Allowed

M L Sharma v. Central Information Commission & Ors.

Delhi HC2 Aug 2018W.P.(C)/6436/2016

Case brief

AI extract

What is this about?

The High Court set aside the Central Information Commissioner's order closing an RTI complaint. The Court held that the CIC failed to inquire into the delay allegations before dismissing the matter. It directed the CIC to hear the petitioner afresh, noting that Section 18 complaints triggering penalty proceedings under Section 20 were distinct from Section 19 appeals, and the petitioner had no abs

What did the court decide?

The order dated 18.06.2015 of the CIC was set aside. The CIC was directed to hear the petitioner afresh under Section 18 and decide whether to initiate penalty proceedings.

M L Sharma Vs Central Information Commission & Ors. — RTI and Transparency | Delhi HC (2018)

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Signature Not Verified Signed By:RAM DATT Signing Date:15.10.2024 16:42 Certify that the digital and physical file have been compared and the digital data is as per the physical file an d no page is missing.

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Briefly,the backdrop,in which, the instantwrit petitionhas been filed is as follows: -

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2.1 The petitionerhad filed, on 22.09.2014,an applicationunder Section 6 of the RTI Act with regard to the grant released by DAVSS Jangpura, New Delhi, in favour of, one, Mr. DharmendraKumar, TGT (Maths).

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2.2 The period for which this informationwas sought spanned between 1994 to 2007. Furthermore,names of persons who had directedthe release of the grant, whether in the Managing Committee or otherwise was also sought.

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2.3 It appearsthatthis application,filed bythepetitioner,with the Deputy Director of Education (South East) (in short "DDE") was transferredto anotherzone in exerciseof powers conferredunder Section6(3) of the RTI Act.

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2.4 The information,though,with regardto the sarne was furnishedto the petitionerbythe DDE (SouthEast)vide edmmunieationdated 03.11.2014.

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2.5 The petitioner,being aggrieved,,prefeiieidartf^^ under Section 19 of the RTI Act. This appeal was filed on 14.11.2014. The First Appellate Authority ("FAA") heard the appeal on 12.12.2014. The FAA rendered its decision on 18.12.2014. By virtue of this ofder, a direction was issued to the Public Information Officer (PIO), DDE (South East) to provide to the petitioner the relevant information within a period of 10 days.

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2.6 It is the case of the respondents that the concerned authorities had addressed a communication dated 27.02.2015 to the petitioner, under intimation to the DDE (South East) (i.e. respondent no.2 herein) that a reply to the petitioner's RTI application was sent to him under the cover of letter

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dated 11.11.2014, which was, returned to it by the postal department without furnishing any reason.

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2.7 The record shows that on 11.03.2015 the petitioner lodged a complaintunder Section 18 as againstan appeal with CIC under Section 19 of the RTI Act. The burden of the complaint was that the penalty proceedingsshould be initiatedagainstDDE (South East)/ respondentno.2 for failure to disclose the relevant infomiation.

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2.8 The CIC issued notice in the complaint on' 01.06.2015 with a directionto the petitionerto appear before it on 16.06.2015. A perusal of the notice would show that the complaint made to the CIC was, inadvertently, treated as a second appeal.

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2.9 In order to set the record right, the petitioner filed an application dated 10.06.2015. Furthermore, on 15.06.2016, the petitioner filed a reply in response to the notice dated 01.06.2015,issued by the CIC, which, in effect, was an additional submission niade on behalf of the petitionerin supportof his complaint. The matter, it appears,was placed beforethe CIC on 16.06.2015, when, a reply filed qua the applicationpreferred by the petitionerwas handedover to his representative,one, Ms. KasturiSharma.

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The matter, thereafter, was taken up by the CIC on 18.06.2015. On the said date, upon the CIC noticingthat the requisiteinformationhad been ftimished, decided to close the complaint. In the operative portion of its order the CIC recorded as follows: -

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"Decision:

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Both the parties made their submissions. The respondent authority has presented thepapers containing information to the complainant during

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hearing. As the Complainantis satisfiedwith the same, the Commissioncloses the complaint.'"

