Full Text
W.P.rO No.6436/2016
JUDGMENT
Through: Mr. R.K. Saini, Advocate with petitioner in person.
Through; .Mr. Gautam Narayan, ASC with Ms. Mahamaya Chatterjee, Advocate for
GNCTD.
Background Facts;
L This writ petition is directed against-the^order of respondent no.l i.e. the Central Information Commission (hereafter referred to as "CIC").
1.1 The petitioner, evidently, is aggrieved by the, impugned order dated
18.06.2015, passed by the CIC and, therefore, seeks a direction from this
Court to set aside the same, albeit, with exemplary cost.
1.2 A further relief is sought by the petitioner, which is, that the CIC should be directed to adjudicate upon the complaint filed with it in consonance with the provisions ofsection 18(3) ofthe Right to Information
Act, 2005 (in short "RTI Act").
W.P.(C) No.6436/2016 2018:DHC:8504
2. Briefly, the backdrop, inwhich, the instant writ petition has been filed is as follows: - 2.[1] The petitioner had filed, on 22.09.2014, an application under Section 6 of the RTI Act with regard to the grant released by DAVSS Jangpura, New Delhi, in favour of, one, Mr. Dharmendra Kumar, TGT(Maths). 2.[2] The period for which this information was sought spanned between 1994 to 2007. Furthermore, names of persons who had directed the release of the grant, whether in the Managing Committee or otherwise was also sought. 2.[3] It appears thatthis application, filed bythepetitioner, with theDeputy Director of Education (South East) (in short "DDE") was transferred to another zone in exercise of powers conferred under Section 6(3) of the RTI Act. 2.[4] The information, though, with regardto the sarne was furnished to the petitioner bytheDDE (South East) vide edmmunieation dated 03.11.2014. 2.[5] The petitioner, being aggrieved,,prefeiieid artf^^ under Section 19 of the RTI Act. This appeal was filed on 14.11.2014. The First Appellate Authority ("FAA") heard the appeal on 12.12.2014. The FAA rendered its decision on 18.12.2014. By virtue of this ofder, a direction was issued to the Public Information Officer (PIO), DDE (South East) to provide to the petitioner the relevant information within a period of 10 days. 2.[6] It is the case of the respondents that the concerned authorities had addressed a communication dated 27.02.2015 to the petitioner, under intimation to the DDE (South East) (i.e. respondent no.2 herein) that a reply to the petitioner's RTI application was sent to him under the cover of letter W.P.(C)No.6436/2016 dated 11.11.2014, which was, returned to it by the postal department without furnishing any reason. 2.[7] The record shows that on 11.03.2015 the petitioner lodged a complaint under Section 18 as against an appeal with CIC under Section 19 of the RTI Act. The burden of the complaint was that the penalty proceedings should be initiated against DDE (South East)/ respondent no.2 for failure to disclose the relevant infomiation. 2.[8] The CIC issued notice in the complaint on' 01.06.2015 with a direction to the petitioner to appear before it on 16.06.2015. A perusal of the notice would show that the complaint made to the CIC was, inadvertently, treated as a second appeal. 2.[9] In order to set the record right, the petitioner filed an application dated 10.06.2015. Furthermore, on 15.06.2016, the petitioner filed a reply in response to the notice dated 01.06.2015, issued by the CIC, which, in effect, was an additional submission niade on behalf of the petitioner in support ofhis complaint. The matter, it appears, was placed before the CIC on 16.06.2015, when, a reply filed qua the application preferred by the petitioner was handed over tohis representative, one, Ms. Kasturi Sharma.
