Respondent: There was ambiguity between the information sought for by the appellant & the information available in the records - CIC: The respondent has provided the requisite information; Public authority is not under an obligation to create information

O R D E R

(02.01.2020)

1. A Show Cause Notice was issued to the CPIO, Oriental Bank of Commerce, Head Office, Gurgaon in compliance of the Commission’s order no. CIC/OBKOC/A/2017/146744 dated 04.01.2019 for not furnishing any reply /information to the appellant. The CPIO was directed to submit an explanation 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. The second appeal in F.No. CIC/OBKOC/A/2017/603483 dealing with identical issues was clubbed with CIC/OBKOC/A/2017/146744 as per Commission’s order dated 20.08.2019.

Hearing on 28.12.2018 in F. No. CIC/OBKOC/A/2017/146744:

2. The appellant Shri Rajesh Kumar Sharma attended the hearing through video conferencing. The respondents Shri Ashok Mishra, Deputy General Manager, and Mr. Ashutosh Singh, Senior Manager (Law), Oriental Bank of Commerce, Head Office, Gurgaon, were present in person.

Interim Decision (04.01.2019) in the above file:

3. The Commission passed the following directions on 04.01.2019:

“6. The Commission, after hearing the submissions of both parties and perusing the records observes that as per the appellant, the bank had accepted receipt and dispatch of the above-mentioned letters dated 16.04.2015 and 28.08.2015. The appellant had also submitted copies of certain documents in this regard. However, the respondent has denied the receipt /dispatch of these letters. Hence, it can be inferred that the submissions made by the CPIO may not be correct and complete. The Commission, therefore, directs the Registry of this Bench to issue a Show Cause Notice to the CPIO, Oriental Bank of Commerce, Head Office, Gurgaon 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.”

Hearing on 30.07.2019 in F.No.CIC/OBKOC/A/2017/603483:

4. The appellant remained absent and on behalf of the respondent Mr. Ashutosh Kumar Singh, Senior Manager (Law), Oriental Bank of Commerce, Gurgaon attended the hearing in person.

 4.1. The Commission passed the following directions on 20.08.2019 in this file:

“The Commission after adverting to the facts and circumstances of the case, hearing the respondent and perusal of records, feels that interest of justice would be served if the instant appeal is clubbed together with the file no. CIC/OBKOC/A/2017/146744. Accordingly, the Registry of this Bench is directed to club the instant matter/appeal with file no. CIC/OBKOC/A/2017/146744 and issue fresh notice to the parties concerned.”

Hearing on 25.09.2019:

4.2. The appellant attended the hearing through video conference and on behalf of the respondent Ashok Kumar Mishra, Deputy General Manager, Mrs. Poonam Kanwar, Assistant General Manager and Mr. Ashutosh Singh, Senior Manager (Law) attended the hearing in person.

4.3. The Commission passed the following directions on 01.10.2019:

“6. The Commission noting that the respondent has sought more time for furnishing written explanation in response to the show cause notice issued vide order dated 04.01.2019, gives a final opportunity to the CPIO, Oriental Bank of Commerce, Head Office, Gurgaon to explain as to why action under section 20 (1) of the RTI Act should not be initiated against him. All the written submissions must reach this Commission within 21 days. Accordingly, the matter is adjourned.”

Hearing on 19.12.2019:

5. The appellant and on behalf of the respondent Ms. Poonam Kanwar, Assistant General Manager and CPIO, and Mr. Asutosh Kumar Singh, Senior Manager (law) attended the hearing through video conference.

5.1. The appellant submitted that the respondent had not provided the correct information so far. The appellant stated that the respondent had given incorrect information and provided him the letter dated 16.04.2015 instead of letter dated 06.04.2015.

5.2. The respondent submitted that she had sent her written explanation vide letter dated 18.10.2019. The respondent explained that there was ambiguity between the information sought for by the appellant and the information available in the record of the information holding authority. Therefore, they could not furnish the information to the CPIO for onward submission to appellant. The respondent further explained that the impugned letter of Shri Mrityunjay Singh, Under Secretary, Vigilance Section, Department of Financial Services, Ref. No. F.No.1/14/2009/VIG/NR dt. 06.04.2015 had not been received by the Vigilance Department. However, the letter received from Shri Mrityunjay Singh was dated 16.04.2015. The reply was given on factual basis and there was no mala fide to provide incorrect or false documents. The respondent reiterated that information was given to the appellant and they could not create new information on the basis of demands of the appellant. The respondent Ms. Poonam Kanwar tendered unconditional apologies for acts/omissions, if any, which may have resulted in violation of provisions of RTI Act or non-compliance of any instruction/direction of the Commission.

6. The Commission after adverting to the facts and circumstances of the case, hearing both parties and perusal of records, feels that the respondent has provided the requisite information and the public authority is not under an obligation to create information which is not held by them. The respondent have taken the reference of the file number mentioned by the appellant in his RTI application and duly provided the letter sent by Shri Mrityunjay Singh. Further, the letter dated 28.08.2015 has also been furnished to the appellant and the same has been placed on the records of the Commission. The explanation submitted by the respondent is reasonable and there appears to be no mala fide on the part of the CPIO. Therefore, the show cause notice against Ms. Poonam Kanwar, CPIO, is hereby dropped.

Accordingly, the appeals are disposed of.

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

Sd/

(Suresh Chandra)

Information Commissioner

Citation: Shri Rajesh Kumar Sharma v. CPIO, Oriental Bank of Commerce in Second Appeal No. CIC/OBKOC/A/2017/603483 CIC/OBKOC/A/2017/146744, Date of decision: 02.01.2020