Ms.Kanchan P Kashalkar vs Central Vigilance Comission on 4 June, 2010

                 CENTRAL INFORMATION COMMISSION
         Appeal No. CIC/WB/A/2009/000359 & 356 dated 25-3-2009
              Right to Information Act 2005 - Section 19

Appellant:         Ms. Kanchan P. Kashalkar
Respondent:        Central Vigilance Commission (CVC)
                     Decision announced : 4.6.2010


FACTS

These are two appeals from Ms. Kanchan P. Kashalkar of Uran-Mora
Road, Urban District Raigarh, M.P.

File No. CIC/WB/A/2009/00359
In this case by an application of 1-5-08 received in CVC on 13-5-08,
Ms. Kanchan Kashalkar sought the following information from CPIO Shri A.K.
Gupta, Under Secretary, CVC:

“i) Subject matter of information: Internal Notes submitted on
each of our RTI applications/ 1st appeal/ second appeal
made by us so far. Monthly report submitted by BOI to
CVC i.e. CVO from August 2006 onwards. My complaint
against Bank of India Official and correspondence
thereon between BOI and me.”

This was followed by a series of questions on internal noting on Ms.
Kanchan Kashalkar’s RTI applications. To this Ms. Kashalkar received a
response from CPIO dated 19-6-08 informing her as follows:

“Part A of RTI application
S. File No. Date Notin Correspo
No. g/ ndence/
pages letters

1. CVC/RTI/06/452/39894 6.11.2006 02 02

2. CVC/RTI/06/452-45682 10.1.2007 00 01

3. CVC/RTI/06/675-49538 22.2.2007 32 04

4. CVC/RTI/06/675 23.1.2007 04 02

5. CVC/RTI/APPO7/035/56 4.5.2007 02 16
314

6. CVC/RTI/APP/CIC/07/01 31.8.2007 04 05
1/66847

7. CVC/RTI/07/152/55941 7.5. 2007 04 04

8. CVC/RTI/07/451/66438 9.5.2007 02 02

9. CVC/RTI/APP/07/129/72 8.11.2007 04 01
864

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10. CVC/RTI/07/855/5214 3.3.2008 03 01

Part B of RTI Application:

       (A)    Copies of note being provided-01
       (B)    Copies of note sheets, correspondence being provided-
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       (C)    Applicants request for information is in the form of a

query, which does not constitute information falling within
the purview of section 2 (f) of RTI Act.

(D) Copies of note sheets & your letter dated 23.1.2007-01
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(E) Information is denied 8 (1) (d), 8 (1) (e) and 8 (1) (j) r/w
section 11 of the RTI Act.

The details requested is as above, you may remit the total
amount of Rs. 250/- for all the copies of information as intimated
earlier.”

This was consequent to an initial response of 10-6-08 in which Ms.
Kashalkar had been informed as below:

“A fees of Rs. 2/- for each page (in A-4 or A-3 size paper) has
been prescribed for providing the information under the Right to
Information (Regulation of Fee and Cost) Rules, 2005. Since
the information received from CVC requested by you, would
require photocopying of 125 pages, an amount of Rs. 250/-
(Rupees two hundred fifty only) may please be deposited in
cash against proper receipt; or by demand draft or bankers
cheque or Indian Postal order payable to the Section Officer,
Central Vigilance Commission at New Delhi.”

Appellant then moved an appeal dated 15-6-08 before Shri V.K. Gupta,
Addl. Secretary, CVC, on the following grounds:

“1. At the outset I must state that I had asked for information
in 2 parts. Under section ‘A’ I had asked information
about step-by-step procedure of handling RTI application/
first appeal/ 2nd appeal etc as detailed therein. Point e
involved providing the copies of documents. Instead of
providing information on all the points a, b, c, d, the CPIO
with obvious malafide intention to delay/ deny information
has asked me remit Rs. 250/- without giving no. of pages
involved in point etc.

