CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/01478 dated 20.11.2007
Right to Information Act 2005 - Section 19
Appellant - Dr. Narender Shanker Pandey
Respondent - Ministry of Home Affairs (Forensic Dep't)
Facts
:
By an application of 21.11.06 Dr. N. S. Pandey, Asstt. Director (Blastics) of
Chandigarh applied to the Chief Forensic Scientist, Chandigarh, Directorate of
Forensic Sciences, New Delhi seeking the following information:
“1. Who is senior most officer/ division in-charge of the ballistics
division as on date? Competent Authority who can appoint
division in-charge?2. In case, Mrs. Asha Dhir, AD (Ball.) is senior most officer of
ballistics division as per seniority list circulated by DFS vide
No. 13/13/93-Adm dated 11th October, 2006, then what
makes Mrs. Asha Dhir not to function as division in-charge?
If Mrs. Asha Dhir has represented for taking over as division
in-charge, the dates & how many times, she made her
representation to whom and action taken on her
representation.3. The NABL guidelines, which authorizes to appoint Technical
Manager by keeping aside the hierarchy of the system.4. The qualification of an officer who could be appointed as
Technical Manager by violation of hierarchy of the system
and gazette notification of such appointment, if any?5. How far it is true that Mrs. Asha Dhir, AD (Ball) has never
challenged or even made a slightest grievance of her
transfer from ballistics division to physics division? A copy of
her transfer order and/ or substantiation in writing of verbal
order issued by competent authority is also desired.6. How Dr. S. K. Jain, AD (Ball) can supervise the work of
another AD (Ball) working in the same rank and pay scale?7. In absence of DR. S. K. Jain, AD (Ball), can an SSO (Ball)
supervise the work of an AD (Ball)?8. A copy of letter no. CFSL/20/4/2004/Estt-3547 dated
5.10.2005 written by Director, CFSL, Chandigarh and action
taken on his recommendations.9. Copy of memos, similar issued to me, issued to six officers
and their replied in connection with loss of camera from
ballistics division of CFSL, Chandigarh.1
10. Copy of report of DR. S. K. Jain, AD (Ball) in connection with
loss of camera from ballistics division of CFSL, Chandigarh
based on which undersigned was asked for explanation.11. Copy of GFR Form No. 33 vide which the equipment SEM-
EDXA was taken over jointly by DR. S. K. Jain and myself
and the copy of noting on the office file pertaining to taking
over the equipment SEX-EDXA.”To this he received a response of 20.2.07 from Dr. M. S. Rao as follows:
“Reply to point 1, 2 & 5:
Smt. A. Dhir is a senior most Assistant Director as per the seniority
list of the Assistant Directors in the Ballistics Discipline. However,
in IXth Five year plan period, she had opted to work with Shri A. K.
Ganjoo, Dy. Director (Physics) on the creation of the image
processing facility in the CFSL, Chandigarh. Accordingly, she was
shifted to Phy. Div. on the approval of Dr. R. K. Tiwari, Ex-Chief
Forensic Scientist, New Delhi. In Xth Five Year Plan also she had
worked with Shri A. K. Ganjoo, DD (Phy.) on the plan project
“Digital Water Marking”. After her shifting, Dr. S. K. Jain, A. D. is
the senior most officer in the Division. This shifting is the
prerogative of the Head of Department/ Chief Executive of the
Department in public interest.Reply to point 3 & 4:
As per the Quality Manual No. 01, Issue No. 08 (Sec. 4.1.5, Page-
3) it is clearly mentioned that the Director can designate the officer
as Technical Manager, who is well conversant with the methods
and purpose of forensic examination. Also, the Director can
nominate the Dy. Technical Manager to adequately support and
maintain various activities of management system.Reply to point 6:
Senior Officer can mark the work of the division of the junior officers
of the division as per the Govt. Rules. In this case, DR. N. S.
Pandey is junior to DR. S. K. Jain in the rank of Assistant Directors
in the Ballistics Division. Accordingly, Dr. S. K. Jain, Asstt. Director
(Ball.) can mark the cases to Dr. N. S. Pandey, Asstt. Director
(Ball.). It is pertinent to mention here that the work of all the
Assistant Directors (Ballistics), is presently, being supervised by the
Director, CFSL, Chandigarh, directly.Reply to point 7:
In the absence of DR. S. K. Jain, A. D. (Ballistics)-cum-Technical
Manager (Ballistics), who is senior to Dr. N. S. Pandey, AD (Ball.)
