{"id":161675,"date":"2009-12-07T00:00:00","date_gmt":"2009-12-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-s-m-aftab-ahmed-vs-deputy-commissioner-of-police-on-7-december-2009"},"modified":"2015-09-26T16:47:37","modified_gmt":"2015-09-26T11:17:37","slug":"shri-s-m-aftab-ahmed-vs-deputy-commissioner-of-police-on-7-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-s-m-aftab-ahmed-vs-deputy-commissioner-of-police-on-7-december-2009","title":{"rendered":"Shri S.M. Aftab Ahmed vs Deputy Commissioner Of Police … on 7 December, 2009"},"content":{"rendered":"
Central Information Commission<\/div>\n
Shri S.M. Aftab Ahmed vs Deputy Commissioner Of Police … on 7 December, 2009<\/div>\n
                CENTRAL INFORMATION COMMISSION\n                   Appeal No. CIC\/WB\/A\/2007\/001383 in remand\n                   Right to Information Act 2005 - Section 19\n\nAppellant:            Shri S.M. Aftab Ahmed\nRespondent:           Deputy Commissioner of Police (DCP), West Distt\n                            Decision Announced 7.12.'09\n\n\nFacts\n        In our concluding decision of 17-4-2009 in Appeal heard in File No.\nCIC\/WB\/A\/2007\/001383 we had held as follows:-\n        Under Sec. 20 sub sec. (1) of the RTI Act, this Commission at the\n        time of deciding an appeal is required to form an opinion on\n        whether the PIO has \"without any reasonable cause\" failed to\n        furnish information within the time limit specified, under sub sec. (1)\n        of Sec. 7 \"it shall impose a penalty of Rs. 250\/- each day till\n        application is received or information is furnished\". Because in this\n        case it is admitted that there has been a delay in supply of\n        information for which First Appellate Authority Shri Rajesh Kumar,\n        Jt. Commissioner of Police has already found the two officers to be\n        at fault, there is little discretion left with this Commission in the\n        matter. The application was received by the SHO Paschim Vihar on\n        1.9.07 and marked the same day to ASI Ram Phal (sic). ASI Ram\n        Phool has not taken any action in this matter till 1.11.07, although a\n        response had become due by 1.10.07. ASI Ramphal (sic) is,\n        therefore, liable to pay a penalty @ Rs. 250\/- per day amounting to\n        Rs. 7750 for a delay of 31 days in supply of information. Thereafter\n        no reply was sent by SHO Paschim Vihar Shri Sanjiv Tomar till\n        such time as Appellate Authority Shri Rajesh Kumar, Jt. C.P. issued\n        his own order on 6.11.07, consequent to which a reply was sent\n        dated 14.11.07 by Shri Robin Hibu, PIO & DC (WD). Shri Sanjiv\n        Tomar has, therefore, rendered himself liable for a penalty from\n        2.11.07 till 14.11.07 when the reply was finally sent to appellant\n        Shri Aftab Ahmed @ Rs. 250\/- a day amounting to Rs. 3000\/-.\n\n        Shri Rajesh Kumar, Jt. Commissioner of Police (Southern Range)\n        is directed to recover these amounts from Shri Sanjiv Tomar, SHO\n        (Rs 3,000'-) and Shri Ram Phool, ASI (Rs 7,750-), either directly or\n                                                            rd\n        through deduction from the salaries of each by 3 May, 2009. He\n        will remit the same to Pay & Accounts Officer, Central\n        Administrative Tribunal, C-1, Hutments, Dalhousie Road, New\n        Delhi-110011 under intimation to Shri Pankaj Shreyaskar, Deputy\n        Secretary and Joint Registrar of this Commission.\"\n\n\n\n\n                                         1\n       Upon this, both Shri Sanjeev Tomar and Shri Ram Phool have moved\nthe High Court of Delhi in WP (C) No. 10158\/2009 and WP (C) No\n10429\/2009 pleading that the order of 17-4-2009 imposing penalty has been\npassed without jurisdiction and without hearing them. Shri Sanjiv Khanna, J.\n<\/pre>\n
in his order of 30-10-2009 found as follows;-\n<\/p>\n
      “It is apparent that the two petitioners were not heard before
\n      penalty order dated 17th April 2009 was passed against them.