2. In part B of the application I had sought certain
information more particularly detailed on points A to e
therein. Each of this point does not require providing
copy of the document. However, instead of providing
information point by point and sum total at the end of the
para towards of photocopying charges, as the
Commission has done in the past in my other

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applications. Thus this also amounts to denial of
information with malafide motive of delaying the
information. Similarly if only demand for fee was to be
made it could have been made much earlier without
waiting for the expiry of 30 days period. Similarly he has
not made any request for extension of time for providing
the information in terms of section 7 (2) of RTI Act.
Instead he is blatantly sating that a reply will be provided
only after receipt of payment. Thus the reply part is
unnecessarily linked with provision of document part.
Thus information is held back for no convincing reason.
In other words it is arbitrarily withheld thereby violating
the provisions of the Act. The delaying tactic of denying
information adopted by the Commission is to shield the
erring officials of the Commission and Bank of India
officials is clearly visible from the Commission’s letter.”

By his order of 15-7-08 Shri V.K. Gupta, Addl. Secretary decided as
follows:

“2. On examining the documents and connected papers
pertaining to this appeal and the reply of CPIO with
reference to the RTI application of the appellant, I find
that CPIO has requested the appellant to deposit Rs.
250/- towards supplying the information sought under
various points. Further, on the request over telephone,
the CPIO furnished to the appellant vide letter dated
19.6.2008. I find the appellant has preferred an appeal
on CPIO’s interim communication dated 10.6.2008
requiring the appellant to deposit money and even after
providing complete details of information proposed to be
supplied vide letter dated 19.6.2008, appellant has not till
date deposited an amount of Rs. 250/- for the same.

3. As regards, the issues raised in appeal, I find that the
CPIO after collecting details of information from various branches of
the Commission has responded within 30 days to the application of the
appellant and there is no delay on this count. The next issue raised by
the appellant is that she had sought information under section A points

(a) to (d) i.e. information on step by step procedure of handling and
processing of RTI applications, first appeal, second appeal and
authority that approves draft reply in RTI matters and that this
information does not involve supply of copies etc. On considering this
issue, I am of the view that this Commission follows procedures
prescribed in the RTI Act, 2005 and Govt. of India rules prescribed
therein under Right to Information (regulation fee and cost) Rules 2005
in processing all matters connecting with RTI Applications, first appeal
and second appeal. Authorities appointed under the RTI Act like
CPIO’s and appellate authority approves the draft reply in respective
matters.

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4. In so far as the issue of not providing a speaking or point-
wise reply by CPIO is concerned, I find that CPIO had initially only sent
an interim letter dated 10.6.2008 to the appellant and had also stated
point-wise reply would be furnished later.

5. Taking into account all facts and circumstances of the
appeal, I direct the CPIO to provide all information proposed to be
supplied vide CPIO’s letter dated 10.6.2008 and 19.6.2008 to the
appellant within 10 days of issue of this order.”

In her second appeal before us appellant Ms. Kanchan Kashalkar’s
prayer is as follows:

“Under the circumstances I pray that the information left
out as stated above (A of B, E of B on page 3 C, D & E of B
sought by me be provided to me & suitable direction be
given to CVC for this purpose. The CPIO & AA be penalized
for handling the application/ appeal in a casual &
lackadaisical manner.”

However, in her grounds for appeal appellant had submitted that “upon
AA’s order CPIO provided copies of documents sought by me1. However, he
has not provided A of B part which is still withheld from me for reasons best
known to CPIO and AA viz the copy of note approved by the Commission
where in it was decided to display the names of penalized officers working in
organization under CVC jurisdiction on the CVC website as stated above in
prayer part which was not done until then. The note will give an idea of the
thought process that has goes into behind the action. ”

File No. CIC/WB/A/2009/00356
In this case the request of Ms. Kashalkar dated 1-5-08 (also received
by CVC on 13-5-08) is as below:

“Annual report of the Commission for the year 2006 and
Vigilance Administration activity of the Commission.”