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3.1 A perusal of the operativeportion would show that having received the information,the petitionerindicatedto the CIC that he was satisfiedand, accordingly,the complaintwas orderedto be closed. 3.2 The petitioner,however, has chosen to agitate the matter further by institutingthe present writ petition.

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Submissions of Counsel;

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Mr. R.K. Saini, advanced submissionsin support of the petitioner's case, while Mr. Gautam Narayan, additionalstanding counsel, assisted by Ms. Mahamaya Chatterjee, Advocate, appeared on behalf of respondent nos.2 to 4.

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4.1 Mr. Saini submitted that there had been an enormous delay in submittinginformationto the petitioner. It was contendedthat, when, the petitioner'sapplicationwas transferred.from.one departs to another, on 03.11.2014,there was a delay of 14 days, thovighi;,th^transfershould have taken place, if at all, within a maximumperiod of5 days as providedin the provisoto Section6(3) of the RTI Act.

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4.2 Learnedcounselfurthersubmittedthat evenwhen.theFAA vide order dated 18.12.2014,directedthat the informationsought, was to be supplied within 10 days the needful was not done within the time frame stipulated therein.

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4.3 The emphasis of the learned counsel was, that, since a complaint under Section 18 of the RTI Act had been filed, the CIC could not have closed the complaintjust because information had been supplied as the

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reliefsought for by the petitioner,in effect, was that the PIO, DDE (South East) should be penalised under Section 20(1) of the RTI Act after a decisionwas taken in that behalfin appropriatepenaltyproceedings.

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4.4 It was submittedthat the very nature of the complaintwould show that the petitionerwas not satisfied with its closure as was noted in the operativepart of the impugned order vis-a-visthe reliefsought, though he may have been satisfiedin respectofthe informationreceived. 4.5 In supportofhis submission,Mr. Saini relied upon the judgmentof the SupremeCourt in ChiefInformationCommissionerv. StateofManipur, AIR 2012 SC 864 as also the judgmentofa SingleJudge ofthis Court dated 28.10.2013,passed in W.P.(C) No.6755/2012,titled: J.K. Mittal vs. Chief InformationCommissionerand Am.

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Mr. GautamNarayan,on the other hand, submittedthat the petitioner had no locus to insist on levy of penaltyeven if it is assumedthat there was delay in furnishingthe information. AccordingIq' Mr. Narayan, the CIC performed a dual role, which was, that of an; adjudicatorof lis brought before it and also supervisoryfunctions, tearried co contendedthat insofaras the penaltyproceedingsare concerned,they would fall withinthe ambit of supervisoryfunctionsof the CIC. In support of his submissions, learnedcounselreliedupon the followingjudgmentsofthis Court; -

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(i) Ankur Mutreja vs. Delhi University, LPA No.764/2011, decided on 09.01.2012.

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(ii) Naresh Kumar vs. Central Information Commission & Ors., W.P.(C) Nos.11065, 11189, 11190, 11192/2015, decided on 12.01.2016.

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(Hi) Anand Bhushan vs. R.A. Haritash,LPA No.777/2010decided on 29.03.2012.

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(iv) Maniram Sharma vs. Central Information Commission and

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Ors., W.P.(C)No.8041/2014,decidedon 27.04.2015.

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Reasons;

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I have heard learned counsel for the parties and perusedthe record. Accordingto me, what emergesfrom the recordis as follows:-

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6.1 There was, undoubtedly,a delay in furnishingthe informationto the petitioner. In fact, when, the petitioner'sapplicationwas transferredfrom one Departmentto the other in exerciseof powersvestedunder Section6(3) ofthe RTI Act, the time taken, was beyondthe:maximumtime providedfor in the provisoto that very Sectionwhich, as correctlystatedon behalfofthe petitioner,is a period of 5 days from the date of receiptof the application. The application,admittedly,was receivedon 22.09.2p14, whereasthe same was transferred on 03.11.2014.