as per the NABL Guidelines the cases are to be marked to DR. N.2
S. Pandey by the Director and not by the SSO (Ballistics)-cum-
Deputy Technical Manager because his is junior to Dr. Pandey.Reply to point 9 & 10:
Consequent upon the order of Inquiry by the Director, CFSL,
Chandigarh, relating to the loss of Camera from Ballistics Division
and recovery of the same thereafter, the order of the Inquiry was
dropped.Reply to point 11:
Copy of the ‘Certificate of transfer of charge’ in Form GFR-33 in
respect of the laboratory of Scanning Electron Microscope coupled
with Energy Dispersive X-ray Analysis System and automated
detection of GSR Software package’ is enclosed herewith.As and when further information, if any, is received by this
Directorate from CFSL, Chandigarh, the same will be provided to
you immediately.’This was followed by a representation of 26.2/07 by Dr. Pandey addressed
to the CPIO reiterating his earlier request, to which he received a reply on 2.3.07
again from CPIO Dr. M. S. Rao, as follows:“Reply to Point 1:
In CFSL, Chandigarh, Deputy Director (Ballistics) is the senior most
post in the Ballistics discipline. As mentioned in the nature of
duties attached with the post, Deputy Director (Ballistics), in
addition to his other duties, is to function as Head of the ballistics
Division. Hon’ble President of India is the appointment authority in
respect of Deputy Director (Ballistics).“Reply to point 2 & 5:
The information sought by the applicant as per point 2 & 5 relates
to personal information of Mrs. Asha Dhir, Assistant Director
(Ballistics) CFSL, Chandigarh and has no relationship to any public
activity or interest. Disclosure of this information may cause
unwarranted invasion of the privacy of Mrs. Asha Dhir, Assistant
Director (Ballistics). This type of information is exempted from
disclosure u/s 8 (1) (j) of the RTI Act, 2005. Therefore, this
information can not be disclosed to the applicant.Reply to point 3 & 4:
As per the Quality Manual No. 01, Issue No. 08 (Sec 4.1.5, Page-
3), it is clearly mentioned that the Director can designate the officer
as Technical Manager, who is well conversant with the methods3
and purpose of forensic examination. Also, the Director can
nominate the Dy. Technical Manager to adequately support and
maintain various activities of MANAGEMENT SYSTEM.Reply to point 6 & 7:
At present, three persons viz Mrs. Asha Dhir, DR. S. K. Jain and
DR. N. S. Pandey are working as Assistant Director (Ballistics) in
CFSL, Chandigarh. All these three officers are reporting directly to
the Director, CFSL, Chandigarh. Question of supervision of work
of another Assistant Director by DR. S. K. Jain, Assistant Director
(Ballistics), working in the same rank and pay scale, does no arise.In CFSL, Chandigarh, post of Senior Scientific Officer (Ballistics) is
junior to that of Assistant Director (Ballistics). Therefore, Senior
Scientific Officer (Ballistics) can not supervise the work of Assistant
Director (Ballistics) under any circumstances.Reply to Point 8, 9 & 10:
In terms of sections 8 (1) (g) of the RTI Act, 2005 the information
sought by the applicant in point 8, 9 & 10 of his above mentioned
application, can not be provided to him.Reply to point 11:
Photocopy of the notings on the office file pertaining to taking over
the equipment SEM-EDXA is enclosed herewith as Annexure-I.” “Still not satisfied, Dr. Pandey made a further representation on 4.4.07
pointing out the deficiencies in the information received. Upon this he received
an initial response dated 24.4.07 from Sh. K. V. Ravi Kumar, Sr. Scientific Officer
Gr. I, seeking time to reply as Dr. M. S. Rao, CPIO was out of the country, and
then received a response of 22.5.07 from CPIO Dr. M. S. Rao as follows:“Reply to point 2 & 5:
The information sought by the applicant as per point 2 & 5 relates
to personal information of Mrs. Asha Dhir, Assistant Director
(Ballistics) CFSL, Chandigarh and has no relationship to any public
activity or interest. Disclosure of this information may cause
unwarranted invasion of the privacy of Mrs. Asha Dhir, Assistant
Director (Ballistics). This type of information is exempted from
disclosure u/s 8 (1) (j) of the RTI Act, 2005. Therefore, this
information can not be disclosed to the applicant.As, the promotion of Smt. Asha Dhir, A. D. (Ball) has bearing on
your career progress, you are informed that as per the records
available in CFSL, Chandigarh, Smt. Asha Dhir, A. D. (Ball) had4
submitted her representations dated 22.8.2000, 1.10.2001 and
29.11.2001 regarding her promotion to the post of Deputy Director
(Ballistics), which are enclosed as Annexure-I. Photocopy of the
replies dated 8.11.2001 and 2.1.2002 in response to her
representations are enclosed as Annexure-IIReply to point 3 & 4:
As per the Quality Manual No. 01, Issue No. 08 (Sec 4.1.5, Page-
3), it is clearly mentioned that the Director can designate the officer
as Technical Manager, who is well conversant with the methods
and purpose of forensic examination. Also, the Director can
nominate the Dy. Technical Manager to adequately support and
maintain various activities of MANAGEMENT SYSTEM.Reply to Point 8, 9 & 10:
In terms of reasons mentioned in sections 8 (1) (g) of the RTI Act,
2005 the information sought by the applicant in point 8, 9 & 10 of
his above mentioned application, can not be provided to him.”Aggrieved, Dr. Pandey moved his first appeal before the Jt. Secretary (PM)
/ First Appellate Authority on 12.6.07 concluding with the following request:“I request you to kindly accept appeal as per section 18 (1) (e) of
RTI Act 2005 and provide documents as requested and also allow
for the perusal of the relevant files with a permission to take the
extract in this case, if required, as prescribed in the RTI Act, 2005.