\n      As the two petitioners were not given opportunity of hearing,
\n      they were not able to present their version and facts stated in
\n      the present writ petition. Obviously there is non-compliance of
\n      principles of natural justice. First proviso to section 20 (1) of the
\n      Right to Information Act 2005 provides for reasonable
\n      opportunity of being heard before any penalty is imposed. The
\n      petitioners were not PIOS and no notice was issued to the
\n      petitioners before the penalty order was passed.”<\/p><\/blockquote>\n
      On this basis the order of 17-4-2009 was ‘partly set aside and
\ndirections imposing penalty are quashed’. The matter was then remanded to
\nthis Commission with the following directions:-\n<\/p>\n
      “6.      The petitioners will appear before the Registrar, Central
\n               Information Commission on 25th November, 2009 at 2
\n               p.m. when date and time for hearing will be fixed.\n<\/p><\/blockquote>\n
      7.       It is clarified that this court has not expressed any opinion
\n               on the merits and whether the petitioners are liable to
\n               penalty under section 20 of the Right to Information Act,
\n               2005.”<\/p><\/blockquote>\n
      The matter was heard in this Commission on 3-12-2009. The following
\nare present;\n<\/p>\n
      Appellant
\n      Shri S.M. Aftab Ahmed.\n<\/p><\/blockquote>\n
      Shri S. M. Aasif<\/p>\n
      Respondents
\n      Shri S. K. Kapoor, ACP, Punjabi Bagh.\n<\/p><\/blockquote>\n
      Shri Sanjeev Kumar Tomar, Inp\/ Special Staff, N-W District.
\n      Shri Ram Phool, ASI, P. S. Anand Parbat.<\/p><\/blockquote>\n
      SI Prabhat Kumar, I\/C DIC\/ West<\/p>\n
      Shri Sanjiv Tomar submitted that he was not the person responsible for
\nproviding the information as he was not the PIO. The RTI request has simply
\nbeen forwarded to him not as a transfer under section 5 (4) of the RTI Act but
\nsimply as a part of general correspondences on which he, therefore, took<\/p>\n
                                         2<\/span>
\n action in terms of routine responses to general applications. He submitted
\nthat this matter has been dealt with in detail in his petition before the High
\nCourt of Delhi, of which he presented a copy. Shri Sanjiv Tomar however,
\nagreed that, as recorded in our decision notice, he had indeed appeared
\nbefore us on 16-4-2009. He also agreed with the comments as recorded by
\nus regarding his submission before us on that date. Shri Ram Phool, ASI
\nsubmitted that he had nothing to add to the submissions of Shri Sanjiv Kumar
\nTomar.\n<\/p>\n
      We have examined the copy of the Petition “Sanjiv Tomar vs. Chief
\nInformation Commissioner” submitted before the High Court of Delhi. In this
\nmatter petitioner has submitted as follows:\n<\/p>\n
      “C)    That as the petitioner being not the ‘Public Information
\n             Officer’ appointed under the Act marked the same to his
\n             subordinate namely ASI Ram Phool for taking necessary
\n             action and the said subordinate did not took any action and
\n             therefore, the require information as sought by the
\n             Respondent No. 2 was not provided to him within the
\n             stipulated period.”<\/p><\/blockquote>\n
      He has then gone on to list the following grounds on which he has
\nchallenged our decision of 17-4-09:\n<\/p>\n
      “A.    Because the Learned Respondent No. 1 being a Statutory
\n             Quasi Judicial Authority appointed under the Act, while
\n             passing the impugned order dated 17.4.2009 imposing
\n             penalty upon the petitioner failed to take into consideration
\n             the facts and circumstances of the case as reflected from the
\n             pleadings and documents of the parties in the right
\n             perspective manner and thereby committed a grave
\n             jurisdictional error by wrongly observing that there has been
\n             a delay in supply of information to the respondent no. 2 on
\n             part of the petitioner, therefore, petitioner rendered himself
\n             liable for a penalty of Rs. 250\/- per day from the period
\n             2.11.2007 till 14.11.2007. it would be pertinent to appraise
\n             here that Petitioner before this Hon’ble Court is not
\n             authorized officer under the act for providing of information
\n             as sought by the Respondent no. 2. Thus the impugned
\n             order is liable to be set aside by the Hon’ble Court.