3. The matter, thereafter, was taken up by the CIC on 18.06.2015. On the said date, upon the CIC noticing that the requisite information had been ftimished, decided to close the complaint. In the operative portion of its order the CIC recorded as follows: - "Decision:
3. Both the parties made their submissions. The respondent authority has presented thepapers containing information to the complainant during W.P.(C)No.6436/2016 Page 3of14 hearing. As the Complainant is satisfied with the same, the Commission closes the complaint.'" 3.[1] A perusal ofthe operative portion would show that having received the information, the petitioner indicated to the CIC that he was satisfied and, accordingly, thecomplaint was ordered to beclosed. 3.[2] The petitioner, however, has chosen to agitate the matter further by instituting the present writ petition. Submissions of Counsel;
4. Mr. R.K. Saini, advanced submissions in support of the petitioner's case, while Mr. Gautam Narayan, additional standing counsel, assisted by Ms. Mahamaya Chatterjee, Advocate, appeared on behalf of respondent nos.[2] to 4. 4.[1] Mr. Saini submitted that there had been an enormous delay in submitting information to the petitioner. It was contended that, when, the petitioner's application was transferred.from.one departs to another, on 03.11.2014, there was a delay of 14 days, thovighi;,th^transfer should have taken place, ifat all, within a maximum period of5days as provided in the proviso to Section 6(3) of the RTI Act. 4.[2] Learned counsel further submitted that evenwhen.the FAAvide order dated 18.12.2014, directed that the information sought, was to be supplied within 10 days the needful was not done within the time frame stipulated therein. 4.[3] The emphasis of the learned counsel was, that, since a complaint under Section 18 of the RTI Act had been filed, the CIC could not have closed the complaint just because information had been supplied as the W.P.(C)No.6436/2016 Page 4of14 relief sought for by the petitioner, in effect, was that the PIO, DDE (South East) should be penalised under Section 20(1) of the RTI Act after a decision was taken inthat behalf inappropriate penalty proceedings. 4.[4] It was submitted that the very nature of the complaint would show that the petitioner was not satisfied with its closure as was noted in the operative part of the impugned order vis-a-vis the relief sought, though he may have been satisfied in respect ofthe information received. 4.[5] In support ofhis submission, Mr. Saini relied upon the judgment of the Supreme Court in ChiefInformation Commissioner v. State ofManipur, AIR 2012 SC 864 as also the judgment ofa Single Judge ofthis Court dated 28.10.2013, passed in W.P.(C) No.6755/2012, titled: J.K. Mittal vs. Chief Information Commissioner and Am.
5. Mr. Gautam Narayan, on the other hand, submitted that the petitioner had no locus to insist on levy ofpenalty even if it is assumed that there was delay in furnishing the information. AccordingIq' Mr. Narayan, the CIC performed a dual role, which was, that of an; adjudicator of lis brought before it and also supervisory functions, tearried co contended that insofar as the penalty proceedings are concerned, they would fall within the ambit of supervisory functions ofthe CIC. In support of his submissions, learned counsel relied upon the following judgments ofthis Court; -
(i) Ankur Mutreja vs. Delhi University, LPA No.764/2011, decided on 09.01.2012.
(ii) Naresh Kumar vs. Central Information Commission & Ors.,
W.P.(C) Nos.11065, 11189, 11190, 11192/2015, decided on 12.01.2016. (Hi) Anand Bhushan vs. R.A. Haritash, LPA No.777/2010 decided on 29.03.2012.
(iv) Maniram Sharma vs. Central Information Commission and
6. I have heard learned counsel for the parties and perused the record. According to me, what emerges from the record is as follows: - 6.[1] There was, undoubtedly, a delay in furnishing the information to the petitioner. In fact, when, the petitioner's application was transferred from one Department to the other in exercise ofpowers vested under Section 6(3) ofthe RTI Act, the time taken, was beyond the:maximum time provided for in the proviso to that very Section which, as correctly stated on behalfofthe petitioner, is aperiod of 5days from the date of receipt of the application. The application, admittedly, was received on 22.09.2p14, whereas the same was transferred on 03.11.2014. 6.[2] Thereafter, despite the FAA's order dated 18.12.2014, to effect, that the relevant information should be supplied to'the petitioner within a period of10 days, the same was not furnished withiM-the stipulated timeframe. 6.[3] Admittedly, there was some amount of delay, though, the position with regard to this aspect is not clear. Respondent Nos. 2 to 4 have taken a stand, to which I have made a reference above, that the concerned School Authority had, in fact, via letter dated 11.11^2014; addressed to the petitioner gave the requisite information, which, however, was returned without any remarks by the postal department. 6.[4] The petitioner, thereafter, abandoned the appeal remedy and instead offiling a second appeal with the CIC, preferred to lodge a complaint under Section 18 of the RTI Act. W.P.(C) No.6436/2016 Page 6of14
7. Given this backdrop, the question which arises for consideration is: what were the options available to CIC qua a complaint when the information sought had been furnished, though, beyond the prescribed time? 7.[1] To answer this poser, one would have examine the contours ofthe provisions ofSection 18 along with those ofSection 19 and 20. 7.[2] A close scrutiny of provisions of Section 18 and 19 would show that the procedure prescribed under Section 18 as against Section 19 ofthe RTI Act is different. To enable a person to trigger an inquiry by the CIC under Section 18 of the RTI Act, he would have to, in the first instance, satisfy the CIC or the State Information Commission ('SIC'), his case falls under any one or more ofthe circumstances specified in clause (a) to (f) of sub-section (1) of Section 18. 7.[3] Once, the CIC or the SIC, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter if is empowered to initiate an inquiry qua the same. 7.[4] While making an inquiry into the matter, the,CIC/SIC can exercise powers which a Civil Court exercises while trying a suit under the Code of Civil Procedure, 1908 in respect of matters set forth in clauses (a) to (f) of sub-section (3) of Section 18. 7.[5] Sub-section (4) of Section 18 states that notwithstanding anything contained in any other Act of the Parliament or the State Legislature, the CIC or the SIC, as the case may be, may during an inquiry of any compliant under the RTI Act examine the record to which the RTI Act applies, which is under control of a public authority. The provision goes on to state that no such authority is empowered to withhold the record sought, on any ground H whatsoever. 7.[6] Thus, once the CIC/SIC comes to the conclusion, based on an inquiry that the complainant's case (in this case the petitioner) falls under any one or more ofthe circumstances set forth in clause (a) to (f) of sub-section (1) of Section 18 it can trigger an inquiry and, if the inquiry, leads to the conclusion that what is stated in the complaint is correct, then, it has the power to initiate proceedings under Section 20 ofthe RTI Act. 7.[7] Therefore, the contention advanced onbehalf ofthe petitioner that the procedure prescribed under Section 18 is different from that ofSection 19 is in my view correct. 7.[8] Resultantly, the only order, if at all, which the CIC could have passed in this case was an order of penalty under Section 20, providedthat after an inquiry, it came to the conclusion that the conduct of the PIO was not bona fide. In this context, one may usefully-refer to; relevant observations of: the Supreme Courtin the matter of ChiefInformation Commissioner vs. State of Manipur (supra), (paragraphs 29 to 31): -,. ^
Act [Section 18(l)(c)]. We are not concerned with provision of Section 18(1)(a) or 18(l)(d) of the Act. Here we are concerned with the residuary provision under Section 18(l)(f) ofthe Act.
