Do the Atomic Energy Education Society & its employees fall within the meaning of “State” under Article 12 of the Constitution? - Department of Atomic Energy provided a different reply against identical RTI queries - CIC: Show cause notice issued to PIO

Do the Atomic Energy Education Society and its employees fall within the meaning of “State” under Article 12 of the Constitution of India? - Department of Atomic Energy (DAE) provided a different reply to him against identical RTI queries - CIC: The reply appears to be incorrect; PIO to explain why action 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. 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 should not be initiated against him

O R D E R

1. The appellant filed an online application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), Atomic Energy Education Society (AEES), Central Office, Western Sector, Mumbai seeking information as to whether the Atomic Energy Education Society, Mumbai and its employees fall within the meaning of “State” under Article 12 of the Constitution of India.

2. The appellant filed a second appeal before the Commission on the ground that the response provided by the CPIO/ FAA is incorrect since the Department of Atomic Energy (DAE) provided a different reply to him against identical RTI queries. The appellant therefore prayed before the Commission to allow the appeal and direct the respondent to disclose the correct information.

Hearing:

3. Shri Vikas Kumar Ola, representative of the appellant and Smt. Shobhana Panicker, CPIO and Assistant Administrative Officer, representing AEES, Mumbai were heard through video conferencing.

 4. The appellant’s representative submitted that incorrect and misleading information has been provided by the CPIO/ FAA since the DAE vide its reply dated 22.02.2018 in response to an online RTI application dated 08.01.2018 had informed him that the AEES, Mumbai falls within the purview of the definition of the term “State” under Article 12 of the Constitution of India. The appellant also uploaded a copy of the reply dated 29.12.2017 issued by the DAE, GoI in response to another RTI application filed by him dated 22.12.2017 wherein it was informed that the monthly salary/remuneration to the employees of AEES is paid by the Government of India.

5. The respondent submitted that the RTI application dated 23.01.2018 was replied by the CPIO vide letter dated 06.02.2018. The respondent while re-iterating their stand that the AEES, Mumbai did not fall within the definition of the term “State” under Article 12 of the Constitution of India referred to the decision of Hon’ble High Court of Patna in Gharendra Kumar Lodhi vs. Atomic Energy Society, SLP No. 20768/1997 dated 21.11.1997 in support of their contention.

Decision:

6. The Commission, after hearing the submissions of both the parties and perusing the records, observes that the AEES is a body under the DAE. Further, though the CPIO, AEES has stated that AEES is not covered within the definition of “State” under Article 12 of the Constitution of India, DAE, has vide reply dated 22.01.2018 stated that AEES and its officers fall within the meaning of State. The Commission also notes that the Hon’ble Andhra High Court in case of Md. Saleem vs. Atomic Energy Education Society [2003(6) ALD 778, 2003 (6) ALT 718, dated 17.10.2003] has observed that:

“10. I am fortified in my view that the Respondent Educational Society falls within the parameters required by law, to term it as an Instrumentality of State, by the ratio that emerges from the decision of the Apex Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors., wherein majority of Their Lordships have laid down the tests to determine the question as to a body when can be said to fall within the scope of a State. Their Lordships held that the question in each case would whether on facts the body is financially, functionally and administratively dominated by or under the control of the Government and such a control must be particular to that body and must be pervasive and if that is in affirmative, then that body is a State. Therefore, the facts and circumstances narrated above certainly satisfy the tests laid down by the Apex Court in Pradeep Kumar Biswas's case that the Society is financially, functionally and administratively dominated by the Atomic Energy Department through its Chairman by way of nominating the Chairman of the Governing Council. Thereafter with the prior approval of the Chairman, Atomic Energy Commission/ Secretary, Department of Atomic Energy, appoint two of the other Members of the Governing Council, from amongst academicians of standing entire funding is made by the Department of Atomic Energy. Therefore, as stated earlier, the Society squarely falls within the meaning of State or the Instrumentality of State, under Article 12 of the Constitution of India.”

7. In view of the above, the reply furnished by the respondent appears to be incorrect. The Commission, therefore, directs the Registry of this Bench to issue a Show Cause Notice to the CPIO, Atomic Energy Education Society (AEES), Central Office, Western Sector, Mumbai for explaining as to why action under 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 should not be initiated against him.

8. The Commission also directs the CPIO to revisit the RTI application and furnish the information sought for by the appellant within a period of four weeks from the date of receipt of a copy of this order.

9. With the above observations, the appeal is disposed of.

 10. Copy of the decision be provided free of cost to the parties.

Sudhir Bhargava

Chief Information Commissioner

Citation: Virendra Singh v. CPIO, Atomic Energy Education Society in Second Appeal No. CIC/AEESO/A/2018/614345, Date of order 27.08.2019