CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2007/001383 in remand
Right to Information Act 2005 - Section 19
Appellant: Shri S.M. Aftab Ahmed
Respondent: Deputy Commissioner of Police (DCP), West Distt
Decision Announced 7.12.'09
Facts
In our concluding decision of 17-4-2009 in Appeal heard in File No.
CIC/WB/A/2007/001383 we had held as follows:-
Under Sec. 20 sub sec. (1) of the RTI Act, this Commission at the
time of deciding an appeal is required to form an opinion on
whether the PIO has "without any reasonable cause" failed to
furnish information within the time limit specified, under sub sec. (1)
of Sec. 7 "it shall impose a penalty of Rs. 250/- each day till
application is received or information is furnished". Because in this
case it is admitted that there has been a delay in supply of
information for which First Appellate Authority Shri Rajesh Kumar,
Jt. Commissioner of Police has already found the two officers to be
at fault, there is little discretion left with this Commission in the
matter. The application was received by the SHO Paschim Vihar on
1.9.07 and marked the same day to ASI Ram Phal (sic). ASI Ram
Phool has not taken any action in this matter till 1.11.07, although a
response had become due by 1.10.07. ASI Ramphal (sic) is,
therefore, liable to pay a penalty @ Rs. 250/- per day amounting to
Rs. 7750 for a delay of 31 days in supply of information. Thereafter
no reply was sent by SHO Paschim Vihar Shri Sanjiv Tomar till
such time as Appellate Authority Shri Rajesh Kumar, Jt. C.P. issued
his own order on 6.11.07, consequent to which a reply was sent
dated 14.11.07 by Shri Robin Hibu, PIO & DC (WD). Shri Sanjiv
Tomar has, therefore, rendered himself liable for a penalty from
2.11.07 till 14.11.07 when the reply was finally sent to appellant
Shri Aftab Ahmed @ Rs. 250/- a day amounting to Rs. 3000/-.
Shri Rajesh Kumar, Jt. Commissioner of Police (Southern Range)
is directed to recover these amounts from Shri Sanjiv Tomar, SHO
(Rs 3,000'-) and Shri Ram Phool, ASI (Rs 7,750-), either directly or
rd
through deduction from the salaries of each by 3 May, 2009. He
will remit the same to Pay & Accounts Officer, Central
Administrative Tribunal, C-1, Hutments, Dalhousie Road, New
Delhi-110011 under intimation to Shri Pankaj Shreyaskar, Deputy
Secretary and Joint Registrar of this Commission."
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Upon this, both Shri Sanjeev Tomar and Shri Ram Phool have moved
the High Court of Delhi in WP (C) No. 10158/2009 and WP (C) No
10429/2009 pleading that the order of 17-4-2009 imposing penalty has been
passed without jurisdiction and without hearing them. Shri Sanjiv Khanna, J.
in his order of 30-10-2009 found as follows;-
“It is apparent that the two petitioners were not heard before
penalty order dated 17th April 2009 was passed against them.
As the two petitioners were not given opportunity of hearing,
they were not able to present their version and facts stated in
the present writ petition. Obviously there is non-compliance of
principles of natural justice. First proviso to section 20 (1) of the
Right to Information Act 2005 provides for reasonable
opportunity of being heard before any penalty is imposed. The
petitioners were not PIOS and no notice was issued to the
petitioners before the penalty order was passed.”
On this basis the order of 17-4-2009 was ‘partly set aside and
directions imposing penalty are quashed’. The matter was then remanded to
this Commission with the following directions:-
“6. The petitioners will appear before the Registrar, Central
Information Commission on 25th November, 2009 at 2
p.m. when date and time for hearing will be fixed.
7. It is clarified that this court has not expressed any opinion
on the merits and whether the petitioners are liable to
penalty under section 20 of the Right to Information Act,
2005.”
The matter was heard in this Commission on 3-12-2009. The following
are present;
Appellant
Shri S.M. Aftab Ahmed.
Shri S. M. Aasif
Respondents
Shri S. K. Kapoor, ACP, Punjabi Bagh.