30. Under Section 18(3) of the Act the Central Information Commission or the State Inforrnation Commission, as the case may be, while inquiring into any matter in this Section has the same powers as are vested in a civil court while trying a suit in respect of certain matters specified in Section 18(3)(a) to (f). Under Section 18(4) which is a non obstante clause, the Central Information Commission or the State Information Commission, as the case may be, may examine any record to which the Act applies and which is under the control of the public authority and such records cannotbewithheldfrom it on anyground.
31. It has been contended before us by the respondent that under Section 18 of the Act the Central Information Commission or the State Information Commission has no power to provide access to the information which has been requested for by any verson but which has been denied to him. The only order which can be passed by the Central Information Commission or the State Information ConimissioW as the case may be, under Section 18 is an order of penalty provided under Section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide.
32. We uphold: the said contention and do not find any error in the impusned ludsment of the Hi2h Court whereby it has been held that the Commissioner while entertainim a complaint under Section 18 ofthe said Act has no jurisdiction to pass an order providing for access to the information. W.P.(C)No.6436/2016 Page 9of14 1^ XXX XXX XXX
39. The nature ofthe power under Section 18 is supervisory in character whereas the procedure under Section 19 is an appellate procedure and a person who is a22rieved by refusal in receivins the information which he has sousht for can onlyseek redress in the manner provided in the statute, namely, bv following the procedure under Section
19. This Court is. therefore, of the opinion that Section 7 read with Section 19 provides a complete ^ statutory mechanism to a person who is as2rieved 'by refusal to receive information. Such person has to 9et the information by followins the aforesaid statutory provisions. The contention of the appellant that information can be accessed through Section 18 is contrary to the express provision ofSection 19ofthe Act. (emphasis is mine)
8. The contention advanced by Mr, Narayan, that the petitioner has no locus standi, to be heard, as a matter ofright, in perialty proceedings would be right, at astage, which would be>reached only after the CIC comes to the conclusion that it was amatter fit for iriitiatipii ofpeiiHity proceedings. 8.[1] The CIC, in my view, will have to ascertain as to whether there was delay and if, there was delay, how much was the delay,, and the reasons for the same, that is, whether or not the delay was deliberate and/or intentional. 8.[2] While ascertaining the answers to these questions, the CIC will necessarily have to hearthePIO aswell. 8.[3] In support of his submissions, Mr. Narayan had relied upon the judgment of the Division Bench in Ankur Mutreja's case. The Division Bench in Ankur Mutreja's case was dealing with the order of the CIC passed in appellate proceedings and not qua acomplaint filed under Section W.P.(C) No.6436/2016 of
18. That being said, in so far as the penalty proceedings are concerned, the observations contained therein would apply, albeit, at the appropriate stage. For the sake ofconvenience, the relevant observations made by the Division Bench inAnkur Mutreja's case are extracted herein;
8. It is clearfrom the language ofSection 20(1) that only the opinion, whether the Information Officer has "without any reasonable cause" refused to receive the application, for information or notfurnished information within the prescribed time or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information etc., has to beformed "at the time ofdeciding the appeal". The proviso to Section 20(1) of the Act further requires the CIC to. after forming such opinion and before imposing any yenaltv, hear the Information Officer asainst whom penalty is proposed. Such hearing obviously has to be after the decision of the appeal. The reliance by the appellant on Section 19{8){c) of the RTI Act is misconceived. The same only specifies the matters which the CIC is required to decide. The same cannot be read as a mandate to the CIC to pass the order ofimposition ofthe penalty along with the decision ofthe appeal. Significantly. Section 19(10) ofthe Act requires CIC to decide the appeal "in accordance with, suchprocedure as may be prescribed". The saidproc'edure is 'prescribed in Section 20 ofthe Act, which requires the CIC to, dfthe-time 'ofdecidins the appeal only form anopinion and'not to impose the penalty.