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6.2 Thereafter,despite the FAA's order dated 18.12.2014,to effect, that the relevantinformationshould be suppliedto 'the petitionerwithin a period of 10 days, the same was not furnishedwithiM-thestipulatedtimeframe.

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6.3 Admittedly,there was some amount of delay, though, the position with regardto this aspect is not clear. RespondentNos. 2 to 4 have taken a stand, to which I have made a referenceabove, that the concernedSchool Authorityhad, in fact, via letterdated 11.11^2014;addressedto the petitioner gave the requisiteinformation,which, however, was returned without any remarks by the postal department.

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6.4 The petitioner,thereafter,abandonedthe appeal remedy and instead of filing a second appeal with the CIC, preferredto lodge a complaintunder Section 18 of the RTI Act.

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Given this backdrop,the question which arises for considerationis: what were the options available to CIC qua a complaint when the informationsoughthad been furnished,though,beyondthe prescribedtime?

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7.1 To answer this poser, one would have examine the contours of the provisionsofSection18 alongwith those ofSection19 and 20.

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7.2 A close scrutinyof provisionsof Section 18 and 19 would show that the procedureprescribedunder Section 18 as against Section 19 of the RTI Act is different. To enable a person to triggeran inquiry by the CIC under Section 18 of the RTI Act, he would have to, in the first instance,satisfythe CIC or the State Information Commission ('SIC'), his case falls under any one or more of the circumstancesspecifiedin clause (a) to (f) of sub-section (1) of Section 18.

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7.3 Once, the CIC or the SIC, as the case may be, is satisfied that there are reasonablegroundsto inquireinto the matter if is empoweredto initiate an inquiry qua the same.

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7.4 While making an inquiry into the matter, the,CIC/SIC can exercise powers which a Civil Court exercises while trying a suit under the Code of Civil Procedure, 1908 in respect of matters set forth in clauses (a) to (f) of sub-section (3) of Section 18.

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7.5 Sub-section (4) of Section 18 states that notwithstanding anything contained in any other Act of the Parliament or the State Legislature, the CIC or the SIC, as the case may be, may during an inquiry of any compliant under the RTI Act examine the record to which the RTI Act applies, which is under control of a public authority. The provision goes on to state that no such authority is empowered to withhold the record sought, on any ground

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whatsoever.

7.6 Thus, once the CIC/SICcomes to the conclusion,based on an inquiry that the complainant'scase (in this case the petitioner)falls under any one or more of the circumstancesset forth in clause (a) to (f) of sub-section(1) of Section 18 it can trigger an inquiry and, if the inquiry, leads to the conclusionthat what is stated in the complaintis correct, then, it has the powerto initiateproceedingsunder Section20 ofthe RTI Act.

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7.7 Therefore,the contentionadvancedonbehalfof the petitionerthat the procedureprescribedunder Section 18 is differentfrom that ofSection 19 is in my view correct.

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7.8 Resultantly,the only order, if at all, which the CIC could have passed in this case was an order of penaltyunder Section20, providedthat after an inquiry, it came to the conclusionthat the conductof the PIO was not bona fide. In this context,one may usefully-referto; relevantobservationsof: the SupremeCourtin the matterof ChiefInformationCommissionervs. State of ^ Manipur (supra), (paragraphs 29 to 31): -, .

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"29. If we look at Section IS of the Act it appears that the powers under Section 18 have been categorized under clauses (a) to (f) of Section 18(1). Under clauses (a) to (f) of Section 18(1) of the Act the Central Information Commission or the State Information Commission, as the case may be, may receive and inquire into complaint of any person who has been refused access to any information requested under this Act [Section 18(l)(b)] or has been given incomplete, misleading or false information under the Act [Section 18(l)(e)J or has not been given a response to a request for information or access to information within time-limits specified under the

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Act [Section18(l)(c)]. We are not concernedwith provision of Section 18(1)(a) or 18(l)(d) of the Act. Here we are concernedwith the residuary provisionunderSection18(l)(f)ofthe Act. 30. Under Section 18(3) of the Act the Central InformationCommissionor the State Inforrnation Commission, as the case may be, while inquiring into any matter in this Section has the same powersas are vestedin a civil courtwhile tryinga suit in respect of certain matters specified in Section18(3)(a)to (f). UnderSection 18(4) which is a non obstante clause, the Central Information Commissionor the State Information Commission, as the case may be, may examine any record to which the Act applies and which is under the control of the public authority and such records cannotbe withheldfrom it on anyground.