There has already been an inordinate delay in handling this
application (more than six months time) and also the documents
provided have not been certified (as mentioned in Chapter-1:2 (j)(ii) of RTI Act 2005.”
Upon this he received an order from none other than the same Dr. M. S.
Rao, claiming that the application stands fully answered, as follows:
“The definition of information, as it occurs, in Section 2 (f) of RTI
Act, lays down the scope of the type of information a petitioner can
seek. The underlying idea is clear that the applicant’s entitlement
for information is only in respect of the categories of information
mentioned in Sec. 2 (f). It is not open to the applicant to ask, in the
guise of seeking information, questions to the CPIO about the
nature and quality of actions of any officer. The RTI Act does not
cast on the CPIO any obligation to answer queries, as in this case,
in which the applicant attempts to elicit answers to the questions.
The applicant’s right extends only to seeking information as defined
in Sec. 2 (f). In view of this, and the decisions of the Central5
Information Commission in similar Cases (CIC/AT/A/2006/00062
dated 1.5.2006 and CIC/AT/A/2006/00045 dated 21.5.2006 (copies
enclosed as Annexure-II)), the request of Dr. N. S. Pandey is not
clear in terms of Sec. 2 (f) of RTI Act.Here, it is worth mentioning that a plain reading of the petition
makes it clear that you are more interested in contesting the actions
of Director, CFSL, Chandigarh. The questions raised by you are
more in the nature of allegations rather than seeking information.In view of the above clarifications under various provisions of the
RTI Act, your application stands fully answered”Appellant’s prayer before us in his second appeal is as below:
“a. On the advice of the program as well as under
provisions of RTI Act 2005, second appeal of applicant
may please be admitted and the case may be decided on
merit and CPIO may be directed to provide required
documents requested in the original application vide
points 8, 9 & 10 made to CPIO on 22.11.2006.b. As advised by the host of the program and under
various provisions of the RTI Act 2005 suitable action &
penalty may be imposed on CPIO for the reasons
mentioned below:i. for harassing me by not providing the documents
required for such a long period.ii. for providing irrelevant documents,
iii. for not providing the certified copies of the
documents.iv. For deciding my first appeal as Appellate
Authority flouting the provisions of RTI 2005 Act
knowing the fact that in the instant case he was
CPIO himself.”We subsequently received requests from appellant Dr. Pandey that instead
of being heard by videoconference in Chandigarh, he be allowed to appear
personally before us in Delhi. The appeal was consequently heard on 1.4.2009.The following are present:
Appellant at CIC Studio, New Delhi
Dr. N. S. Pandey
Respondents at NIC Studio, Chandigarh
Dr. A. K. Ganjoo, Dy. Dir. (Physics) Dte. of Forensic Sciences.6
Sh. J. R. Sharma, Asstt. Dte. of Forensic Sciences
at CIC Studio, New Delhi.Sh. D. Sharma, J.S. (PM), MHA
Sh. R. S. Verma, Director, CFSL Chandigarh.Sh. K.V. Ravi Kumar, SSO (F), DFS, MHA, New Delhi
Sh. J. C. Sharma, PA, CFSL, Chandigarh.Sh. S. C. Verma, Asstt. DFS, MHA, New Delhi.
