Full Text
HIGH COURT OF DELHI
Date of Decision: 22nd January, 2021
SH RAKESH KUMAR GUPTA (ERSTWHILE CPIO) UNION BANK OF INDIA & ORS. ..... Petitioners
Through: Mr. O.P. Gaggar, Advocate. (M:
9810185751)
Through: Mr. Gaurang Kanth, Standing Counsel with Mr. Aman Singh
Bakhshi, Advocate. (M: 9810810005)
JUDGMENT
1. This hearing has been done through video conferencing.
2. The present petition has been filed by two officers, who were working with the Union Bank of India as Central Public Information Officers (hereinafter, “CPIO), as also the Union Bank itself, challenging the impugned order dated 14th December, 2020 passed by the Information Commissioner, Central Information Commission (hereinafter, “CIC”), vide which, penalties amounting to Rs. 10,000/- each have been imposed upon the Petitioners.
3. The background of this case is that an RTI application was filed on 9th January, 2018, by the Applicant/Respondent No.2 (hereinafter, “Applicant”) who was a Chief Manager at the Union Bank of India, seeking the following information: “In this connection I request you to furnish me details of the Board approval along with justification for giving exemption with regard to 3 years branch head 2021:DHC:260 service (which was declared vide staff circular no: 6511 dated 23.12.2016).”
4. In reply to the said RTI application, the office of the CPIO informed the Applicant that copy of the board note, being an internal document of commercial confidence and hence exempted from disclosure, cannot be furnished. The relevant extract of the said response reads as under:- “In this connection, we have to inform you that being a staff member, you are well aware of the guidelines of the Bank issued from time to time which are easily available in UBINET, Bank’s internal web portal. However, we may inform you that matter regarding completion of three years as Branch Head as eligibility criteria is clarified in Staff Circular NO. 6685 dated 30.10.2017. Please note that copy of Board note cannot be furnished as the same is internal documents of the Bank and of commercial confidence which is exempted from disclosure under s. 8(1)(d) of the RTI Act. However, guidelines of the Bank in above matter, based on the Board approval, is circulated vide above Staff Circular.”
5. The Applicant thereafter filed an appeal with the Appellate Authority under the RTI Act. The said Appellate Authority also disposed of the appeal stating that copy of the board approval was exempted from being disclosed under Section 8(1)(d) of the RTI Act. The relevant extract of the order by the Appellate Authority, reads as under:-
6. The Applicant, thereafter, filed a second appeal before the Information Commissioner, CIC. The CIC, vide order dated 29th January, 2020, after examining the responses provided, found that there was no reason why complete information was not provided to the Applicant, and held that the responses provided were rather incomplete and evasive. A showcause notice was then issued to the CPIOs of the Bank at the relevant point in time, as to why penalty should not be imposed on them for not providing complete information to the Applicant. The relevant portion of the said order reads:
7. This was reiterated by Petitioner No. 2 on 29th February, 2020 in the following manner:- SI Information sought Reply 1 Details of the Board approval along with justification for giving exemption with regard to 3 years Branch Head service, declared vide Staff Circular No. 6511 dated 23.12.2016. In this respect, HRD, Central Office has informed that as per direction of Hon’ble CIC, they have searched the records but the desired information could not be found from the available records. Hence, they plead their inability to provide the desired information.
8. In view of this complete change in stand by the Petitioners, the CIC vide final order dated 14th December, 2020, imposed penalty of Rs.10,000/each, on both the CPIOs. The relevant portion of the CIC order reads as under:-
9. Mr. Gaggar, ld. counsel appearing for the Petitioners, submits that the board notes were not available in the records and under such circumstances, the said CPIOs cannot be held responsible for not furnishing information. It is his submission that even when the matter was before the CIC, the CPIO made an effort to trace and provide the said documents, however the same were not traceable. Accordingly, in his submission, individual officers of the Bank cannot be blamed for the same.
10. Mr. Gaurang Kanth, ld. counsel appearing for the CIC, submits that there was a complete change in the stand of the Petitioners, from the initial position as against the position upon the issuance of the showcause notice by the CIC. According to him, initially, a defence was taken that the documents cannot be disclosed in view of Section 8(1)(d) of the RTI Act, however thereafter, a completely unrelated ground, that the documents were not traceable, was taken. Thus, in his submission, the penalty of Rs. 10,000/which has been imposed upon the CPIOs is completely justified.
11. Heard ld. counsels for the parties. The ld. Division bench of this court in R.K Jain v. Union of India (LPA 369/2018, decided on 29th August,
2019) has recognised that the CPIO, being the custodian of information or documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information, and in cases of default, the penal action is to be invoked against the CPIO only.
12. The role of CPIOs under the RTI Act has been elaborately dealt with in Registrar of Companies v. Dharmendra Kumar Garg (WP(C) 11271/2009, decided on 1st June, 2012). The court has held that: “Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a show-cause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to fulfill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in and may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute.”