\n      B.     Because the Learned Respondent No. 1 while passing the
\n             impugned order dated 17.4.2009 failed to take into
\n             consideration that the application filed by Respondent No. 2
\n             under Right to Information Act, 2005 was misconceived in
\n             law as well as in facts which is apparent from the fact that he
\n             was not seeking any information but was sought to obtain<\/p>\n
                                       3<\/span>
\n      certified copies of the letter dated 18.7.2002 and enclosures
\n     thereof copy of which was marked to the office of SHO,
\n     Paschim Vihar on 18.7.2002. it would be pertinent to state
\n     that the said letter dated 18.7.2002 was admittedly
\n     addressed to SSP, Ghaziabad (UP) and copy thereof was
\n     marked to the office of SHO, therefore, office of the SSP
\n     Ghaziabad was the appropriate authority for the Respondent
\n     No. 2 in respect to the information or document as sought by
\n     Respondent No. 2 in the said application. The impugned
\n     order dated 17.4.2009 passed by the Respondent No. 1,
\n     thus suffers from fundamental error of jurisdiction and,
\n     therefore, the same is liable to be set aside.\n<\/p><\/blockquote>\n
C.   Because the Ld. Respondent No. 1 while passing the
\n     impugned Order dated 17.4.2009, failed to take into
\n     consideration that admittedly Respondent No. 2 had made
\n     an application under the Act addressed to PIO, SHO office
\n     Police Station Paschim Vihar who is not a designated
\n     ‘Central Public Information Officer’ as defined in section 2 (f)
\n     and appointed under section 2 of Right to Information Act,
\n     2005. Therefore, petitioner after receipt of the application of
\n     Respondent No. 2 being not the designated officer under the
\n     Act marked the said application to his subordinate namely
\n     ASI Ram Phool for necessary action on 1.9.2007 treating the
\n     same as normal application. It would be pertinent to state
\n     that Delhi Police in compliance with section 5 of the Act have
\n     appointed Dy. Commissioner of Police West District Delhi as
\n     ‘Central Public Information Officer’ (CPIO) and because the
\n     Respondent No. 2 herein did not followed the prescribed
\n     method for filing his application under Right to Information
\n     Act, 2005, therefore the information could not be supplied to
\n     him within the prescribed period.\n<\/p>\n
D.   Because the Ld. Respondent No. 1 while passing the
\n     impugned order dated 17.4.2009 failed to take into
\n     consideration that ASI Ram Phool had made an enquiry and
\n     submitted his report along with original application of the
\n     Respondent No. 2 stating that he had visited House No. 20,
\n     Balvinder Apartment, Paschim Vihar, New Delhi and found
\n     that Shri S. S. Dhir S\/o Shri Gurmukh Singh had left the
\n     house three years ago to some unknown place after sale of
\n     the house. Thus the impugned order in the light of the
\n     above fact is liable to set aside by this Hon’ble Court.
\nE.   Because the Ld. Respondent No. 1 while passing the
\n     impugned order dated 17.4.2009 failed to take into
\n     consideration of the report submitted by ASI Ram Phool
\n     stating that information as sought by the Respondent No. 2
\n     pertains to sale of property situated in Ghaziabad (UP) and
\n     besides this no relevant information pertaining to the
\n     property above was available with the P. S. Paschim Vihar.
