Moneylife: New Delhi: Tuesday,
July 30, 2013.
The PIO of
Bank of Maharashtra did not comply with the CIC orders and instead requested
the Commission to review its order. This is the 143rd 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 allowing an appeal, directed the Public
Information Officer (PIO) and assistant general manager (AGM) for vigilance at
Bank of Maharashtra (BoM) to pay a penalty of Rs17,000 for the delay of 68-days
in providing the information after the order from the CIC.
While giving
this judgement on 4 April 2012, Shailesh Gandhi, the then Central Information
Commissioner said, “The Commission does not consider defiance of its orders as
a legitimate exercise by a PIO. By sending a letter to the Commission asking
for review the PIO cannot escape the consequences of not following its order.”
Ghaziabad
(Uttar Pradesh) resident Vivek Sheel, on 18 April 2011, sought information
about vigilance case no. F-833, which appeared in Annual Report of CVO of Bank
of Maharashtra for year 2009. Here is the information he sought under the Right
to Information (RTI) Act...
1.
Whether
this case was registered for any one series of incidence or more than one
incidence of different nature occurred in different time period. Please provide
the details, such as name of the
branch in which incidence/s occurred, date/period of occurrence of incidence/s,
details of reporting of incidence/s to vigilance department, and amount of Loss
incurred by the bank In each of the incidences.
2.
Incidence/s
of information (i), which incidence/s classified as fraud
3.
Whether
the incidence/s of this case reported to RBI, if yes, please provide the date
of reporting along with copy of all such report/s submitted to RBI.
4.
Whether
FIR Lodged for incidence/s of this case, if yes please provide incidence-wise
details, such as, date of FIR, FIR No., name of police station, person/s named
in the FIR.
5.
Please
inform name of all the employees suspended In this case and provide Incidence-wise
name of employees and nature of charges against them.
6.
Please
inform name of all the employees issued show-cause notice In this case with
specific reference of each incidence of this case.
7.
Please
inform name of all the employees issued charge sheet in this case and provide
the details, such as, name of employees, nature of charges (such as procedure
lapses, negligence in duty and/or direct involvement in the incidence) against
them and each charge relates to which incidence/s.
8.
(The
Point no. viii and ix were not readable.-CIC)
9.
What
is the present position of this case; whether it is closed or not? If not
closed, please give incidence-wise details of present status.
10. If the status of this case is closed,
please provide the copy of investigation reports for alt the investigation done
in this case.
11. Whether any amount is recovered in
this case, if yes, please provide the details of amount a source of recovery.
12. Whether any employee suspended in this
case had furnished any Fixed Deposit before revocation of suspension? If yes,
what is the name of that employee and whether any recovery has been made from
that fixed deposit to make good the loss incurred by the bank in this case? If
no recovery has been made, then what Is status of that fixed deposit as on
date?
In her reply,
the PIO stated, "...information sought by you in respect of vigilance Case
NoF-833 relates to the personal information and bank account of another person,
disclosure of which has no relationship to any public activity or interest or
which would cause unwarranted invasion of the privacy of the individual.
Moreover, the information sought by you is of confidential in nature. Hence, we
cannot provide the information sought by you."
Not satisfied
with the PIO's reply, Sheel, the applicant, filed his first appeal. In his
order, the First Appellate Authority (FAA) stated, "In this regard, we
would like to inform you that information sought by you in respect of vigilance
Case No: F-833 relates to the personal information and bank account of another
person, disclosure of which has no relationship to any public activity or
interest or which would cause unwarranted invasion of the privacy of the
individual. Moreover the information sought by you is of confidential in
nature. Hence we cannot provide the information sought by you".
Sheel then
approached the CIC with his second appeal.
During the
hearing, Mr Gandhi, the then CIC noted that the appellant was seeking
information about a vigilance case which was reported in the Annual Report of
the Bank and the PIO has claimed exemption under Section 8(1)(j) of the RTI
Act.
The PIO
stated that that disclosing the information would disclose the Bank accounts of
some other customers of the Bank which is held in the fiduciary relationship by
the Bank. The PIO also stated that a police investigation is ongoing and hence
disclosing the information may affect the investigation. The information which
is being sought by the appellant is of many incidents which occurred during the
period 2003 and 2005, Mr Gandhi noted.