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It has been contended before us by the respondent that under Section 18 of the Act the Central Information Commission or the State Information Commissionhas no power to provide access to the information which has been requested for by any verson but which has been denied to him. The only order which can be passed by the Central Information Commission or the State Information ConimissioW as the case may be, under Section 18 is an order of penalty provided under Section 20. However, before such order is passedthe Commissionermust be satisfiedthat the conduct of the Information Officer was not bona fide.

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We uphold: the said contention and do not

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find any error in the impusned ludsment of the Hi2h Court whereby it has been held that the Commissioner while entertainim a complaint under Section 18 of the said Act has no jurisdiction to pass an order providing for access to the information.

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XXX

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The nature of the power under Section 18 is supervisory in character whereas the procedure under Section 19 is an appellate procedure and a personwho is a22rievedby refusalin receivinsthe informationwhich he has sousht for can onlyseek redress in the manner provided in the statute, namely, bv following the procedure under Section 19. This Court is. therefore, of the opinion that Section 7 read with Section 19 provides a complete statutorymechanismto a person who is as2rieved 'by refusal to receive information. Such person has to 9et the information by followins the aforesaid statutory provisions. The contention of the appellant that information can be accessed through Section 18 is contrary to the express provisionofSection19of the Act.

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(emphasis is mine)

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The contentionadvanced by Mr, Narayan, that the petitionerhas no locus standi,to be heard, as a matterofright, in perialtyproceedingswould be right, at a stage, which would be> reachedonly afterthe CIC comes to the conclusionthat it was a matterfit for iriitiatipiiofpeiiHityproceedings.

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8.1 The CIC, in my view, will have to ascertainas to whetherthere was delay and if, there was delay, how much was the delay,,and the reasons for the same, that is, whetheror not the delay was deliberateand/orintentional. 8.2 While ascertaining the answers to these questions, the CIC will necessarilyhave to hearthe PIO as well.

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8.3 In support of his submissions, Mr. Narayan had relied upon the judgment of the Division Bench in Ankur Mutreja's case. The Division Bench in Ankur Mutreja's case was dealing with the order of the CIC passedin appellateproceedingsand not qua a complaintfiled under Section

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That being said, in so far as the penaltyproceedingsare concerned,the observationscontainedtherein would apply, albeit, at the appropriatestage. For the sake ofconvenience,the relevantobservationsmade by the Division Benchin AnkurMutreja'scase are extractedherein;

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It is clearfrom the language ofSection 20(1) that only the opinion, whether the InformationOfficer has "withoutany reasonable cause" refused to receive the application,for informationor notfurnishedinformationwithin the prescribed time or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading informationetc., has to beformed "at the time ofdecidingthe appeal". The proviso to Section 20(1) of the Act further requires the CIC to. after forming such opinion and before imposing any yenaltv, hear the Information Officer asainst whom penalty is proposed. Such hearing obviously has to be after the decision of the appeal. The reliance by the appellant on Section 19{8){c) of the RTI Act is misconceived. The same only specifies the matters which the CIC is required to decide. The same cannot be read as a mandate to the CIC to pass the order of imposition of the penalty along with the decision of the appeal. Significantly.Section 19(10) of the Act requiresCIC to decide the appeal "in accordancewith,suchprocedureas may be prescribed".The said proc'edureis 'prescribedin Section20 of the Act, which requiresthe CIC to, df the-time'ofdecidinsthe appealonly form an opinionand'notto impose the penalty.

