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Information about a Cabinet Note on Pay Commission - Basis on which OM about dearness allowance was issued was denied as being secret - CIC severely admonished the PIO and issued a strict warning to ensure to acquaint himself well with the RTI provisions

2 Jul, 2022

Information about a Cabinet Note on the basis of which the decision was taken and certain OM regarding rate of dearness allowance was issued was denied as being secret - CIC severely admonished the PIO and issued a strict warning to ensure that he first acquaints himself well with the provisions of the RTI Act and secondly, he has to own up to his actions and be accountable for his replies under the RTI Act without having to rely on a subordinate officer to even speak on his behalf during a show-cause hearing

Information sought:

The Complainant filed an online RTI application dated 23.10.2020 seeking the following information:

“ ………(i) a copy of the Cabinet Note on the basis of which the decision was taken and OM No. 1/3(1)/2008-EA B dated 25/10/2019 regarding rate of dearness allowance applicable w.e.f 01/07/2019 to employees of central government and central autonomous bodies continuing to draw their pay in the pre-revised pay scales as per 6th Pay Commission was issued.

(ii) a copy of the Cabinet Note on the basis of which the decision was taken and OM No. 1/3(2)/2008-E.A.B dated 25/10/2019 regarding rate of dearness allowance applicable w.e.f 01/07/2019 to employees of central government and central autonomous bodies continuing to draw their pay in the pre-revised pay scales as per 6th Pay Commission was issued.”

The CPIO furnished reply to the complainant on 27.11.2020 stated as follows:-

“……..the information seeking copy of the Cabinet Note, the information sought cannot be made available to you since noting in the file/Cabinet Note in respect of revision of rate of DA is a secret document.

2. ………..the information seeking copy of this Department's OMs bearing No. 1/3(1)/2008-E.11(B) & No. 1/3(2)/2008-E.II(B) dated 25.10.2019 reg. grant of DA at revised rate w.e.f. 01.07.2019 to the employees of Central Govt. & Central Autonomous Bodies drawing their pay in pre-revised rates, it is informed that the above' orders of DA have been placed in public domain and can be accessed from this Department's website at URL:doe.gov.in/Dearnes-Allowance.”

Being dissatisfied, the complainant filed a complaint to the Commission.

Relevant Facts emerging during Hearing:

The following were present:-

Complainant: Present through audio conference.

Respondent: Surendra Kumar, US & CPIO present through audio conference.

The Complainant stated that he is aggrieved with the denial of the information as 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; of the RTI Act clearly states that the material based on which the decisions of the Council of Ministers were taken shall be made public after the decision has been taken and matter is complete. But in the instant RTI Application, even though he has asked for a Cabinet Decision which was not just final but the decision was over by way of publication of the averred OM, the information was denied to him.

Interim Decision

The Commission based on a perusal of the facts on record finds that the denial of the information by the CPIO is clearly arbitrary and in gross violation of the provisions of the RTI Act. The CPIO has not bothered to invoke any exemption clause of the RTI Act to deny the information or mentioned any reasoning which corresponds to any of the prescribed exemptions. Moreover, concededly, since the averred Cabinet Decision was final and matter was complete, the information could not have been withheld by the CPIO. Even if it is assumed for the sake of argument that the CPIO was not aware of the provisions of the RTI Act, it is pertinent to note that the Appellant had beforehand made a mention of the relevant provision 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; of the RTI Act in the contents of his RTI Application yet the CPIO appears to have not heeded to the same.

Having observed as above, the denial of the information by the CPIO appears to be deliberate and he is therefore liable to be imposed with a maximum penalty as prescribed 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. 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.

In view of the foregoing, Surendra Kumar, US & CPIO is hereby directed to appear before this bench on 28.03.2022 at 12.00 pm to show-cause as to why action should not be initiated against him 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. 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 for primafacie willful obstruction to the Complainant’s right to information. The CPIO is also directed to send his written submissions along with supporting documents, if any, to the Commission 48 hours prior to the hearing.

Relevant Facts emerging during Hearing:

The following were present:-

Respondent: Surendra Kumar, US & CPIO present through audio conference.

The CPIO relied on his written submissions dated 25.03.2022 sent prior to the hearing wherein the following explanation has been tendered:

“….That DA for Central Govt. employees drawing pay in revised pay structure get enhanced every six months on the basis of Cabinet decision taken in this regard. That the orders for increase in DA to Central Govt. employees and employees of Central Autonomous bodies continuing to draw their pay in the prerevised pay scale/Grade pay, as per 6th CPC is taken up subsequently, on the basis of Cabinet decision already taken. That the information sought could not be furnished in view of the fact that sanction of DA is not a onetime event.

…For increase in the rate of DA in respect of employees drawing pay as per 7th CPC, approval of the Cabinet is obtained. However, for increase in the rate of DA in respect of employees drawing pay in pre-revised pay scale as per 6th CPC, approval of the Cabinet is not obtained and it is issued with the approval of Secretary (Expenditure). Therefore, there is no Cabinet Note for the same.”

The Commission took adverse note of the fact that the CPIO miserably failed at even communicating his written submissions verbally and appeared out of his wits and oblivious to the fact that he was presenting his case against a penalty show cause notice. He was persistently depending upon his Section Officer to speak on his behalf and remained flustered throughout the course of the hearing but pleaded that his omission may be condoned this time.

FINAL DECISION

Having perused the written submissions and considering the deposition of the CPIO during the hearing, the Commission is unable to accord a malafide intention or for that matter a deliberate attempt at withholding the information by the CPIO as it is apparent now that the Cabinet note requested for by the Complainant does not even exist, which makes the question of ‘secrecy’ or 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; of the RTI Act redundant.

It was incumbent upon the CPIO to have applied his mind and provide the averred explanation to the Complainant at the time of replying to the instant RTI Application instead of providing the evasive and clearly misleading reply. It is also apparent that the CPIO has absolutely no knowledge about the provisions of the RTI Act as he denied the information by citing it as a ‘secret document’.

The Commission hereby severely admonishes Surendra Kumar, US & CPIO and he is issued with a strict warning to ensure that he first acquaints himself well with the provisions of the RTI Act and secondly, he has to own up to his actions and be accountable for his replies under the RTI Act without having to rely on a subordinate officer to even speak on his behalf during a show-cause hearing. Surendra Kumar, US & CPIO shall note that recurrence of a similar lapse in future will attract imposition of maximum penalty as well as initiation of disciplinary proceedings against him 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. 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. & (2) of the RTI Act.

In the present matter, the penalty proceedings are hereby dropped in light of a judgment of the Hon’ble Delhi High Court in the matter of Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. [W.P.(C) 11271/2009] dated 01.06.2012 wherein it was held:

“ 61. 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....”

Similarly, an observation of the Hon’ble Delhi High Court in the matter of Bhagat Singh vs. CIC & Ors. WP(C) 3114/2007 is also relevant to point out here which reads as under:

“17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued.”

The appeal is disposed of accordingly.

Saroj Punhani

Information Commissioner

Citation: R. Rajasekharan v. Department of Expenditure in File No : CIC/DOEXP/C/2020/138545, Date of Interim Decision : 07/03/2022, Date of Final decision: 28/03/2022

Information about a Cabinet Note on Pay Commission - Basis on which OM about dearness allowance was issued was denied as being secret - CIC severely admonished the PIO and issued a strict warning to ensure to acquaint himself well with the RTI provisions

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