Moneylife: Pune: Friday, May 03, 2013.
Despite three
orders from the FAA, the PIO refused to provide information sought by a senior
citizen. However, the CIC, seeing this as a very rare case where the appellant
was harassed by the obduracy and obfuscation of authorities, fined all four
officers responsible. This is the 83rd in a series of important judgements
given by former Central Information Commissioner Shailesh Gandhi that can be
used or quoted in an RTI application
The Central
Information Commission (CIC) while giving a compensation or Rs5,000 to the
appellant also levied a fine of Rs25,000 each on the Public Information Officer
(PIO) and three other officials from the Municipal Corporation Of Delhi (MCD)
for not furnishing the information despite three orders from the First
Appellate Authority (FAA).
While giving
this judgement on 5 January 2011, Shailesh Gandhi, the then Central Information
Commissioner said, “The Commission sees this as a matter where at least four
officers are responsible for the absurd delay in providing the correct information
to the appellant. There is no reasonable cause which has been offered by any of
the officers for this inordinate delay. All the officers are responsible
individually for the delay of over 100 days each.”
New Delhi
resident JN Kapur, on 4 March 2009, sought information under the Right to
Information (RTI) Act from the Public Information Officer (PIO) and SE-I at
West Zone of Municipal Corporation Of Delhi. Here is the information he
sought...
1.
Mansarovar
Garden Club was a public social utility organization. What were the specific
recorded reasons for demolishing the said Club premises and taking over the
possession of the Club land?
2.
How
many times the Club premises were demolished and reconstructed.
3.
The
date of each demolition be informed.
4.
How
many notices for unauthorized construction of the Club date-wise details be
given in this regard & copies of the relative notices be provided.
5.
Official
reasons as per records be given to me for not taking over the possession of
Club land earlier and before construction of the Club premises.
6.
Was
there any political pressure to allow unauthorized construction of the Club?
Any letters received from the politicians in this regard, the copies thereof be
supplied.
7.
Was
the said land of Club already acquired an favour of the MC D? If so, whether
any compensation was paid to the Club?
8.
Copies
of the full file of this case be provided.
However, the
PIO did not respond. Kapur, then filed his first appeal. In his order, the
First Appellate Authority (FAA) stated, “The case was taken up on 7 October
2009. The PIO, SE-I was present. The appellant has complained vide his appeal
that no information has been received by him in respect of his application
dated 4 March 2009 sent under the RTI Act, 2005. The SE-I has been directed to
send the reply within a period of 10 days.”
Despite the
order from the FAA, the PIO did not provide any information. Kapur then filed a
complaint with the FAA. In his order on 29 April 2010, the FAA said, “JN Kapur
has filed a complaint for non-compliance of the order of the First Appellate
Authority passed in Appeal No456 on 8 October 2009. SE-I is hereby directed to
comply with the order dated 8 October 2009 and send the report in this regard
to the First Appellate Authority within three days positively.”
However, the
PIO again failed to provide the information. The FAA, then issued an order on
11 June 2010 which stated, “The SE-I is hereby directed to comply with the
directions of the FAA given in the appeal No. 456 within seven days’ time under
intimation to the undersigned. THIS MAY BE TREATED AS ‘FINAL OPPORTUNITY’.”
Despite
passing three orders by the FAA, the CPIO did not furnish the required
information to Kapur. He then approached the Commission with his second appeal.
During the
hearing, the VR Bansal, the PIO and SE-I stated that there was no booking of
unauthorized construction in respect of Mansarovar Club in the office at all.
This information was handed over to the appellant before the Commission.
Mr Gandhi,
the then CIC, stated that “The Commission is amazed at the defiance of the
FAA’s order by the PIO on three occasions. The PIO was able to offer no
rational explanation but only stated that there was no mention of Mansarovar
Club on the records. It was beyond the realm of logical thinking to understand
why the PIO could not have informed the appellant about this earlier.”
