Hindustan Petroleum Corporation Limited & Ors. v. Mr Siddhartha Mukherjee

13. Notice was issued in this writ petition on 16.10.2023, and the impugned order was stayed.

14. By an order dated 08.05.2024, Mr. Abhay Kumar, learned counsel, was requested to assist the Court as Amicus Curiae, particularly to present Emphasis supplied. the case of the respondent, who had earlier appeared in person. The respondent has since engaged Dr. Puran Chand, learned counsel, to represent him.

B. RELEVANT PROVISIONS OF THE RTIACT:

15. The relevant provisions of the RTI Act are set out below: Section 2(f): Definition of “information” “2 (f). "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;” Section 18: Powers and functions of Information Commissions

18. (1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,— (a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in subsection (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be; (b) who has been refused access to any information requested under this Act;

(c) who has not been given a response to a request for information or access to information within the time limit specified under this Act;

(d) who has been required to pay an amount of fee which he or she considers unreasonable; (e) who believes that he or she has been given incomplete, misleading or false information under this Act; and (f) in respect of any other matter relating to requesting or obtaining access to records under this Act. (2) Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof. (3) The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:— (a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things; (b) requiring the discovery and inspection of documents;

(c) receiving evidence on affidavit;

(d) requisitioning any public record or copies thereof from any court or office;

(e) issuing summons for examination of witnesses or documents; and (f) any other matter which may be prescribed. (4) Notwithstanding anything inconsistent contained in any other Act of Parliament or State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds.”2 Section 20: Penalties

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. (2) 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 and persistently, failed to receive an application for information or has not furnished information within the time specified under subsection (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 recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him.”3

C. SUBMISSIONS OF COUNSEL:

16. Mr. Krishnan Venugopal, learned Senior Counsel for the petitioners, submitted that the impugned order is entirely in excess of the scope of Sections 18 and 20 of the RTI Act. He contended that CIC has no jurisdiction to enter into policy issues – in this case, whether or not HPCL ought to maintain a panel of advocates. The jurisdiction under the statute is confined to furnishing of information maintained by the public authority, and a complaint under Section 18 of the RTI Act can be entertained only if the PIO has withheld information available with it.

17. Mr. Venugopal further drew my attention to an order dated 13.06.2023, passed by CIC, in nine second appeals filed by the respondent herein against the petitioner. After dealing with the appeals individually, CIC noted that those appeals, as well as four writ petitions before this Court and other proceedings before various Courts, arise out of employer-employee disputes and grievances of the respondent. Relying upon the judgment in Union of India v. Namit Sharma[4], CIC observed as follows: “The Applicant in these cases has various issues with his employer organisation and has rightly approached the High Court seeking resolution thereof. However, filing repeated RTI applications against the concerned public authority is unlikely to lead to resolution of these disputes. In fact, it is interesting to note that such litigation whereby the Act has been misused or abused as a weapon for settling personal scores has been discouraged by not only this Commission but also the Courts of law.”

18. Mr. Venugopal also cited several judgments of the Supreme Court, to which I shall refer to in due course.

19. Dr. Chand took two preliminary objections to the present writ petition. He submitted that CIC had not been impleaded as a party respondent, leaving a private individual [the original applicant/complainant under the RTI Act] as the sole respondent. According to Dr. Chand, the petition under Article 226 of the Constitution cannot be entertained against a private respondent alone. (2013) 10 SCC 359, [hereinafter, “Namit Sharma 2”].

20. Dr. Chand’s second objection was that the writ petition is premature, as the impugned order only directs issuance of show cause notices to petitioner Nos. 2 and 3. He submitted that the Court ought not to interfere at this stage, and instead leave it to petitioner Nos. 2 and 3 to show cause, subject to their remedies after a final decision. Dr. Chand cited a judgment of the Supreme Court in Namit Sharma v. Union of India[5] in support of his contention.