The details sought have been elucidated in a series of questions A (1)
to (11) and B (A) to (I). In this case the response of CPIO dated 11-6-08 is
again point-wise as below:

“2. Para & point-wise reply to your application is as under: –

Para ‘A’
Point 1: The Annual Report of the Commission for the year 2006
was submitted to the President of India on 26.6.2007 and

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Underlined by us for emphasis

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forwarded to the Department of Personnel & Training (DoPT),
GOI on 4.12.2007 for laying the same in the Parliament.
Point 2: The Commission’s office order No. 74/12/05dated
21.12.2005 was issued with reference to the modification of the
definition of vigilance angle.

Point 3: Copies of file noting, internal note and related papers
consisting of nine pages is enclosed for information. You are
requested to send Rs. 18/- towards cost of supplying nine pages
(Rs. 2/- per page) in the prescribed code (Cash /DD/ IPO in the
name of Section Officer CVC, New Delhi).

Point 4: No such time frame has been fixed by the Commission
in this regard. However, in practice it depends on a case-to-
case basis.

Point 5: The normal channels of submission of files related to
each branch are also followed in monitoring of complaints. The
designations and authorities are available in the channel of
submission of files, information of which is given on Commission
website https://www.cvc.nic.in under RTI section.
Point 6: The Commission takes suitable action as deemed fit.
Point 7: No such specific data/ information is maintained in the
Commission on the points mentioned by the applicant and as
such there is no information.

Point 8: No modification has been made in the monthly report
format.

Point 9 & 10: Complaint/ representation sent in July 2006 was
processed by the Commission in the case file of Shri P. D.
Kashalkar, as the matters were connected/ closely related.
Hence, the said complaint of the applicant does not constitute or
include in the information o complaints received and disposed
reflected in table 5 at page 27 of the Annual Report 2006.
Point 10 (second): Non-vigilance is such complaints/ issues
wherein allegations are administrative in nature. Officials not
falling under Commission’s jurisdiction are the ones who belong
to the categories, which are not defined in section 8 of CVC Act,
2003.

Point 11: As the complaint of July 2006 was sent by the
Commission to the CVO, Bank of India for necessary action,
Commission does not expect any reply/ report on the same.
Current status etc. may, therefore, be obtained from the CVO,
Bank of India.

Para ‘B’
Point (A): There is no difference between circular and office
order issued by the Commission and implications of both are the
same.

Point (B), (C) & (D): The circular/s office order/ manual issued
by the Commission is advisory in nature and all organizations
are expected to closely adhere to the instructions issued. These
are guidelines, which help in improving vigilance administration
in the Ministries/ Departments/ Organizations etc. The CVO is

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responsible for overall guidance to the management for ensuring
effective vigilance administration.

Point (E): Information sought is not specific in nature. A
complaint can, however, be lodged with the Commission by any
citizen in case information of commission of any misconduct has
come to notice in respect of any official of the Commission or
CVO’s setup in any organization.

Point (F) & (G): The Commission has not entrusted the work of
enforcement of its circular/ guidelines to any outside agency.
Commission monitors the work done by the CVO’s through
prescribed returns and also through annual zonal review
meetings.

Point (H): The Commission/ orders are meant for
implementation by the CVO’s in improving vigilance
administration of the organizations concerned.
Point (I): In case, any deviation/ overruling of Commission’s
guidelines are brought to the notice, the Commission itself
decides further course of action in the matter.”

Nevertheless Ms. Kashalkar in her first appeal before Shri V.K. Gupta,
Addl. Secretary has pleaded that “the information should be provided point by
point covering all specific points stated. Now when a specific case is referred
in this application only, where the response of the Commission is contrary to
what is stated by the CPIO thereby giving an impression that CVC needs
outside force to act upon its own Circulars.”

