PIO: the RTI application was marked on the day of receipt to the section officer; therefore, delay cannot be attributed to him - CIC: there should be an express and material communication to the officer whose assistance is sought; penalty imposed on PIO

There was a delay in providing information - PIO: the RTI application was marked on the day of receipt to the section officer; therefore, the delay cannot be attributed to him - CIC: mere marking the application to subordinate officer does not satisfy the requirement of section 5(4) of the RTI Act; there should be an express and material communication from the PIO to the officer whose assistance is being sought for; penalty of Rs. 11,500/- imposed on PIO

ORDER

1. The Commission through its order dated 30.07.2013, while observing that Shri Anuj Sharma, CPIO, Ministry of Home Affairs has primafacie caused a delay of 50 days in providing information to the Appellant, had directed that a show cause notice be issued to Shri Anuj Sharma asking him to show cause why penalty of Rs. 12,500/at the rate of Rs. 250/per day should not be imposed upon 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. of the RTI Act for causing a delay of 50 days in providing information to the Appellant in respect of his RTI application dated 18.06.2012.

2. A show cause notice dated 31.07.2013 was accordingly issued to Shri Anuj Sharma, Ministry of Home Affairs, New Delhi.

3. Shri Anuj Sharma submitted his reply (to show cause notice) to the Commission by his letter dated 26.08.2013 wherein he has, interalia, explained that the RTI application dated 18.06.2012 of the Appellant was received in the Foreigners Division on 04.07.2012 and that on the same day it was marked to the concerned Under Secretary, who further marked it to Shri Sanjay Singh, Section Officer ICII Section. Thereafter the RTI application was further marked to Shri M.C. Sharma, Consultant on the same day. The application was then processed by the Section Officer on 17.09.2012 and submitted to him (Shri Anuj Sharma) on 18.09.2012. The reply was then sent to the Appellant on same day i.e. 18.09.2012. Shri Sharma has mentioned that the said Section Officer was new to the Section and that he did not understand the matter clearly. He was of the view that application was not covered under the RTI Act, 2005, but was in the nature of seeking a clarification only. Shri Sharma has also mentioned that he was handling many responsibilities involving Visa policy, implementation of IVFRT Project, BPR of the Foreigners Division, OCI matters, Immigration etc. and that therefore he had sought the assistance of the Under Secretary and the Section Officer in terms of section 5(4) of the RTI Act. Shri Sharma has thus pleaded that the delay caused in providing reply to the Appellant was neither intentional nor was it attributed to him. He has thus requested the Commission that penalty may not be imposed on him.

4. Thereafter the matter was heard on 13.11.2013 in the presence of Shri Anuj Sharma (the noticee). During the hearing, Shri Sharma reiterated his submission which he had made in his reply to show cause notice.

5. The facts of the case reveals that there has been an admitted delay of total 46 days (from 03.08.2012 to 17.09.2012), excluding 30 days time period stipulated in section 7(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: of the RTI Act, in providing the information/reply to the Appellant. Therefore there is no dispute about the presence of delay in the instant matter.

6. Now the question is whether there was any ‘reasonable cause’ which prevented the CPIO to furnish the information to the Appellant within the time specified under subsection (1) of section 7 of the RTI Act or not.

7. On perusal of records, the Commission notes that Shri Anuj Sharma was the CPIO in the present case and that it was his statutory responsibility (as defined in section 7(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: of the RTI Act) to provide information to the Appellant within the stipulated time period. His explanation that he had marked the RTI application on the same day when he received it to his subordinate officers and that therefore the delay caused in the matter cannot be attributed to him is not persuasive. Being a CPIO it is his statutory duty to ensure that information is provided to the Appellant within the stipulated time period. In this case he, after having marked the RTI application to his subordinate officers, had not even bothered to follow it up further even after the expiry of 30 days time limit. There is nothing on record produced by him which would show even a single effort made by him to pursue the matter further. He has also taken the plea that he, as a CPIO, had taken the assistance of other officer(s) u/s 5(4) of the RTI Act. Therefore he is not responsible for delay. This plea of Shri Sharma however does not absolve him from his statutory duty of giving information to the Appellant within the stipulated time period. Moreover there is nothing on record by way of evidence showing that Shri Sharma had made a proper reference under section 5(4) of the RTI Act to his subordinate officers. Mere marking the application to subordinate officer does not satisfy the requirement of section 5(4) of the RTI Act. There should be an express and material communication from the CPIO to the officer, whose assistance is being sought for not present in the records.

8. In view of the above, the Commission finds that there was no reasonable cause preventing Shri Anuj Sharma, the then CPIO to furnish the information to the Appellant within the time specified in sub section (1) of section 7 of the RTI Act, and therefore holds him responsible for delay of 46 days (from 03.08.2012 to 17.09.2012) caused in the present matter. The Commission thus, by the power vested in it 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, hereby imposes a penalty of Rs. 11,500/( Rupees Eleven Thousand five hundred) only on Shri Anuj Sharma, the then CPIO and Director (I&C), Ministry of Home Affairs, New Delhi for causing the delay of 46 days in providing the information to the Appellant without any reasonable cause.

9. The head of the public authority viz., Secretary, Ministry of Home Affairs is accordingly hereby directed to recover the above amount of penalty (of Rs. 11,500/) in five monthly installments, starting from February, 2014, from the pay bills of Shri Anuj Sharma, the then CPIO and Director (I&C), Ministry of Home Affairs, New Delhi, and remit the same to the Commission by way of Demand Draft in favour of PAO, CAT, New Delhi. The first installment of penalty should reach the Commission by or before 15th February, 2014.

(Sushma Singh)

Information Commissioner

Citation: Hemant Kumar Singh v. Ministry of Home Affairs in Case No. CIC/SS/A/2012/003865