21. Mr. Abhay Kumar, learned Amicus Curiae, drew my attention to a reply dated 26.02.2021, furnished by HPCL to a different RTI application filed by the respondent, in which also certain queries were raised with regard to empanelment of counsel who had appeared on behalf of HPCL. The reply states that the information as to whether the counsel in question was an “empaneled advocate” of HPCL would not be disclosed, as the respondent himself was involved in several litigations against HPCL.

D. ANALYSIS:

22. Before dealing with Mr. Venugopal’s arguments on merits, the two preliminary objections taken by Dr. Chand must be considered.

23. As far as non-impleadment of CIC is concerned, Mr. Venugopal submitted that CIC had originally been impleaded as respondent No. 2 in the writ petition, but was deleted upon a defect being raised by the Registry that it should not be made a party. This defect was raised in view (2013) 1 SCC 745, [hereinafter, “Namit Sharma 1”]. This judgment was delivered on 13.09.2012, but was subsequently reviewed by a further judgment dated 03.09.2013, cited by Mr. Venugopal [Namit Sharma 2]. of the observations of the Division Bench of this Court in Union Public Service Commission vs. Shiv Shambhu & Ors.6:

24. The judgment was followed by the learned Single Judge in State Bank of India vs. Mohd. Shahjahan[7] and Registrar of Companies & Ors. vs. Dhamendra Kr. Garg & Anr.8.

25. In light of these decisions, and the fact that the petitioners were compelled to delete CIC from the array of parties, consequent upon a defect being raised, the preliminary objection on this ground is rejected.

26. Turning now to the question of whether the writ petition ought to be entertained at the show cause notice stage, it may be first clarified that there is no universal rule prohibiting such a course. Where proceedings had been taken entirely without jurisdiction, which is the submission of Mr. Venugopal in this case, it would be open to the Court to interfere even against a show cause notice[9]. Where, however, a discussion on the facts

2012 SCC OnLine Del 3263, [hereinafter, “Dhamendra Kr. Garg”]. Examples of cases in which the Supreme Court held that intervention at the show cause notice stage was justified are found inter alia in Siemens Ltd. v. State of Maharashtra [(2006) 12 SCC 33] (paragraph 9), and Union of India v. VICCO Laboratories [(2007) 13 SCC 270] (paragraph 31). Coordinate benches of this Court have also considered it appropriate to entertain writ petitions against of the case is required, the Court would generally exercise a self-imposed restriction against entertaining a writ petition. In the present case, the dispute concerns the jurisdiction of CIC under Sections 18 and 20 of the RTI Act. HPCL has taken a clear position that the information sought by the respondent is not maintained by it at all. There is no controversy on merits or on facts, which would require determination at this stage. Keeping in mind the nature of Mr. Venugopal’s submissions, I am therefore of the view that the present case does not deserve to be rejected on this preliminary ground.

27. The scope of the penalty provision in Section 20 of the RTI Act has been explained in detail in the decision of a coordinate Bench in Dhamendra Kr. Garg. In this case also, CIC directed issuance of show cause notices to Public Information Officers [“PIO”]. The observations of the Court, relevant for the present case, are as follows:

show cause notices issued under Section 20 of the RTI Act: see, e.g., Dhamendra Kr. Garg, and Bar Council of Delhi v. Central Information Commission [2017 SCC OnLine Del 6992]. taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. 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.”10

28. Another coordinate Bench, in Bar Council of Delhi v. Central Information Commission11, set aside a show cause notice with regard to penalty under Section 20 of the RTI Act, noting that the public authority had indicated that all available information had already been provided.