Shri Sanjeev Kumar Tomar, Inp/ Special Staff, N-W District.
Shri Ram Phool, ASI, P. S. Anand Parbat.
SI Prabhat Kumar, I/C DIC/ West
Shri Sanjiv Tomar submitted that he was not the person responsible for
providing the information as he was not the PIO. The RTI request has simply
been forwarded to him not as a transfer under section 5 (4) of the RTI Act but
simply as a part of general correspondences on which he, therefore, took
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action in terms of routine responses to general applications. He submitted
that this matter has been dealt with in detail in his petition before the High
Court of Delhi, of which he presented a copy. Shri Sanjiv Tomar however,
agreed that, as recorded in our decision notice, he had indeed appeared
before us on 16-4-2009. He also agreed with the comments as recorded by
us regarding his submission before us on that date. Shri Ram Phool, ASI
submitted that he had nothing to add to the submissions of Shri Sanjiv Kumar
Tomar.
We have examined the copy of the Petition “Sanjiv Tomar vs. Chief
Information Commissioner” submitted before the High Court of Delhi. In this
matter petitioner has submitted as follows:
“C) That as the petitioner being not the ‘Public Information
Officer’ appointed under the Act marked the same to his
subordinate namely ASI Ram Phool for taking necessary
action and the said subordinate did not took any action and
therefore, the require information as sought by the
Respondent No. 2 was not provided to him within the
stipulated period.”
He has then gone on to list the following grounds on which he has
challenged our decision of 17-4-09:
“A. Because the Learned Respondent No. 1 being a Statutory
Quasi Judicial Authority appointed under the Act, while
passing the impugned order dated 17.4.2009 imposing
penalty upon the petitioner failed to take into consideration
the facts and circumstances of the case as reflected from the
pleadings and documents of the parties in the right
perspective manner and thereby committed a grave
jurisdictional error by wrongly observing that there has been
a delay in supply of information to the respondent no. 2 on
part of the petitioner, therefore, petitioner rendered himself
liable for a penalty of Rs. 250/- per day from the period
2.11.2007 till 14.11.2007. it would be pertinent to appraise
here that Petitioner before this Hon’ble Court is not
authorized officer under the act for providing of information
as sought by the Respondent no. 2. Thus the impugned
order is liable to be set aside by the Hon’ble Court.
B. Because the Learned Respondent No. 1 while passing the
impugned order dated 17.4.2009 failed to take into
consideration that the application filed by Respondent No. 2
under Right to Information Act, 2005 was misconceived in
law as well as in facts which is apparent from the fact that he
was not seeking any information but was sought to obtain3
certified copies of the letter dated 18.7.2002 and enclosures
thereof copy of which was marked to the office of SHO,
Paschim Vihar on 18.7.2002. it would be pertinent to state
that the said letter dated 18.7.2002 was admittedly
addressed to SSP, Ghaziabad (UP) and copy thereof was
marked to the office of SHO, therefore, office of the SSP
Ghaziabad was the appropriate authority for the Respondent
No. 2 in respect to the information or document as sought by
Respondent No. 2 in the said application. The impugned
order dated 17.4.2009 passed by the Respondent No. 1,
thus suffers from fundamental error of jurisdiction and,
therefore, the same is liable to be set aside.
C. Because the Ld. Respondent No. 1 while passing the
impugned Order dated 17.4.2009, failed to take into
consideration that admittedly Respondent No. 2 had made
an application under the Act addressed to PIO, SHO office
Police Station Paschim Vihar who is not a designated
‘Central Public Information Officer’ as defined in section 2 (f)
and appointed under section 2 of Right to Information Act,
2005. Therefore, petitioner after receipt of the application of
Respondent No. 2 being not the designated officer under the
Act marked the said application to his subordinate namely
ASI Ram Phool for necessary action on 1.9.2007 treating the
same as normal application. It would be pertinent to state
that Delhi Police in compliance with section 5 of the Act have
appointed Dy. Commissioner of Police West District Delhi as
‘Central Public Information Officer’ (CPIO) and because the
Respondent No. 2 herein did not followed the prescribed
method for filing his application under Right to Information
Act, 2005, therefore the information could not be supplied to
him within the prescribed period.