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The aforesaidprocedure is even otherwisein consonance with logic andsettledlegalprocedures.At the stageofallowing the appeal the CIC can only form an opinion as to the intentional violation if any by the Information Officer of the provisionsof the Act. Significantly,impositionofpenalty does notfollow every violationof the Act but only such violationsas are without reasonable cause, intentional and malafide.

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While in decidingthe appeal, the CIC is concernedwith the merits of the claim to information, in penaltyproceedings the CIC is concerned with the compliance by the Information Officers of the provisions of the Act. A discretion has been vestedin this regard with the CIC. The Act does not providefor the CIC to hear the complainant or the appellant in thepenalty

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proceedings, though there is no bar also there against ifthe CJC so desires. However, the complai^^nf cannot as a matter ofriirhtclaim audience in the penalty proceeding'swhich are between the CIC and the erring Information Officer. There is no provision in the Act for payment of penalty or any part thereofif imposed, to the complainant.Regulation 21 of the Central Information Commission (Management) Regulations, 2007 though providesfor the CIC awarding such costs or compensationas it may deemfit but does not providefor such compensationto be paid out ofthe penaltyifany imposed. The appellantcannot thus urge that it has a right to participatein thepenaltyproceedingsfor the said reasoneither.

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The penalty proceedings are akin to contempt proceedings, the settled position with respect whereto is that after brinsins the facts to the notice of the Court, it becomes a matter between the Court and the contemnor and the informant or the relator who has brousht the factum of contempt havme been committed to the notice of the Court does not become a complainant or petitionerin the contemptproceedings.His duty ends with the facts being placed before the Court thoush the Court may in appropriatecases seek his assistance.Referencein this regard may be made to Om Prakash Jaiswal v- DJK. Mittal (2000) 3 see 171, Muthu Karuppan, Commr. of Police, Chennai v. Parithi Ilamvazhuthi (2011) 5 SCC 496 arid Division Bench judgmentof this Court in Madan.Mohan Sethi V; NirmalSham Kumari MANU/DE/0423/2011. The said: applies equally to proceedings under. Order XjOHX, Rule 2A of the Civil Procedure Code, 1908 which proceedings are also penal in nature.

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Notice may also be taken of Section 18 of the RTI Act which provides for the CIC to receive and inquire into complaints against the Information Officer. The legislature having made a special provisionfor addressing the complaints of aggrieved information seekers is indicative of the remedy of such aggrieved information seekers being not in the penalty proceedings under Section 20. "

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(emphasis is mine)

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The view taken by the DivisionBench of this Courtin AnkurMutreja

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(supra) has been followed in other cases which were cited by Mr. Narayan i.e. Anand Bhushan, Naresh Kumar V5. CIC & Ors. and Maniram Sharma vs. CIC & Ors.(supra). Therefore, in a nutshell what emerges is that the CIC, while deciding an application under Section 18, if satisfied,that a reasonableground obtainsto inquire into the matter, is requiredto make an inquiryand, thereafter,if satisfiedas to the veracityof the avermentsmade inthe complaint,is empoweredto initiatepenaltyproceedingsunder Section 20 of the RTI Act.

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The CIC, in this case, has, clearly, not inquired into the grievance of the petitioner,which is that informationwas not given to him within the time limit specifiedin the Act. The CIC on the other hand, simply closed the petition on the ground that the petitioner was satisfied with the information received. While this may be true, the grievance articulated in the complaintwhich was that there was unexplaineddelay in fiimishingthe information,in my view, is an aspect to which the CIC did not apply its mind to.

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Therefore, for the foregoing-reasons^ I am inclined to set aside the order dated 18.06.2015. It is directed accordingly.

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Conclusion;

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The CIC will hear the petitioner afresh and decide the matter in consonancewith the regime of Section 18 and other attendantprovisionsof the RTI Act and the rules framed thereunder. In case, the CIC comes to the conclusionthat proceedingsunder Section 20 need to be initiated,then, it would decide as to whether or not audience is to be granted to the petitioner in line with the ratio of the decisions of the Division Bench of this Court renderedinAnkurMutreja and Maniram Sharma (supra).

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