29. The Supreme Court in Manohar v. State of Maharashtra12 was concerned with a case under Section 20(2) of the RTI Act, in which the State Information Commissioner had directed initiation of disciplinary proceedings against the PIO. The provision of Section 20(2) of the RTI

Act is substantially similar to Section 20(1) of the RTI Act, which deals with imposition of penalties. The Court analysed the provision as follows: “31. It appears that the facts have not been correctly noticed and, in any case, not in their entirety by the State Information Commission. It had formed an opinion that the appellant was negligent and had not performed the duty cast upon him. The Commission noticed that there was 73 days' delay in informing the applicant and, thus, there was negligence while performing duties. If one examines the provisions of Section 20(2) in their entirety then it becomes obvious that every default on the part of the officer concerned may not result in issuance of a recommendation for disciplinary action. The case must fall in any of the specified defaults and reasoned finding has to be recorded by the Commission while making such recommendations. “Negligence” per se is not a ground on which proceedings under Section 20(2) of the Act can be invoked. The Commission must return a finding that such negligence, delay or default is persistent and without reasonable cause. In our considered view, the Commission, in the present case, has erred in not recording such definite finding. The appellant herein had not failed to receive any application, had not failed to act within the period of 30 days (as he had written a letter calling for information), had not mala fide denied the request for information, had not furnished any incorrect or misleading information, had not destroyed any information and had not obstructed the furnishing of the information. On the contrary, he had taken steps to facilitate the providing of information by writing the stated letters. May be the letter dated 11-4-2007 was not written within the period of 30 days requiring Respondent 2 to furnish details of the period for which such information was required but the fact remained that such letter was written and Respondent 2 did not even bother to respond to the said enquiry. He just kept on filing appeal after appeal. After 4-4-2007, the date when the appellant was transferred to Akola, he was not responsible for the acts of omissions and/or commission of the office at Nanded.”13

30. Mr. Venugopal also cited a judgment by another coordinate Bench, in Shishir Chand v. Central Information Commission14, which recorded increase abuse of misuse of the RTI Act, which would impede 2023 SCC OnLine Del 8108, [hereinafter, “Shishir Chand”]. government servants from discharging their duties, rather than further good governance.

31. Similarly, in Central Board of Secondary Education & Anr. v. Aditya Bandopadhyay & Ors.15, the Supreme Court sounded a note of caution in the following terms: “66. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of the RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information [that is, information other than those enumerated in Sections 4(1)(b) and (c) of the Act], equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of Governments, etc.).

67. Indiscriminate and impractical demands or directions under the RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquillity and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising “information furnishing”, at the cost of their normal and regular duties.”16 (2011) 8 SCC 497, [hereinafter, “Aditya Bandopadhyay”].

32. Applying these authorities to the facts of the present case, I am of the view that the approach of CIC in the impugned order is wholly ultra vires its powers under the RTI Act. The respondent’s request was for a list of empaneled advocates. HPCL clearly stated that it does not have such a panel, but at the first appellate stage, it compiled a list of advocates engaged across India in various courts in the past or at that time. The respondent’s contention, in his complaint under Section 18 of the RTI Act, at the highest, was that the said list was incomplete. The respondent also asserted that he “is fully confident and is aware that the public authority maintains a panel of its advocates and lawyers”. It was stated that this evidence had been produced before the FAA.

33. The only evidence produced in support of the respondent’s contention that a panel was, in fact, maintained, and had been deliberately suppressed, was HPCL’s letter dated 26.02.2021, issued in response to another RTI application by the respondent. The relevant observations in the said letter [with the name of the concerned counsel redacted] is as follows: “With regard to the information under point no. (e) of the RTI Application as to whether [xxx] is an empaneled Advocate of the Corporation, I note that admittedly you have held several litigations against the Corporation and in such circumstances, divulging details with regard to the empaneled Advocates of the Corporation would be prejudicial to the Corporation’s interest. Such information is being held by the Corporation in fiduciary capacity and without cogent reason being cited as to how disclosure of information is required for larger public interest, the information sought for comes under the purview of Section 8(1) (e) of Right to Information Act, 2005 and thereby cannot be shared. ”17

34. I do not find any support in this communication for the respondent’s categorical assertion that HPCL maintains a panel of advocates. The reference to “whether [xxx] is an empanelled advocate of the Corporation” is in the context of the query raised by the respondent. HPCL declined to divulge any detail with regard to its “empaneled advocates”, in view of pending litigation between the parties. It is contended on behalf of the respondent that the use of the words “empaneled advocates” indicates that there was such a panel. I am unable to accept this contention, based merely on the refusal of HPCL to supply any information with regard to the subject. HPCL’s repeated categorical assertions in the present writ proceedings, are also to the contrary.