D. Because the Ld. Respondent No. 1 while passing the
impugned order dated 17.4.2009 failed to take into
consideration that ASI Ram Phool had made an enquiry and
submitted his report along with original application of the
Respondent No. 2 stating that he had visited House No. 20,
Balvinder Apartment, Paschim Vihar, New Delhi and found
that Shri S. S. Dhir S/o Shri Gurmukh Singh had left the
house three years ago to some unknown place after sale of
the house. Thus the impugned order in the light of the
above fact is liable to set aside by this Hon’ble Court.
E. Because the Ld. Respondent No. 1 while passing the
impugned order dated 17.4.2009 failed to take into
consideration of the report submitted by ASI Ram Phool
stating that information as sought by the Respondent No. 2
pertains to sale of property situated in Ghaziabad (UP) and
besides this no relevant information pertaining to the
property above was available with the P. S. Paschim Vihar.
Furthermore, the Ld. Respondent No. 1 failed to ignore to
appreciate the reasons of informing by Shri Dhir Singh about
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the transaction of property situated in UP is not mentioned in
the letter addressed to the SSP Ghaziabad and copy thereof
marked to the office of the petitioner. Hence the question of
providing certified copies of the documents sought by
Respondent No. 2 by the petitioner does not arise for the
reasons that record of such miscellaneous communication or
correspondence were found not to be traceable.
F. Because the Ld. Respondent No. 1 while passing the
impugned order dated 17.4.2009 failed to take into
consideration of the fact that after passing of the order dated
6.11.2007 passed by the First Appellate Authority, the CPIO
of the department has duly informed the Respondent No. 2
vide communication dated 14.11.2007 stating that due to
record being old one is not traceable in the police station and
for this information and documents sought by him cannot be
supplied thereby disposed of the request made by the
Respondent No.2.”
An identical line has been taken by both Shri Sanjiv Tomar and Ram
Phool in writ, whose prayer before the Hon’ble High Court is as below:
(a) Call for the records and quash and set aside the
impugned order dated 17.4.2009 passed by Respondent
No. 1 in Appeal No. CIC/WB/A/2007/01383 dated
30.11.2007.
(b) And stay the operation of the impugned order dated
17.4.2009 till the disposal of the present petition, or pass
any other and further appropriate orders in view of facts
and circumstances stated hereinabove.
(c) Pass such other order, as this Hon’ble Court may deem
fit and proper in the facts and circumstances of the case
orders.”
Thus, whereas the Writ, in fact, had challenged our decision notice of
17-4-09 on grounds of merit, the order of learned Justice Sanjiv Khanna has
not expressed any opinion on this.
DECISION NOTICE
We find from our decision notice dated 6-3-09 followed by Adjunct
Order of 17-4-09 that in fact petitioners before the High Court S/Shri Sanjiv
Tomar and Ram Phool had indeed been given the opportunity to appear
before us at which time Shri Sanjiv Tomar had appeared and submitted as
follows, as recorded by us:
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“Shri Sanjiv Tomar submitted that he personally visited Ghaziabad
and the documents sought by appellant Shri Aftab Ahmed have
been provided to him. However, on the question of delay he
submitted that this was a case of delay in office procedure and
although he admits that there has been a default at the level of
SHO and ASI, 1 this arose because of an oversight and not for any
malafide reason.”
It is however, correct that Shri Ram Phool had not so appeared. We
have based reliance on the order of Appellate Authority Shri Rajesh Kumar,
JCP, Southern Range of 6-11-07 in which the Appellate Authority has
recorded in his decision that “as per record available on file the SHO/PS
Paschim Vihar and ASI, Ram Phool both are on fault. They handled the RTI
request of the appellant very casually”.
In this case both petitioners have taken the plea that they are not PIOs
and, therefore, not liable for penalty. In presenting his case before us Shri
Sanjiv Tomar supported by Shri Ram Phool have submitted that they have
received the application of appellant Shri Aftab Ahmed only as ordinary mail
and not earmarked as an RTI Application. He has argued also that
provisional certified copies of documents cannot be classified as information.
