The FAA is an independent quasi-judicial authority; PIO could have sought assistance u/S 5(4) of the RTI Act from the concerned authority - PIO reprimanded to be more meticulous about his duties & give appropriate replies to the RTI applicant within time27 Sep, 2020
O R D E R
1. The complainant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), M/o Finance, Department of Economic Affairs, Under Secretary (S&C), Currency & Coinage Division, North Block, New Delhi seeking following information:-
“(i) Subject matter of information: Pertaining to Email reminder addressed to the First Appellate Authority Shri Sachdeva Dtd 20.8.18 ref to First Appeal Reg No. DOEAF/A/2018/60039 Dtd 15.7.18 not DISPOSED till date.
(ii) The period to which information relates: 15.07.2018 to Current Date
(iii)Description of Information required: Please provide certified copies of the following information by Speed/Registered Post:
1. Action taken report by Shri Sachdeva the current FAA.;
2. In case no action being taken for Sno 1 then provide reasons available in records along with Name and Designation of the controlling authority to whom matter can be reported;
3. Name and Designation of the official whose assistance is sought u/s 5(4) + 5(5).”
2. The response of CPIO is not on record. Thereafter, the complainant filed a complaint u/Section 18 of the RTI Act before the Commission requesting to take appropriate legal action against the CPIO u/Section 20 of the RTI Act, 2005.
3. The complainant, Mr. Varun Krishna attended the hearing through audio conferencing. The respondent, Shri Rajiv Ranjan Singh, PIO along with Shri Dalip Singh, then PIO attended the hearing through audio-conferencing.
4. The respondent submitted their written submissions dated 06.08.2020 and the same has been taken on record.
5. The complainant submitted that no information has been provided to him by the respondent on his RTI application dated 30.11.2018. The complainant contended that the respondent with malafide intention has obstructed the information under the RTI Act. Therefore, an appropriate legal action should be initiated against the then CPIO u/Section 20 of the RTI Act, 2005.
6. The respondent submitted that vide their letter dated 14.02.2019, they have informed the complainant that no information is available on their records as sought by him in his RTI application. On query from the Commission that as to whether the assistance was sought from the office of FAA Shri Sachdeva in order to obtain the information. The response of the respondent was negative. The Commission further inquired from the Commission that as to why there was a delay in giving reply to the RTI applicant. On this, the respondent submitted that when he has taken the charge of CPIO, there were numerous applications which were pending for disposal which were lying in the period of Shri Ganga Kumar Sinha, then PIO. Therefore, it took time to give reply to the applicant.
7. This Commission is not adjudicating on furnishing the information to the complainant and therefore, the legal issue to be decided herein is whether there is any malafide of the then CPIO which attracts penal action u/Section 20 of the RTI Act, 2005. The complainant contested that there is a malafide intention on the part of the respondent public authority in obstructing the information. On the other hand, the respondent contended that there was no malafide intention in denying the information. The status which is available has been provided to the applicant.
8. The Commission observed that there is a delay in giving reply to the complainant on his RTI application. Further, the respondent in its reply has merely submitted that no records are available and further made an oral arguments that they have not received any direction from the office of the FAA and they have assumed that no documents were available on the subject. The Commission further observed that the complainant has sought information regarding the status of first appeal (as mentioned in the RTI application) which is lying with the FAA. The First Appellate Authority is an independent quasi-judicial authority and the respondent CPIO could have sought assistance under Section 5(4) of the RTI Act from the concerned authority in order to confirm the status of information as sought in the RTI application. But the CPIO instead of taking these steps, has expected that some direction will come from the office of the FAA.
9. In view of the above, the then CPIO is reprimanded to be more meticulous about his duties as a CPIO and give appropriate replies to the RTI applicant within stipulated period of time as per the provisions of the RTI Act. A reference was drawn to the decision of the Hon’ble Delhi High Court in the case of J.P Agrawal v. Union of India-2013(287) ELT25(Del.) wherein it was held as under:
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.”
10. Further, the Commission finds no malafide intention on the part of the CPIO in obstructing the information. The Commission further relies upon the ruling of Hon’ble Delhi High Court in W.P.(C) 11271/2009 Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. (delivered on: 01.06.2012) wherein it was held:
“ 61. Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a showcause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to ful fill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute.”
11. Further, while examining the complaint under Section 18 of the RTI Act, the CIC has no jurisdiction to direct disclosure of any information. This legal position has been authoritatively settled by the Hon’ble Supreme Court of India in Chief Information Commissioner and Another v. State of Manipur and Anr. in Civil Appeal Nos. 10787-10788 of 2011 dated 12-12-2011. The relevant extract of the said decision is set down below:-
“30. It has been contended before us by the respondent that under Section 18 of the Act the Central Information Commission or the State Information Commission has no power to provide access to the information which has been requested for by any person but which has been denied to him. The only order which can be passed by the Central Information Commission or the State Information Commission, as the case may be, under Section 18 is an order of penalty provided under Section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide. 31. We uphold the said contention and do not find any error in the impugned judgment of the High court whereby it has been held that the Commissioner while entertaining a complaint under Section 18 of the said Act has no jurisdiction to pass an order providing for access to the information.”
12. With the above observations, the complaint is disposed of.
13. Copy of the decision be provided free of cost to the parties.
Neeraj Kumar Gupta
Citation: Varun Krishna v. Department of Economic Affairs in Complaint No. CIC/DOEAF/C/2018/637698, Date: 18.08.2020