35. Paying heed to the note of caution sounded by the Supreme Court in Aditya Bandopadhyay, and by this Court in Shishir Chand, it may be observed that the RTI Act is intended to foster transparency in government functions by supplying information available with public authorities to the citizens. It is not intended to require public authorities to go further, and provide information which they do not maintain. Viewed from this perspective, the jurisdiction of CIC under Section 20 (1) of the RTI Act can only arise if the PIO has denied a request for information or knowingly given incorrect, incomplete or misleading information, which was in the possession of the public authority. The respondent has sought to make out this case, which I have not found persuasive, as recorded above. CIC, however, proceeded on a completely different basis, with regard to the desirability of the practice of empanelling advocates. Its observations on this point were extraneous to the issue at hand. CIC also observed that HPCL failed to bring on record the guidelines conferring on them “unfettered powers for engaging lawyers without preparing panels”. However, this was not the information sought by the respondent, and HPCL was not required to bring such information on record. Whatever the views of CIC on the policy of HPCL in this regard, the only question before it was whether “information”, as defined in Section 2(f) of the RTI Act has been denied mala fide, or incorrect, incomplete or misleading information has been knowingly furnished. The impugned order does not so indicate, but instead expresses policy prescriptions, which are beyond the remit of CIC.

36. Reference in this connection may also be made to an order of a coordinate Bench in Union of India vs. Ram Gopal Dixit18, which concerns the following observations of CIC with regard to utilisation of funds under the Members of Parliament Local Area Development Scheme:

W.P.(C) 5252/2020, decided on 15.05.2024. Program Implementation) to make above referred changes to publish MPwise, Constituency wise and work-wise details, and reasons for delay, if any, after duly procuring from the concerned district administration and ensure its voluntary disclosure under Section 4. Disposed of.” This Court disposed of the Union of India’s writ petition against this order with the following observations:

37. Dr. Chand, on the other hand, cited the judgment of the Supreme Court in Namit Sharma 1, dated 13.09.2012 in W.P.(C) 210/2004, and reported as (2013) 1 SCC 745. However, it is not necessary to address the said submission, as the judgment was recalled in its entirety by the Supreme Court in exercise of its review jurisdiction in Namit Sharma 2, and the writ petition was disposed of by an entirely different judgment [dated 03.09.2013, in Review Petition Nos. 2309/2012 and 2675/2012, reported as (2013) 10 SCC 259], to which Dr. Chand did not refer.

38. In view of the above, the impugned order of CIC is held to be without jurisdiction and is set aside. No further proceedings before CIC are required, as the respondent did not assail the first appellate order dated 04.02.2022, by way of an appeal under Section 19 of the RTI Act, but only filed a complaint under Section 18(1) of the RTI Act, which I have held to have been erroneously entertained by CIC.

E. CONCLUSION:

39. For the aforesaid reasons, the writ petition is allowed, and the impugned order of CIC dated 27.09.2022 is set aside. No further proceedings will be taken pursuant to the show cause notices issued thereunder.

40. All pending applications are disposed of.19 PRATEEK JALAN, J JULY 1, 2025/UK/Ainesh/ With regard to pending applications filed by the respondent, it was recorded in the order dated 22.05.2025 as follows: “2.Dr. Puran Chand, learned counsel for the respondent, states upon instructions from the respondent, who is present in Court, that if the writ petition itself is decided, none of the other pending applications will survive.”