The following are the three issues before us:
Issue. 1 Was the CPIO and FAA the same person? Issue 2 The reasons why appellant was not given an opportunity to inspect the relevant files, as requested, and Issue 3 The grounds for application of sec. 8(1) (g) in seeking exemptionfrom disclosure of information sought at points 8, 9 & 10 of the original
application.Issue 1: On this issue Shri R. S. Verma, Director CSFL Chandigarh submitted
that indeed during the time that these applications were under process – he
referred to the subsequent representations also as applications – Dr. Rao was
promoted as Appellate Authority and, therefore, Dr MS Rao did indeed hear the
case as First Appellate Authority.Issue 2: On this issue respondent Shri Verma submitted that concerned
documents were not in the possession of the CSFL Chandigarh and had to be
obtained from elsewhere. The documents were sent to the CSFL on 4.1.07 but
were only received on 25.1.07 after which response was sent on 22.2.07 to
appellant, thus accounting for the delay. Once these were obtained the requisite
documents were given to appellant Dr. Pandey.Issue 3: Shri Verma submitted that the documents sought at Point 8, 9 & 10
were found missing and were, therefore, not provided but the information
contained therein has now been provided. At any rate these are documents7
concerning a third party and copies of the same have therefore been refused u/s
8 (1) (g), as their disclosure could lead to conflict within the departmentIn his response appellant Dr. Pandey submitted that he had sought to pay
the fees through cash while sending the original application which was returned
to him. He then visited Delhi in order to pay the fees by Postal Order on 6.12.07.
He submitted that the first Appellate Authority is expected to be an officer senior
to the CPIO but in this case the same officer also heard the first appeal. Dr.
Pandey refuted the claim that he had received the documents sought or their
contents against Points 8, 9 & 10. Even other documents received in the
piecemeal responses that he received through his various representations were
not certified.DECISION NOTICE
After having heard the parties and examined the records, the issues
discussed above are decided as follows:Issue 1:Sec. 19(1) of the RTI Act allows for little ambiguity. It reads as follows:
“Sec. 19
(1) Any person who, does not receive a decision within the time
specified in sub-section (1) or clause (a) of sub-section (3) of
section 7, or is aggrieved by a decision of the Central Public
Information Officer or State Public Information Officer, as the
case may be, may within thirty days from the expiry of such
period or from the receipt of such a decision prefer an
appeal to such officer who is senior in rank to the
Central Public Information Officer or State Public
Information Officer as the case may be, in each public
authority 1 :Provided that such officer may admit the appeal after the
expiry of the period of thirty days if he or she is satisfied that
the appellant was prevented by sufficient cause from filing
the appeal in time. ”
1
Emphasis added
8
It is, therefore, necessary that the appeal should have been heard by an
officer senior in rank to the CPIO even though in the meantime the CPIO had
been designated as First Appellate Authority for administrative reasons. We
would, therefore, have been within our practice to now remand this appeal to the
First Appellate Authority, but as will be clear the issues before us are readily
determined based on the arguments already heard and, therefore, we have
decided to decide the remaining two issues, as follows:
Issue 2 In this case there is no further plea for inspection of documents but
only for copies of certified documents which were required. The grounds for not
having been allowed inspection are at any rate specious. Even though the
inspection of the file may not serve any purpose at this stage, at any rate it is
clear that the application made on 22.11.06 should have been replied by
21.12.06. Even were we to concede that the fee was received only on 6.12.06,
the response had become due by 5.1.07. The response, therefore, is overdue
and in addition incomplete. Dr. M. S. Rao, Director cum Chief (Forensic
Sciences), Directorate of Forensic Sciences, Chandigarh will now show cause
why he should not be penalized @ Rs. 250/- a day from 25.1.07 the date on
which he received the request for information to 22.2.07 when he actually
supplied this partial information to Dr. Pandey, amounting to Rs. 7000/-. He may
do this either in writing by 27.4.2009 or by personal appearance through
videoconference in Chandigarh on 10.6.2009 at 4.30 p.m.
Issue 3 Sec. 8(1) (g) is clear and reads as follows:
“Sec. 8(1)
(g) information, the disclosure of which would endanger the life
or physical safety of any person or identify the source of
information or assistance given in confidence for law
enforcement or security purposes; “
In this case no argument has been even sought to be presented to
substantiate any threat to any person or exposure of a source of information or
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assistance given in confidence, and there is no question of law enforcement or
security purpose but only departmental considerations. Copies of each of
these documents, duly certified, will, therefore, be provided to appellant Dr.
Pandey within ten working days of the date of receipt of this Decision
Notice.
From the above, as is also clear that the information not having been
supplied in time, will now u/s 7(6) be required to be provided free of cost. Besides
by failing to receive the initial fees even though these were paid in conformity
with Government rules on the subject, the Directorate has compelled appellant
Dr. Pandey to travel to Delhi. For this reason, compensation of Rs.2000/ 2 – will
be paid in order to cover the cost of Rail Transport from Chandigarh to Delhi and
stay for at least one day. This amount will also be paid to Dr. Pandey within ten
working days of the date of receipt of this Decision Notice.
The appeal is therefore allowed. Costs will be as described. Announced in
the hearing.
Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
1.4.2009
Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges, prescribed under the Act, to the CPIO
of this Commission.
(Pankaj Shreyaskar)
Joint Registrar
1.4.2009
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As on date 1st AC Train fare Rs. 800 + 800 + Local conveyance +Stay
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