Commission.
Decision
Commission received written submissions of P.S.L. Swami, Deputy Secretary, Ministry of Coal on behalf of Respondent No.2 and his representative via email subsequent to the hearing stating that no reply was provided on the RTI Application as Respondent No.1 had already provided the reply to the Appellant.
Commission takes grave exception to the fact that no reply was provided on the RTI Application by Respondent No.2 and the reasons afforded for the same is also absurd. Under RTI Act, CPIO cannot absolve himself from the responsibility of replying on RTI Applications on such flimsy pretexts that it was replied to by another public authority. Since the RTI Application was duly transferred under Section 6(3) of RTI Act to Respondent No.2, he was duty bound to provide a reply within the stipulated time frame of RTI Act. Commission warns Respondent No.2 to remain careful in future and to steer clear of making feeble excuses for violating the provisions of RTI Act.
Further, in view of the hearing proceedings, Commission directs Respondent No.2 to provide available and specific information sought at para 1 & 2 of the RTI Application to the Appellant free of cost within 15 days from the date of receipt of this order. A compliance report to this effect be duly sent to the Commission.
The appeal is disposed of accordingly.
Divya Prakash Sinha
Information Commissioner
Citation: B K Panda v. CPIO, M/o Personnel, Public Grievances And Pensions, DoPT and Ministry of Coal in File No : CIC/DOP&T/A/2017/180123/SD, Date of Decision : 15/04/2019