The issue before us in this case was clearly the response to an RTI
application of 31-8-07 submitted by Shri Aftab Ahmed of Rajinder Nagar,
Sahibabad, Ghaziabad. The merit of the information sought is not in question
at this stage nor was that the issue addressed in our decision of 17-4-09.
Besides, certified copies of documents are decidedly part of a ‘record’ as
defined in Sec 2(i) and accessible under ‘right to information as mandated u/s
2(j) (ii). Whether the information sought was information or not as defined in
Section 2 (f) of the RTI Act or whether applicant Shri Aftab Ahmed had a right
to access this information as defined in Section 2 (j) was expected to have
been responded to in the first instance by the CPIO. This was not the
decision. Besides, we have also in our decision notice of 6-3-09 agreed that
“quite clearly a copy of the certified document the SHO no longer holds for
whatever reason cannot now be supplied to appellant Shri Aftab Ahmed”.
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Underlined by us for emphasis
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In that order we have also issued notice to the present petitioners Shri
Sanjiv Tomar and Ram Phool (incorrectly spelled as Ram Phal in our decision
of 6-3-09). In response Shri Sanjiv Tomar did appear before us as mentioned
above but not Shri Ram Phool. The plea for exemption from penalty,
therefore, rests clearly only on the ground that the petitioners are not
designated as PIO or APIO. In this case, however, the reference to the then
SHO and then ASI can be made by the CPIO, u/s 5 (4) which reads as follows:
(4) The Central Public Information Officer or State Public
Information Officer, as the case may be, may seek the
assistance of any other officer as he or she considers
it necessary 2 for the proper discharge of his or her
duties.
Following from this requirement is Section 5 (5), which reads as follows:
(5) Any officer, whose assistance has been sought under
sub-section (4), shall render all assistance to the Central
Public Information Officer or State Public Information
Officer, as the case may be, seeking his or her
assistance and for the purposes of any contravention
of the provisions of this Act, such other officer shall
be treated as a Central Public Information Officer or
State Public Information Officer, as the case may
be 3 ..
Thus, both these officers can and have been treated as PIOs in the
present case. We have in our order of 17-4-09 discussed in some detail the
ramification of sub-Section (1) of Section 20 and to what extent this
Commission is at liberty to rule on imposition of penalty or otherwise. We
have come to the conclusion that there was little discretion left with this
Commission in the matter in face of the fact that delay in response stood
acknowledged. Upon hearing the parties, however, the additional fact that
has been raised is whether Section 5 (5) will apply if the officers whose
assistance has been sought u/s 5 (4) have not been informed that they are to
be held so liable. We cannot in good conscience take such a view.
Nevertheless, officers of a Public Authority particularly one with wide public
interface such as the Police Department cannot be allowed this license. This
is clearly a procedure regarding which the matter is to be decided within the
2
Emphasis added
3
Emphasis added by us
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Police Department. For this reason a copy of this decision notice will be
endorsed to Shri Y.S. Dadwal, Commissioner of Police, Delhi u/s 25 (5) as a
recommendation his consideration. But for the substance of this petition,
however, having heard both the parties we must come to the conclusion that,
given the fact that the matter has been concluded to the satisfaction of
appellant Shri Aftab Ahmed, they have nevertheless rendered themselves
liable to disciplinary action u/s 20 (2), if not penalty. We, therefore, direct that
Shri Rajesh Kumar, Jt. Commissioner of Police (Southern Range) will
take such disciplinary action as deemed fit, under intimation to Shri Pankaj
Shreyaskar, Deputy Secretary and Joint Registrar of this Commission by or
before 21.1`2.’09. This Appeal is disposed of accordingly in remand.
Reserved in the hearing to enable study of respondents’ petitions
before the High Court of Delhi, this decision is announced this seventh day of
December 2009. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
7-12-2009
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 K.P. Shreyaskar)
Joint Registrar
7-12-2009
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