\n     Furthermore, the Ld. Respondent No. 1 failed to ignore to
\n     appreciate the reasons of informing by Shri Dhir Singh about<\/p>\n
                               4<\/span>
\n              the transaction of property situated in UP is not mentioned in
\n             the letter addressed to the SSP Ghaziabad and copy thereof
\n             marked to the office of the petitioner. Hence the question of
\n             providing certified copies of the documents sought by
\n             Respondent No. 2 by the petitioner does not arise for the
\n             reasons that record of such miscellaneous communication or
\n             correspondence were found not to be traceable.\n<\/p>\n
      F.     Because the Ld. Respondent No. 1 while passing the
\n             impugned order dated 17.4.2009 failed to take into
\n             consideration of the fact that after passing of the order dated
\n             6.11.2007 passed by the First Appellate Authority, the CPIO
\n             of the department has duly informed the Respondent No. 2
\n             vide communication dated 14.11.2007 stating that due to
\n             record being old one is not traceable in the police station and
\n             for this information and documents sought by him cannot be
\n             supplied thereby disposed of the request made by the
\n             Respondent No.2.”\n<\/p>\n
      An identical line has been taken by both Shri Sanjiv Tomar and Ram
\nPhool in writ, whose prayer before the Hon’ble High Court is as below:\n<\/p>\n
      (a)    Call for the records and quash and set aside the
\n             impugned order dated 17.4.2009 passed by Respondent
\n             No. 1 in Appeal No. CIC\/WB\/A\/2007\/01383 dated
\n             30.11.2007.\n<\/p><\/blockquote>\n
      (b)    And stay the operation of the impugned order dated
\n             17.4.2009 till the disposal of the present petition, or pass
\n             any other and further appropriate orders in view of facts
\n             and circumstances stated hereinabove.\n<\/p><\/blockquote>\n
      (c)    Pass such other order, as this Hon’ble Court may deem
\n             fit and proper in the facts and circumstances of the case
\n             orders.”<\/p><\/blockquote>\n
      Thus, whereas the Writ, in fact, had challenged our decision notice of
\n17-4-09 on grounds of merit, the order of learned Justice Sanjiv Khanna has
\nnot expressed any opinion on this.\n<\/p>\n
                              DECISION NOTICE<\/p>\n
      We find from our decision notice dated 6-3-09 followed by Adjunct
\nOrder of 17-4-09 that in fact petitioners before the High Court S\/Shri Sanjiv
\nTomar and Ram Phool had indeed been given the opportunity to appear
\nbefore us at which time Shri Sanjiv Tomar had appeared and submitted as
\nfollows, as recorded by us:\n<\/p>\n
                                      5<\/span><\/p>\n
            “Shri Sanjiv Tomar submitted that he personally visited Ghaziabad
\n           and the documents sought by appellant Shri Aftab Ahmed have
\n           been provided to him. However, on the question of delay he
\n           submitted that this was a case of delay in office procedure and
\n           although he admits that there has been a default at the level of
\n           SHO and ASI, 1 this arose because of an oversight and not for any
\n           malafide reason.”<\/p><\/blockquote>\n
           It is however, correct that Shri Ram Phool had not so appeared. We
\nhave based reliance on the order of Appellate Authority Shri Rajesh Kumar,
\nJCP, Southern Range of 6-11-07 in which the Appellate Authority has
\nrecorded in his decision that “as per record available on file the SHO\/PS
\nPaschim Vihar and ASI, Ram Phool both are on fault. They handled the RTI
\nrequest of the appellant very casually”.\n<\/p>\n
           In this case both petitioners have taken the plea that they are not PIOs
\nand, therefore, not liable for penalty. In presenting his case before us Shri
\nSanjiv Tomar supported by Shri Ram Phool have submitted that they have
\nreceived the application of appellant Shri Aftab Ahmed only as ordinary mail
\nand not earmarked as an RTI Application.               He has argued also that
\nprovisional certified copies of documents cannot be classified as information.
\nThe issue before us in this case was clearly the response to an RTI
\napplication of 31-8-07 submitted by Shri Aftab Ahmed of Rajinder Nagar,
\nSahibabad, Ghaziabad. The merit of the information sought is not in question
\nat this stage nor was that the issue addressed in our decision of 17-4-09.
