Elementary principle of abiding by orders given by statutory authorities or Courts cannot be defied by anyone, including CBI, the CIC said, while imposing a penalty of Rs5,000 on the PIO. This is 169th 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 a complaint, imposed a penalty of Rs5,000 on the Public Information Officer (PIO) of the economic offences wing (EOW) at Central Bureau of Investigation (CBI), Chennai for failing to comply with the order from the Commission. The CIC had directed to provide information before 20 June 2011, however, the PIO obtained a stay on 13 July 2011.
While giving this judgement on 25 July 2011, Shailesh Gandhi, the then Central Information Commissioner said, "Just as citizens are expected to follow, government agencies and their officers are equally bound to abide by all orders which have the sanction of law. Since the PIO has failed to comply with the order of the Commission, without a valid stay, she is liable to be penalized under Section 20(1) of the Right to Information (RTI) Act for the period between 21 June 2011 and 12 July 2011."
New Delhi resident PC Srivastava, on 6 July 2010, filed a complaint before the CIC contending that the PIO of CBI has not yet supplied the information as per the Commission's order. On 26 May 2011, the CIC had passed an order in the matter of PC Srivastava vs. PIO and SP, EOW, CBI (Chennai) (CIC/SM/A/2011/000309/SG/12557) directing the PIO to provide the information as available on record on queries 5 and 6 to the Complainant before 20 June 2011.
Subsequently, the CIC received a letter dated 20 June 2011 from Srivastava alleging that no information had been furnished by the PIO till date. The CIC registered this letter as complaint in accordance with Section 18(1) of the RTI Act.
Mr Gandhi, the then CIC, said, "From the facts before the Bench, it appeared that the PIO had failed to comply with the order of the CIC dated 26 May 2011 and not provided the requisite information within the time limit specified therein. The denial on the PIO's part in providing the information amounted to wilful disobedience of the Commission's order and raised a reasonable doubt that the denial may be mala fide."
The Bench then decided to initiate an enquiry in the complaint under Section 12(2) of the RTI Act, and summoned the PIO to appear on 25 July 2011.
During the hearing on 25 July 2011, Mr Gandhi noted that Thenmoezhi, the PIO has neither responded to the summons issued by the CIC nor provided any explanation for not furnishing the information to Srivastava in accordance with the Commission's order.
However, Srivastava, the complainant, informed the Bench, that a stay has been obtained subsequently on the CIC order dated 26 May 2011 by CBI- the public authority from the High Court of Delhi on 13 July 2011 in (WP (C) 4810/2011). He also requested the Bench to levy a penalty on the PIO for not providing information by 20 June 2011 as per the CIC order.
Mr Gandhi said, "Since the CIC's order has been stayed by the High Court on 13 July 2011, no order can be issued as regards the disclosure of information. However, the Bench will consider the complainant's demand for a penalty to be imposed on the PIO."
Section 20 (1) of the RTI Act states:
"20. Penalties.- 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."
From a plain reading of Section 20(1) of the RTI Act, it appears that the CIC, at the time of deciding any complaint or appeal, must impose a penalty in the following circumstances:
1) Refusal to receive an application for information.
2) Not furnishing information within the time specified under Section 7(1) of the RTI Act.
3) Malafidely denying the request for information or knowingly giving incorrect, incomplete or misleading information or destroying information, which was the subject of the request.
4) Obstructing in any manner in furnishing the information.
All the above are prefaced by the phrase, "without reasonable cause".
"Therefore, Mr Gandhi said, "if complete information is not furnished without any reasonable cause, the Bench, at the time of deciding any complaint or appeal is duty bound to levy a penalty at the rate of Rs250 each day till the information is furnished."
This principle has been relied on by Justice Ravindra Bhat of the High Court of Delhi in Mujibur Rehman vs. CIC in (CWP 3845 of 2007 decided on 28/04/2009). Moreover, as per Section 20(1) of the RTI Act, the PIO shall have to discharge the burden of proving that he acted reasonably and diligently.