Upon this Shri V.K. Gupta in his order of 18-8-08 has decided as
follows:

“I find that the issues raised in the appeal as mentioned in para
4 above, are all in the form of queries, questionnaire and
clarifications and do not construe information as defined u/s 2 (f)
of RTI Act. Such nature of information as asked is neither held
nor denied by the CPIO. CIC in its decision in file no.
CIC/AT/A/2006/00154 dated 3.11.2006 in the case of Shri R. K.
Mirg v/s Director & CPIO, MHA, Rehabilitation wing and JS
(FFR) & Appellate Authority, MHA, has held that section 2 (f) of
the RTI Act allow an appellant access to information ‘held’ by a
public authority. Similarly, Rules and Acts are already in the
public domain and freely accessible, could not be said to be
‘held’ by any public authority. Further, it is not open to the
appellant to seek ‘interpretation’ of a law or rule from the public
authority under the guise of information, as relevant under RTI
Act. CIC I ncase4 No. CIC/AT/A/2006/00045 dated 21.4.2006
on the appeal of Dr. D. V. Rao has clearly held that ‘it is not
open to an appellant to ask, in the guise of seeking information,
questions to the public authorities about the nature and quality

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of their actions. The RTI Act does not cast on the public
authority any obligation to answer queries, as in this case, in
which a petitioner attempts to elicit answers to his questions with
prefixes, such as, why, what, when and whether. The
petitioner’s right extends only to seeking information as defined
in section 2 (f) either by pinpointing the file, document, paper or
record, etc., or by mentioning by type of information as may be
available with the specified public authority.

In view of above, the information provided/ reply given by the
CPIO is held to be in order.”

Appellant’s prayer in her second appeal in this case is as below:
“1) The CPIO CVC be directed to provide the necessary
information sought by me under part of the
application mischievously and deliberately omitted
by the AA.

2) CPIO/ AA CVC be penalized for deliberately and
purposefully providing false and misleading information.

3) Departmental action be initiated against CPIO and AA
for providing false information.”

Both the appeals have been clubbed and were scheduled for hearing
on 11-5-2010 with arrangement for videoconference with NIC studio,
Bhandara. Both parties presented themselves at the respective venues but
the matter could not be heard because of technical failure at NIC, Bhandara.
This was, in fact, the second attempt as a similar hearing the day before had
been adjourned on the same grounds. However, both appeals were heard
together on 4th June 2010. The following are present:

Appellant (at NIC Studio, Bhandara)
Shri P. D. Kashalkar
Respondents
Shri Vineet Mathur, Director & CPIO
Shri J. Vinod Kumar, Under Secretary

File No. CIC/WB/A/2009/00359
Shri Vinod Kumar, Under Secretary, CVC submitted that subsequent to
the orders of Appellate Authority Shri V.K. Gupta the complete information
held by the CVC on the issues agitating appellant Ms. Kanchan Kashalkar
had been provided to her through letter of 24-7-2008, which Shri Kashalkar
conceded having received. He, however, reiterated that the information cited
in his prayer i.e. (A) of B, (B) of B, (C), (D) and (E) of B had not been received
by him. On this, respondent Shri Vinod Kumar submitted that the only piece

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of information that had not been given was (E) of B, which is held in fiduciary
capacity and had been refused on the grounds of Bank of India having
pleaded as much. In this case the letter of the Bank of India was also shown
to us in which the Bank had stated that disclosing this information would
compromise the entire disciplinary procedures apart from invading the privacy
of the individuals concerned.

File No. CIC/WB/A/2009/00356
In this case appellant Shri Kashalkar submitted that order of Appellate
Authority was misplaced because CVC should be in possession of the
information that he has sought. As an example he cited question No. 10 of A
in which he had sought the tentative time when this case would attract the
vigilance angle. The response of CPIO Shri Vinod Kumar had been as
follows:

“Complaint/ representation sent in July 2006 was processed by
the Commission in the case file of Shri P. D. Kashalkar as the
matters were connected/ closely related. Hence, the said
complaint of the applicant does not constitute or include in the
information on complaints received and disposed reflected in
table 5 at page 27 of the Annual Report 2006.”

It was clarified by Shri Vinod Kumar in the hearing that this case had
been referred to the Bank of India and was, therefore, not registered as a
complaint received and disposed of by the CVC. Shri Kashalkar, however,
was insistent to know the reason why the Bank of India had not been asked
about the time of disposal since the matter was referred to them. In his view
such information should have been held by the CVC.

