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.

CENTRAL INFORMATION COMMISSION

Decision No. CIC/SG/A/2010/002810/10280Penalty

https://ciconline.nic.in/cic_decisions/CIC_SG_A_2010_002810_10280Penalty_T_49401.pdf

Appeal No. CIC/SG/A/2010/002810

Appellant                                            : JN Kapur,

                                                            New Délhi-110027

Respondent                                       : (1) VR Bansal

                                                            Public Information Officer & SE-I

                                                            Municipal Corporation of Delhi, West Zone

                                                            Community Centre, Vishal Enclave,

                                                            New Delhi-110027

                                                            (2) KD Sharma

                                                            Deemed PIO & AE (B),

                                                            Central Zone,

                                                            Municipal Corporation of Delhi,

                                                            Zonal Office Building,

                                                            O/o EE(B), Central Zone,

                                                            Lajpat Nagar, Delhi;

                                                            (3) AK Gupta AE (WZ)

                                                            Municipal Corporation of Delhi, West Zone

                                                            Community Centre, Vishal Enclave,

                                                            Rajouri Garden,

                                                            New Delhi-110027

                                                            (4) TC Meena, JE (WZ);

                                                            Municipal Corporation of Delhi, West Zone

                                                            Community Centre, Vishal Enclave,

                                                            Rajouri Garden,

                                                            New Delhi-110027