Mr Gandhi said, "In the instant case, the order of the CIC dated 26 May 2011 clearly stipulated the date i.e. 20 June 2011 within which the requisite information was required to be provided to the complainant. However, despite its clear order, the Bench noted that the PIO did not provide the information to the complainant within the said date. Stay on the CIC order was obtained only on 13 July 2011. Given the same, it prima facie appears that the PIO has flouted the order of the Commission and not provided the information from 21 June 2011 to 12 July 2011. No explanation whatsoever has been provided by the PIO for not complying with the order of the CIC. The PIO has also failed to respond to the summons issued by the CIC."
The PIO was required to comply with the order of the Bench, unless a stay has been obtained on such order within the time limit mentioned in the order. "In the present matter, the PIO has provided no reasons for disobeying the order of a statutory authority. It is pertinent to mention that departmental procedures and administrative hurdles or exigencies cannot be used as an excuse for disobeying the order of a statutory authority and consequently denying the citizen's fundamental right to information. At the very least the PIO should have approached the Bench before 20 June 2011 and requested for an extension in time giving reasons. However, the PIO neither approached the CIC nor appeared before the Bench on 25 July 2011. Moreover, no written explanations have been submitted by the PIO before the Bench," Mr Gandhi noted.
In this regard, he said, the Bench would like to place reliance on certain pronouncements of the Supreme Court of India. In Prithawi Nath Ram vs. State of Jharkhand & Ors (Appeal (Civil) No. 5024 of 2000), the apex court, in its judgement dated 24 August 2004 observed as follows:
"If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach to the Court that passed the order or invoke jurisdiction of the Appellate Court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible." (Emphasis added)
Further, in Prakash Narain Sharma vs. Burma Shell Cooperative Housing (AIR 2002 SC 3062), the Supreme Court has observed that a judicial order, not invalid on its face, must be given effect entailing all consequences, till it is declared void in a duly constituted judicial proceedings. Reliance may also be placed on the observations of Justice SN Variava, in Ghaziabad Development Authority vs Balbir Singh (2004-002- CPJ-0012-SC) case, wherein he stated, “…unless there is a stay obtained from a higher forum, the mere fact of filing an appeal or revision will not entitle a person who is required to pay the penalty to not comply with the order of the lower forum. Even though the person may have filed an appeal or revision, if no stay is obtained or if stay is refused, the order must be complied with. In such cases, the higher forum should, before entertaining such appeal or revision, ensure that the order of the lower forum is first complied with.”
Mr Gandhi said, "The law laid down by the Supreme Court, as described above, is the law of the land and must be abided by all. The CBI is not above this law and in the absence of a stay, should have complied with the order of the CIC. Just as citizens are expected to follow this, government agencies and their officers are equally bound to abide by all orders which have the sanction of law. Without this discipline, no rule of law can prevail. And if a police agency cannot follow this simple principle, it loses the moral authority to ask citizens to abide by its orders."
"The PIO's action is in clear violation of the principles laid down by the Supreme Court. Thenmoezhi, the PIO & SP, EOW, CBI (Chennai) has given no reasonable cause for not providing information for 20 days, before a valid stay was obtained on the Commission's order. Since no reasonable cause has been offered by the PIO for not providing the information from 21 June 2011 to 12 July 2011, i.e. for a period of 20 days, the Bench imposes a penalty on Thenmoezhi, the PIO, under Section 20(1) of the RTI Act at the rate of Rs250 per day of delay, i.e. 20X250 = Rs5,000," the Bench said.
The CIC also directed the director of CBI to recover Rs5,000 from the salary of Thenmoezhi, the PIO and remit the same to the CIC before 10 September 2011.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SM/C/2011/000782/SG/13656Penalty
Complaint No. CIC/SM/C/2011/000782/SG
Complainant : PC Srivastava,
Respondent : Thenmoezhi,
PIO & SP,
Economic Offences Wing,
Central Bureau of Investigation,
III Floor, A- Wing, Rajaji Bhawan,
Besant Nagar, Chennai- 600090
Having predicted the 2008 financial crash and been involved with the financial sector closely since then the RBI governor surely knows that the West has made consumer financial protection a centrepiece of financial sector regulation. How about setting the ball rolling in that direction in India too?