“This
Commission has dealt with more than ten thousand matters in the last two years
but this is the first time it has come across an instance where a PIO defiantly
refuses to implement the order of the FAA on three occasions,” he said.
Kapur, a
senior citizen filed three first appeals and is pursuing this matter since
March 2009. “This harassment of a common citizen displays complete lack of
sensitivity in the PIO. In the reply given to the appellant before the
Commission the PIO has the audacity of informing the appellant that query - 1,
5, 7 and 8 do not pertain to his department. Even after 20 months the PIO does not
have the courtesy of obtaining the information from whichever department has
the information and providing it to the appellant,” Mr Gandhi said.
Kapur also
claimed that after he had filed the second appeal before the Commission he had
received the threats on telephone asking him not to pursue the matter. The
Commission said it expects that the MCD will take adequate steps to see that
the appellant comes to no harm.
Seeing this
as a case where Kapur (appellant) was harassed by the obduracy and obfuscation
of the PIO of a very rare kind, the Commission using its power under Section
19(8)(b) directed the PIO to pay a compensation of Rs5,000 to the appellant for
the loss and detriment suffered by him and for the harassment caused to him.
While
allowing the appeal, the CIC ordered Bansal, the PIO, to personally ensure that
the information on all queries is sent to Kapur before 25 December 2010 and
also ensure that a cheque of Rs5,000 is sent to the appellant before 15 January
2011.
From the
facts before the Commission it is apparent that the PIO was guilty of not
furnishing information within the time specified under sub-section (1) of
Section 7 by not replying within 30 days, as per the requirement of the RTI
Act. He had further refused to obey the orders of his superior officer, which
raised a reasonable doubt that the denial of information may also be malafide,
Mr Gandhi noted.
The
Commission then issued a show-cause notice to the PIO and asked him to submit
reasons as to why penalty should not be levied on him.
“It also
appears that they (PIO) persistently refused to give the information in spite
of repeated reminders to the respondent hence the Commission is also
considering recommending disciplinary actions under Section 20(2) against
them,” the CIC said.
During the
hearing on the show-cause notice on 5 January 2011, the PIO stated that as per
the order of the Commission, he had provided information to Kapur. Kapur said
he would like to inspect relevant records on 18 January 2011 and if required
then on 19th January as well. The CIC directed the PIO to give attested
photocopies of records free of cost up to 200 pages, which Kapur wanted.
Bansal, the
PIO, informed the Commission that he had also asked other officials who were
involved in the matter to be present for the hearing. Vinay Kumar (EE-B) stated
that he gave a letter to AK Gupta (AE-B-I) asking him to present before the
Commission. Kumar stated that Gupta recognised that he was likely to be
penalised since he was responsible for the delay, and hence decided not to
present at the show cause hearing.
The PIO,
Bansal stated that he had sought assistance of KD Sharma the then AE (West
Zone) through the Executive Engineer on 18 March 2009, who took no action on
the RTI application. When the matter came up before the FAA on 7 October 2009,
the PIO sought assistance of AK Gupta AE (B) -I (West Zone) through the
Executive Engineer. However, Gupta also did not provide any information and
kept the RTI application with him. After the second reminder of the FAA, the
PIO sought assistance of TC Meena on 3 August 2010 through the Executive
Engineer. Meena responded to it on 1 December 2010, Bansal said.
Mr Gandhi
noted that this was a matter where at least four officers were responsible for
the absurd delay in providing the correct information to the appellant. The
Commission identified the fact that KD Sharma, the then AE (West Zone), AK
Gupta, present AE (WZ), TC Meena, JE (West Zone) and VR Bansal, PIO & SE-I
(WZ) were all responsible for not providing the information to the appellant
within the prescribed time. “There is no reasonable cause, which has been offered
by any of the officers for this inordinate delay. All the officers are
responsible individually for the delay of over 100 days each,” Mr Gandhi said.