Under Section
8 (1) (j) information which has been exempted is defined as:
"information
which relates to personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual unless the Central Public
Information Officer or the State Public Information Officer or the appellate
authority, as the case may be, is satisfied that the larger public interest
justifies the disclosure of such information:"
Mr Gandhi
said that to qualify for this exemption the information must be personal
information, which applies to an individual and not to an institution or a
corporate. Hence Section 8 (1) (j) cannot be applied when the information
concerns institutions, organisations or corporates, the CIC said.
The phrase
'disclosure of which has no relationship to any public activity or interest'
means that the information must have been given in the course of a public
activity. There will only be a few exceptions to this rule, which might relate
to information, which is obtained by a Public authority while using
extraordinary powers such as in the case of a raid or phone tapping.
Mr Gandhi
said, "The Commission does not accept the plea that the information sought
by the Appellant can be considered as an intrusion of the privacy of an
individual. Hence the Commission does not accept the plea of exemption under
Section 8(1)(j)."
He said that
the PIO also was not been able to show or justify how revealing the information
could impede the process of investigation. "From her admission, the
incidents occurred in 2003 and 2005 and if an investigation is carried on for
decades, this cannot be a ground to refuse the information. The Commission therefore does not accept the
claim for exemption under Section 8(1)(h)," the CIC said.
"As
regards the claim of the PIO that information also refers to certain bank
accounts of customers," Mr Gandhi said, "the Commission accepts the
argument that this information is held in fiduciary capacity and hence is
exempt under Section 8(1)(e) of the RTI Act. The Commission therefore directs
that information relating to the Bank Customer's accounts names and amounts may
be severed as per the provisions of Section-10 of the RTI Act."
While
allowing the appeal, the Bench on 23 December 2011 directed the PIO to provide
the information sought by Sheel, the appellant, after severing account numbers
and names of bank customers before 10 January 2012.
The
Commission received a representation from BK Piparaiya, GM for credit, IB,
Alternate of GM Planning and CPIO of BoM again claiming exemption under Section
8(1)(h) of the RTI Act requesting for reconsideration of the Commission's
order. Subsequently the Commission also received a letter dated 25 January 2012
from the appellant alleging non-compliance of the Commission's order.
Mr Gandhi
then issued a show cause notice to the PIO, the CPIO and directed them to
present themselves with a written explanation to show cause why penalty should
not be imposed and disciplinary action not be recommended against them for
defying the orders of the commission and failing to comply with the provisions
of RTI Act, 2005.
During the
hearing on 4 April 2012, Mr Gandhi, noted that the Bench had given its order on
23 December 2012 to the PIO Mugdha Satarkar, who was present through video
conferencing. The PIO stated that she had to collect the information from
various departments to provide it, which was time consuming and hence she could
not comply with the CIC orders.
Mr Gandhi,
said, when the Bench gave its order, the PIO made no representation that the
time given was inadequate. "It is clear that it was assumed that the order
need not be implemented and hence a letter was sent on 10 January 2012 by
General Manager (Credit & IB) BK Piparaiya asking the Commission to review
its earlier decision and giving reasons why the Commission's order should not
be obeyed," he said.
It added,
"Once a statutory order is given all citizens have to obey or obtain a
stay on such order by the manner prescribed in law. The order of the Commission
is a statutory order and the only relief available is a writ before the
appropriate forum."
"(the)
PIO states that the information was sent to the Appellant now on 20 March 2012.
She has sent written submissions to the Commission on 26 March 2012 explaining
that the information had been sent to the appellant and requesting the
Commission to condone the delay," the Bench noted.
Mr Gandhi
said, "The Commission does not consider defiance of its orders as a
legitimate exercise by a PIO. By sending a letter to the Commission, asking for
review the PIO cannot escape the consequences of not following its order. It is
evident that the information was sent only after receiving the show cause
notice of the Commission which was sent on 23 February 2012."
"The
information should have been provided to the Appellant as per the order of the
Commission before 10 January 2012. Instead, it was provided to the Appellant
only on 20 March 2012, after a delay of 68 days. Since no reasonable cause has
been offered for the delay of 68 days in providing the information to the
Appellant as per the order of the CIC, the Bench is imposing the penalty on Mrs
Mugdha Satarkar, PIO & AGM (Vig) under Section 20(1) of the RTI Act at the
rate of Rs250 per day of delay of 68 days that comes to Rs17,000," Mr
Gandhi said in his order.
The CIC
directed the chairman and managing director of Bank of Maharashtra, to recover
the amount Rs17,000 from the salary of Mrs Mugdha Satarkar at the rate of
Rs4,250 every month and remit the whole amount to the Commission before 10
August 2012.
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