Raghuram Rajan has been garnering a lot of plaudits and praises for his first speech as governor of the Reserve Bank of India (RBI). However, he failed to mention one of the most important aspects of the banking system, or the entire financial system for that matter: consumer protection.
As a brilliant person who is well versed with the intricacies of finance and banking, he shot to fame when he predicted the financial crisis of 2008, when he knew that US consumers were hard sold cheap mortgages they couldn’t afford. Having realised this, the US government set up Consumer Finance Protection Bureau and the UK government had set up Financial Conduct Authority which will have the power to regulate all providers of financial across different sectors. Even in India Financial Sector Legislative Reforms Committee has suggested exactly the same approach of a special consumer protection agency.
However, it is surprising that he has not mentioned anything about consumer protection or mis-selling which mentioning that banks should expand freely. Mis-selling is far more rampant here than in the US because Indian regulators are often lax and ignorant about many issues plaguing consumers, from hard-selling third-party products to non-transparent banking charges and so on.
Moneylife Foundation has been batting for consumers over the years and has raised several issues on banking, consumer protection and safety of products. With over 23,000 members, it has stumbled upon a wide variety of cases of mis-selling, cheating, some of which are horrifying because they are targeted at senior citizens and women. Unfortunately, the spate of mis-selling over the years has caused Indian investors and savers to lose money and lose trust in the financial system.
If Raghuram Rajan is interested in batting for the Indian investor and saver, if he is interested in restoring the faith of the Indian banking system and get people to trust bankers and financial intermediaries again, then here are the list of issues he can look at, all of which Moneylife has written about over the years:
Mr Rajan may like to know that Banking Code and Standards Board of India was created to enforce ethical and consumer-friendly practices but the code is voluntary. Brilliant, innovative and energetic that he is, we believe that Mr Rajan will have some new thoughts on effective consumer protection in the banking sector too. We wonder when he will start articulating his thoughts in this direction.
There is a continued sense of concern over the near-term outlook on powergen and exports segments for Cummins India, according to Nomura Financial Advisory and
Securities in its research note on the company based on its meeting with Rajiv Batra, CFO, Cummins India. However, export realisations could lead to gains in margins on account of the depreciating rupee.
Nomura recommends investors to remain focused on the fundamentally superior business model and franchise that Cummins India offers with a solid long-term opportunity in a power-short India. Nomura had been waiting for a better entry point given its expensive valuations so far. The Cummins India has a ‘Neutral’ recommendation with a target price of Rs382.
In the long term, Nomura believes that India’s industrial sector offers the unfolding of a substantial opportunity in coming years. In particular, it sees potential opportunities in niche segments. Powergen is one of the best hi-tech niche segments.
The business forecast for Cummins India, according to Nomura analysts, is given below:
According to the CFO of the company, the overall economic slowdown is a big worry and that has led to the postponement of capex decisions, thus, hurting back-up power demand. A continued slowdown in capex decisions for industrial/ commercial projects could continue to hamper powergen growth beyond what is already visible, Nomura adds in its research note.
On the industrial segment, the Nomura research note mentions that the company had been doing well until now led by water well rigs (40% of the segment now) on the back of water scarcity last year. However, good monsoons this year could be a concern for the demand from this segment, in our view. Other bit of demand support for the segment continues from construction equipment original equipment manufacturers (OEMs) which are seeing increased offtake due to better export pricing.
On the exports side, according to Nomura, only 15% of the company’s exports in the high HP segment (2/3rd of all exports) are into the US, while Middle East, Europe/Russia and Africa contribute about 40% where demand is still declining. As such, hopes of a US recovery benefitting exports are misled, in Nomura’s view.
The CFO also expects that the replacement cycle of DG sets will elongate from the current 8-10 years to 10-15 years as the usage of gensets is decreasing following better power availability, concludes the Nomura research note.