The
Commission noted, "The PIO, Bansal had an administrative responsibility
under the RTI Act to provide the correct and complete information in a timely
manner. But he failed to discharge this legal obligation placed upon him under
the RTI Act despite receiving three orders from the FAA. If a senior officer
who holds the position of a PIO is not sensitive to the continuous failure of
his subordinate officers from whom he seeks assistance, it would be considered
completely inexcusable and would tantamount to a dereliction of his
duties."
During the
hearing, Meena raised the issue of why Kapur (the appellant) was seeking this
information. Mr Gandhi said, it was pertinent to mention that as per Section 3
of the RTI Act, every citizen has a right to seek information and it is
inexcusable that a citizen has to pursue various officers, FAA and the
Commission to get information, which is his fundamental right.
Section 20(1)
of the RTI Act states as follows:
“ 20.
Penalties.- (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.”
Section 20(1)
of the RTI Act mandates the Commission to impose a penalty on the PIO where he
has, without reasonable cause:
1)
Refused
to receive a RTI application;
2)
Not
furnished information within the time specified under Section 7(1) of the RTI
Act i.e. 30 days;
3)
Malafidely
denied the request for information or knowingly given incorrect, incomplete or
misleading information, or destroyed information, which was the subject of the
request;
4)
Obstructed
in any manner in furnishing the information.
At the time
of deciding an appeal or complaint, if there is a delay in providing the
complete information within the time stipulated under the RTI Act, the
Commission can ascertain whether there is a reasonable cause for such delay.
Where the Commission determines that there is no reasonable explanation for the
delay, it shall impose a penalty on the PIO in the manner prescribed under
Section 20(1) of the RTI Act i.e. Rs250 per day of delay till the RTI
application is received or the complete information is furnished, subject to a
maximum penalty of Rs25,000.
The burden of
proving that denial of information by the PIO was justified and reasonable is
clearly on the PIO as per Section 19(5) of the RTI Act which stipulates that,
“In any appeal proceedings, the onus to prove that a denial of a request was
justified shall be on the Central Public Information Officer or State Public
Information Officer, as the case may be, who denied the request”.
It has been
observed that officers in a public authority are transferred frequently and
hence, more than one officer would have held the post of PIO in relation to a
given appeal or complaint before the Commission. In other cases, PIO has to
seek the assistance under Section 5(4) of the RTI Act of more than one officer.
In such cases, if each officer has, without any reasonable cause, failed to
provide the complete information within the prescribed period, then he is
liable to be penalised under Section 20(1) of the RTI Act. Similarly, where
information sought in a RTI application pertains to different public
authorities, then more than one PIO will be involved in the matter. In such a
situation, it is likely that more than one PIO may fail to furnish the complete
information within the prescribed time.
In the
aforementioned scenarios, each officer who has, without reasonable cause,
defaulted in providing the information shall be liable to be penalised in
accordance with Section 20(1) of the RTI Act where the maximum penalty imposed
on each officer shall not exceed Rs25,000.
Mr Gandhi
said, in the instant case, no reasonable cause was given for the delay in
providing the information to the Appellant. In an order, he said, “The
Commission holds all four officers KD Sharma, the then AE (West Zone), AK Gupta,
present AE (WZ), TC Meena, JE (West Zone) and VR Bansal, PIO & SE-I (WZ)
responsible individually for the delay of over 100 days in providing the
information. Since the delay in providing the information by each of the
officer is for over 100 days the Commission imposes the maximum penalty under
Section 20(1) of the RTI Act for Rs25,000 on all the four officers. The
Commission however feels that action under Section 20(2) of the RTI Act may be
harsh and hence no disciplinary action is being recommended.”
Mr Gandhi
then directed the Commissioner of Municipal Corporation of Delhi recover
Rs25,000 each from the salaries of KD
Sharma, AK Gupta, TC Meena and VR Bansal. The amount may be deducted at Rs5,000
per month from the salary of each of the four officers, the CIC said.
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