\nBesides, certified copies of documents are decidedly part of a ‘record’ as
\ndefined in Sec 2(i) and accessible under ‘right to information as mandated u\/s
\n2(j) (ii). Whether the information sought was information or not as defined in
\nSection 2 (f) of the RTI Act or whether applicant Shri Aftab Ahmed had a right
\nto access this information as defined in Section 2 (j) was expected to have
\nbeen responded to in the first instance by the CPIO.            This was not the
\ndecision. Besides, we have also in our decision notice of 6-3-09 agreed that
\n“quite clearly a copy of the certified document the SHO no longer holds for
\nwhatever reason cannot now be supplied to appellant Shri Aftab Ahmed”.\n<\/p>\n
1<\/span><\/p>\n
    Underlined by us for emphasis<\/p>\n
                                           6<\/span>
\n           In that order we have also issued notice to the present petitioners Shri
\nSanjiv Tomar and Ram Phool (incorrectly spelled as Ram Phal in our decision
\nof 6-3-09). In response Shri Sanjiv Tomar did appear before us as mentioned
\nabove but not Shri Ram Phool.             The plea for exemption from penalty,
\ntherefore, rests clearly only on the ground that the petitioners are not
\ndesignated as PIO or APIO. In this case, however, the reference to the then
\nSHO and then ASI can be made by the CPIO, u\/s 5 (4) which reads as follows:\n<\/p>\n
          (4)     The Central Public Information Officer or State Public
\n                  Information Officer, as the case may be, may seek the
\n                  assistance of any other officer as he or she considers
\n                  it necessary 2 for the proper discharge of his or her
\n                  duties.\n<\/p><\/blockquote>\n
          Following from this requirement is Section 5 (5), which reads as follows:
\n          (5)     Any officer, whose assistance has been sought under
\n                  sub-section (4), shall render all assistance to the Central
\n                  Public Information Officer or State Public Information
\n                  Officer, as the case may be, seeking his or her
\n                  assistance and for the purposes of any contravention
\n                  of the provisions of this Act, such other officer shall
\n                  be treated as a Central Public Information Officer or
\n                  State Public Information Officer, as the case may
\n                  be 3 ..<\/p><\/blockquote>\n
          Thus, both these officers can and have been treated as PIOs in the
\npresent case. We have in our order of 17-4-09 discussed in some detail the
\nramification of sub-Section (1) of Section 20 and to what extent this
\nCommission is at liberty to rule on imposition of penalty or otherwise. We
\nhave come to the conclusion that there was little discretion left with this
\nCommission in the matter in face of the fact that delay in response stood
\nacknowledged. Upon hearing the parties, however, the additional fact that
\nhas been raised is whether Section 5 (5) will apply if the officers whose
\nassistance has been sought u\/s 5 (4) have not been informed that they are to
\nbe held so liable.         We cannot in good conscience take such a view.
\nNevertheless, officers of a Public Authority particularly one with wide public
\ninterface such as the Police Department cannot be allowed this license. This
\nis clearly a procedure regarding which the matter is to be decided within the
\n2<\/span>
\n    Emphasis added
\n3<\/span>
\n    Emphasis added by us<\/p>\n
                                           7<\/span>
\n Police Department. For this reason a copy of this decision notice will be
\nendorsed to Shri Y.S. Dadwal, Commissioner of Police, Delhi u\/s 25 (5) as a
\nrecommendation his consideration.        But for the substance of this petition,
\nhowever, having heard both the parties we must come to the conclusion that,
\ngiven the fact that the matter has been concluded to the satisfaction of
\nappellant Shri Aftab Ahmed, they have nevertheless rendered themselves
\nliable to disciplinary action u\/s 20 (2), if not penalty. We, therefore, direct that
\nShri Rajesh Kumar, Jt. Commissioner of Police (Southern Range) will
\ntake such disciplinary action as deemed fit, under intimation to Shri Pankaj
\nShreyaskar, Deputy Secretary and Joint Registrar of this Commission by or
\nbefore 21.1`2.’09. This Appeal is disposed of accordingly in remand.\n<\/p>\n
       Reserved in the hearing to enable study of respondents’ petitions
\nbefore the High Court of Delhi, this decision is announced this seventh day of
\nDecember 2009. Notice of this decision be given free of cost to the parties.\n<\/p>\n
(Wajahat Habibullah)
\nChief Information Commissioner
\n7-12-2009<\/p>\n
Authenticated true copy. Additional copies of orders shall be supplied against
\napplication and payment of the charges prescribed under the Act to the CPIO
\nof this Commission.\n<\/p>\n
(Pankaj K.P. Shreyaskar)
\nJoint Registrar
\n7-12-2009<\/p>\n
                                         8<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Central Information Commission Shri S.M. Aftab Ahmed vs Deputy Commissioner Of Police … on 7 December, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[39,1],"tags":[],"class_list":["post-161675","post","type-post","status-publish","format-standard","hentry","category-central-information-commission","category-judgements"],"yoast_head":"\nShri S.M. 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