DECISION NOTICE
File No. CIC/WB/A/2009/00359
With regard to this file quite clearly Appellate Authority Shri V.K. Gupta has
directed that all the information that is disclosable should be disclosed. CPIO
Shri Vinod Kumar contends that this is what he has done. The plea of
appellant Ms. Kanchan Kashalkar in this case is that the orders of the
Appellate Authority have not been fully complied with. It is the responsibility
of the First Appellate Authority, not of this Commission, to ensure that the

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orders passed by it are duly complied with by the CPIO. The Commission,
therefore, has decided to remand the case back to the first Appellate
Authority to ensure that its orders under section 19(1) are duly complied
with and the requested information furnished in terms of the order so passed,
with the qualification that now, in accordance with Sec 7(6) of the RTI Act,
2005, no fees will be charged for any further information provided.
.

If the compliance is not ensured within 15 days from the date of receipt
of this order, the appellate authority shall approach this Commission for
initiation of proceedings under section 20 of the RTI Act for imposition of
penalty and/or recommending appropriate disciplinary action. This will be
without prejudice to the right of the appellate authority to initiate other penal
action under the Indian Penal Code against the PIO if he has found wilful
violation of lawful orders promulgated by a public servant while exercising
statutory powers. This appeal is disposed of accordingly.

File No. CIC/WB/A/2009/00356
In appeal No. 356 on the other hand we find that point wise information
has indeed been given to appellant Ms. Kashalkar as asked for. Shri
Kashalkar has been unable to establish before this Commission that there still
remains some information that is held by the CVC which has not been
provided to him. His arguments have instead been based on recrimination for
the manner of functioning of the CVC.

An important question that arises in this context is as to whether what
the appellant is asking can be treated as an “information” within the meaning
of Section 2(f) of the Right to Information Act, 2005, which appellate authority
has decided that it does not. The term “information” as defined by Section 2(f)
includes “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.”

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In order to understand the essence of the Act, it is important to read
Section 2(f) along with Sections 2(i) and 2(j). Section 2(j) reads as under: –

” ‘right to information’ means the right to information accessible
under this Act which is held by or under the control of any public
authority and includes the right to –

(i) inspection of work, documents, records;

(ii) taking notes, extracts or certified copies of documents or
records;

(iii) taking certified samples of material;

(iv) obtaining information in the form of diskettes, floppies, tapes,
video cassettes or in any other electronic mode or through printouts
where such information is stored in a computer or in any other device.”

To be read with this is Section 2(i), which reads as under:-
“records” includes –

“(a) any document, manuscript and file;

(b) any microfilm, microfiche and facsimile copy of a
document;

(c) any reproduction of image or images embodied in
such microfilm (whether enlarged or not); and

(d)any other material produced by a computer or any
other device.”

From the above, it is clear that the Right to Information Act confers on
a citizen only access to such information that is held by or is under the control
of a Public Authority. Section 2(f), on the other hand, defines “information” as
something which is available in a material form. “Information”, therefore, can
be something that is available in a material form and is retrievable from the
official records. It cannot be something that is not a part of the record. An
“opinion” or an “advice” which is not recorded cannot, therefore, be treated as
“information” within the meaning of Section 2(f) of the RTI Act. Similarly, the
CPIO cannot either confirm or deny some perception of the appellant, which
he has about a particular set of information. The role of the CPIO under the
Right to Information Act, 2005 is of information provider and he cannot be
treated as a creator of the information. If a matter has been decided, he can
communicate the decision, but if the matter is still to be decided, he cannot
provide a decision. Similarly, he also cannot either justify a decision already
taken or provide reasons for such decision. That is clearly outside the

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purview of the CPIO under the RTI Act. Under these circumstances this
appeal is without substance and is hereby dismissed.

Announced in the hearing. Notice of this decision be given free of cost
to the parties.

(Wajahat Habibullah)
Chief Information Commissioner
4-6-2010

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 K.P. Shreyaskar)
Joint Registrar
4-6-2010

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