9. The aforesaidprocedure is even otherwise in consonance with logic andsettled legalprocedures. At the stageofallowing the appeal the CIC can only form an opinion as to the intentional violation if any by the Information Officer of the provisions of the Act. Significantly, imposition ofpenalty does notfollow every violation ofthe Act but only such violations as are without reasonable cause, intentional and malafide.
10. While in deciding the appeal, the CIC is concerned with the merits of the claim to information, in penalty proceedings the CIC is concerned with the compliance by the Information Officers of the provisions of the Act. A discretion has been vested in this regard with the CIC. The Act does notprovide for the CIC to hear the complainant or the appellant in thepenalty W.P.(C) No.6436/2016 Page 11 of14 n proceedings, though there is no bar also there against ifthe CJC so desires. However, the complai^^nf cannot as a matter ofriirht claim audience in the penalty proceeding's which are between the CIC and the erring Information Officer. There is no provision in the Act for payment ofpenalty or any part thereof if imposed, to the complainant. Regulation 21 ofthe Central Information Commission (Management) Regulations, 2007 though provides for the CIC awarding such costs or compensation as it may deemfit but does not providefor such compensation to be paid out ofthe penalty ifany imposed. The appellant cannot thus urge that it has a right to participate in thepenaltyproceedingsfor the saidreason either.
11. The penalty proceedings are akin to contempt proceedings, the settled position with respect whereto is that after brinsins the facts to the notice ofthe Court, it becomes a matter between the Court and the contemnor and the informant or the relator who has brousht the factum ofcontempt havme been committed to the notice of the Court does not become a complainant or petitioner in the contempt proceedings. His duty ends with the facts being placed before the Court thoush the Court may in appropriate cases seek his assistance. Reference in this regard may be made to Om Prakash Jaiswal v- DJK. Mittal (2000) 3 see 171, Muthu Karuppan, Commr. of Police, Chennai v. Parithi Ilamvazhuthi (2011) 5 SCC 496 arid Division Bench judgment of this Court in Madan. Mohan Sethi V; Nirmal Sham Kumari MANU/DE/0423/2011. The said: applies equally to proceedings under. Order XjOHX, Rule 2A ofthe Civil Procedure Code, 1908 which proceedings are also penal in nature.
12. Notice may also be taken of Section 18 of the RTI Act which provides for the CIC to receive and inquire into complaints against the Information Officer. The legislature having made a special provision for addressing the complaints ofaggrieved information seekers is indicative of the remedy of such aggrieved information seekers being not in the penalty proceedings under Section 20. " (emphasis is mine)
9. The view taken by the Division Bench of this Courtin Ankur Mutreja W.P.(C)No.6436/2016 Page 12 of14 (supra) has been followed in other cases which were cited by Mr. Narayan i.e. Anand Bhushan, Naresh Kumar V[5]. CIC & Ors. and Maniram Sharma vs. CIC & Ors.(supra). Therefore, in a nutshell what emerges is that the CIC, while deciding an application under Section 18, if satisfied, that a reasonable ground obtains to inquire into the matter, is required to make an inquiry and, thereafter, if satisfied as to the veracity of the averments made inthecomplaint, is empowered to initiate penalty proceedings under Section 20 of the RTI Act.
10. The CIC, in this case, has, clearly, not inquired into the grievance of the petitioner, which is that information was not given to him within the time limit specified in the Act. The CIC on the other hand, simply closed the petition on the ground that the petitioner was satisfied with the information received. While this may be true, the grievance articulated in the complaint which was that there was unexplained delay in fiimishing the information, in my view, is an aspect to which the CIC did not apply its mind to. ^ 11. Therefore, for the foregoing- reasons^ I am inclined to set aside the order dated 18.06.2015. It is directed accordingly. Conclusion;
12. The CIC will hear the petitioner afresh and decide the matter in consonance with the regime of Section 18 and other attendant provisions of the RTI Act and the rules framed thereunder. In case, the CIC comes to the conclusion that proceedings under Section 20 need to be initiated, then, it would decide as to whether or not audience is to be granted to the petitioner in line with the ratio of the decisions of the Division Bench of this Court rendered inAnkurMutreja and Maniram Sharma (supra). W.P.(C)No.6436/2016 Page 13 of14
13. The writ petition is disposed of in the aforesaid terms. There shall, however, be no order as to cost.
(RAJIV SHAKDHER) JUDGE