13. Thereafter, in Union of India v. Vishwas Bhamburkar (WP(C) 3660/2012, decided on 13th September, 2013), it was held: “It is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever an information is sought and it is not readily available, a thorough attempt needs to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired information. Even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of the record. Unless such a course of action is adopted, it would be possible for any department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act.
7. Since the Commission has the power to direct disclosure of information provided, it is not exempted from such disclosure, it would also have the jurisdiction to direct an inquiry into the matter wherever it is claimed by the PIO/CPIO that the information sought by the applicant is not traceable/readily traceable/currently traceable. Even in a case where the PIO/CPIO takes a plea that the information sought by the applicant was never available with the government but, the Commission on the basis of the material available to it forms a prima facie opinion that the said information was in fact available with the government, it would be justified in directing an inquiry by a responsible officer of the department/office concerned, to again look into the matter rather deeply and verify whether such an information was actually available in the records of the government at some point of time or not. After all, it is quite possible that the required information may be located if a thorough search is made in which event, it could be possible to supply it to the applicant. Fear of disciplinary action, against the person responsible for loss of the information, will also work as a deterrence against the willful suppression of the information, by vested interests. It would also be open to the Commission, to make an inquiry itself instead of directing an inquiry by the department/office concerned. Whether in a particular case, an inquiry ought to be made by the Commission or by the officer of the department/office concerned is a matter to be decided by the Commission in the facts and circumstances of each such case.”
14. In J.P. Agrawal v. Union of India (WP(C) 7232/2009, decided on 4th August, 2011) the ld. Single Judge has recognised that CPIOs/PIOs are not merely “post offices” and have a crucial responsibility in facilitating the purpose of the RTI Act. The court has held that:
15. On the basis of the above judgments, the following principles can be clearly gleaned: i) CPIO/PIOs cannot withhold information without reasonable cause; ii) A PIO/CPIO cannot be held responsible if they have genuinely rejected the information sought on valid grounds permissible under the Act. Mere difference of opinion on the part of CIC cannot lead to an imposition of penalty under section 20 of the RTI Act; iii) Government departments ought not to be permitted to evade disclosure of information. Diligence has to be exercised by the said departments, by conducting a thorough search and enquiry, before concluding that the information is not available or traceable; iv) Every effort should be made to locate information, and the fear of disciplinary action would work as a deterrent against suppression of information for vested interests; v) PIO/CPIO cannot function merely as “post offices” but instead are responsible to ensure that the information sought under the RTI Act is provided; vi) A PIO/CPIO has to apply their mind, analyze the material, and then direct disclosure or give reasons for non-disclosure. The PIO cannot rely upon subordinate officers; vii) Duty of compliance lies upon the PIO/CPIO. The exercise of power by the PIO/CPIO has to be with objectivity and seriousness the PIO/CPIO cannot be casual in their approach. viii) Information cannot be refused without reasonable cause.
16. Thus, under the RTI Act, the CPIOs have a solemn responsibility. Section 5(3) requires that every CPIO or SPIO shall deal with requests for information and `render reasonable assistance’ to the persons seeking information. CPIOs or SPIOs can seek assistance from higher/other officials in the organisation in order to enable them to furnish the information sought for the `proper discharge’ of their duties, as per Section 5(4). Such other officers from whom assistance may be sought would also be treated as CPIOs, under Section 5(5). CPIOs are thus expected to look into queries raised by the Applicants under the RTI Act, and fulfil an important responsibility while furnishing the said required information, in a fair, nonarbitrary and truthful manner. The organisation, as a whole, also has to cooperate in the functioning of the CPIOs.
17. In the present case, the CPIO initially took a stand that the documents and the information are not liable to be disclosed as the same are exempted under section 8(1)(d) of the RTI Act, due to them being of commercial confidence for the Bank. However, when the CIC served them with a showcause notice, there was a complete change in their position and they stated that the required documents were not traceable. This clearly does not hold well for the Bank or the CPIOs or even for the Applicant. Such a change in stand would go on to show that there was an intention to withhold certain important documents or information, leading to the finding of mala fides and unreasonable conduct. It is under these circumstances that the CIC has held the CPIOs responsible and imposed a penalty amounting to Rs. 10,000/- each. In the opinion of this Court, the impugned order passed by the CIC does not warrant any interference.
18. Considering the overall facts, this Court is of the opinion that the penalty imposed cannot be faulted with. However, considering the fact that both the CPIOs have since retired from the service of the Bank, the penalty is reduced to Rs.5,000/- each. The same shall be forwarded in the manner as contained in paragraph 6.[1] of the order dated 14th December, 2020 passed by the CIC, as extracted above. The said payments shall be deposited within 6 weeks from today.
19. The present petition and all pending applications are disposed of in the above terms.
PRATHIBA M. SINGH JUDGE JANUARY 22, 2021 MR/Ak (corrected and uploaded on 27th January, 2021)