Right to Information
Delhi HC to CIC: Impose Fine as Per Law, Token Penalty for Delay Not Valid
Can a Central Information Commissioner impose a penalty as per his whims and fancies? Early this week, the Delhi High Court slapped a show cause notice on the Central Information Commission (CIC), seeking an explanation for arbitrarily imposing a Rs5,000 penalty on a Public Information Officer (PIO) instead of going by Section 20 of the Right to Information (RTI) Act. 
 
The court stated, “Section 20 (of the RTI Act) mandates a penalty of Rs250 for each day’s delay subject to a maximum of Rs25,000…there is no concept of token penalty…once the explanation rendered by respondent is rejected, the CIC was obliged to impose the penalty in terms of Section 20.”
 
The court has issued a notice to the CIC and the CPIO to respond by 22nd September. 
 
The petitioner, Dinesh Pandey, referred to the Supreme Court decision in the case of Union of India Vs. Dharmendra Textile Processors, where the apex court, while dealing with the concept of levy of mandatory penalty provided under Central Excise Act, 1944, has held that “when the statutory provision provides for mandatory penalty, the authorities cannot impose lesser penalty when no discretion is available on quantum of penalty under the said statutory provisions”.
 
The petitioner also referred to two other decisions, of the High Court of Punjab and Haryana and High Court of Himachal Pradesh, which observed, “We find no provision in the Act which empowers the Commission to either reduce or enhance this penalty. If the Commission comes to the conclusion that there are reasonable grounds for delay and that the Public Information Officer (PIO) concerned has satisfactorily explained the delay then no penalty can be imposed. However once the Commission come to the conclusion that the penalty has to be imposed then the same must be @ Rs250 per day and not at any other rate at the whims and fancy of the Commission...”
 
There have been similar cases wherein the CIC has imposed a fine which does not adhere to Section 20 rule in the RTI Act. One of them pertains to Delhi-based RTI applicant, RK Jain, who filed an application at the Central Public Information Officer, Customs Excise & Service Tax Appellate Tribunal (CESTAT)’ in Delhi. He had sought information on cases that were reserved by the CESTAT along with names of parties and appeal numbers. Dissatisfied with the information, he filed a second appeal with the CIC, Delhi. The CIC, after hearing, imposed a token penalty of Rs2,500 on the CPIO.  
 
Box:
Section 20 in the Right to Information Act, 2005
 
20. Penalties.—
(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub‑section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished. However, the total amount of such penalty shall not exceed twenty‑five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be.
 
Here is the order passed by the Delhi HC…
 
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting, which she won twice in 1998 and 2005, and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book, “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte”, with Vinita Kamte, and is the author of “The Mighty Fall”.) 

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COMMENTS

Himanshi Verma

2 months ago

for your kind information the case has not been decided yet and further date of hearing is 10/10/2017. so it is not yet law. please dont misguide the people.

Sanjeet Kumar

5 months ago

It is very good decision by Honourable High Court. Most of the time CIC shows reluctance towards imposing penalty on PIOs. Section 20 of the RTI Act does not provides descretion to the CIC to impose penalty, rather it mandates CIC to impose penalty. Learn more about RTI at http://rtiact2005.com/

SRINIVAS SHENOY

6 months ago

It is a favorable decision protecting the appellants rights. Hope similar decisions are passed so that the PIOs realise their duties to the members of the public.

Why is there no action against officer trapped by ACB in Nashik Information Commission?
The prime objective of the Right to Information (RTI) Act is to bring in transparency and thereby root out corruption. However, the Maharashtra State Information Commission office at Nashik has the dubious distinction of its desk officer seeking a bribe of Rs15,000 to dispose of an appeal in favour of the appellant, with an assurance that there would be no penalty against her school. 
 
The complainant in this case was a headmistress of a school in Dhule who was slapped with a Rs25,000 penalty by the Nashik Information Commissioner for not providing information under RTI, in a 2015 case. Ravindra S Sonar, the Desk Officer at the Commission, demanded a bribe of Rs15,000 from the headmistress to settle the issue by disposing of the appeal in her favour and not levying the penalty. Finally, he agreed for Rs10,000. The headmistress approached the Anti-Corruption Bureau (ACB). ACB officers laid a trap on 7 May 2017 at the entrance of the Nashik Information Commission office, where the headmistress would hand over the bribe to Sonar. Sonar was arrested by the police while accepting the bribe. 
 
While RTI activists across Maharashtra are agitated over the issue, no stern action against Sonar has been taken and he continues to be the Desk Officer at the Nashik Information Commission. RTI activists feel that the very arm of transparency and the last hope of citizens is under threat, as this case could be just the beginning. 
Vijay Kumbhar, a leading RTI activist from Pune, says, “Inaction by the State government in not taking stern action immediately after ACB nabbed Sonar, highlights the double standard of the Chief Minister, as his rhetoric time and again to weed out corruption comes a cropper by this inaction. Also, the state government has never been serious about providing good quality staff to information commissions – generally deadwood are posted here. Similarly, several retired bureaucrats with tainted records have adorned the role of Information Commissioners. So, how can one expect a corruption-free information commission?”
 
Indeed, this incident is a blot on the reputation of information commissions.
 
Another leading RTI activist, Major General Sudhir Jatar (retd), feels that this must be happening in many cases, where Information Commissioners do not fine defaulters.
 
Mumbai based RTI Activist Afzal Mohammed rues, “It is indeed a sorry state of affairs that an esteemed institution like the Information Commission, which is supposed to deliver truth to the common man, gets trapped in this fashion. I personally believe there are a few rotten eggs in all baskets, but we cannot generalise.”
 
According to Karnataka-based RTI activist N Vikram Simha, this incident is unfortunate but it is believed it happens also in the Karnataka Information Commission. “It is unfortunate that Maharashtra, which is a leading state in pioneering RTI, should be so tainted,” he says.
 
RTI activist Manoj Pai says, “Most offices of Information Commissioners do not have any sanctioned staff. The Commission has to make do with staff from other departments on deputation. It is believed that all such Information Commission offices, across the country, are a kind of dumping ground for unwanted or inefficient staff. Some staff get themselves posted there to escape punishment for pending cases against them in their parent department. The list is long. Unless improvement is done in the quality of staff in the information commissions, this sorry state of affairs will continue.”
 
Section 15 (6) of the RTI Act, which deals with State Commissions, states:
 
“The State Government shall provide the State Chief Information Commissioner and the State Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed.”
 
However, this is time and again violated. 
 
So, besides the huge list of pending appeals, corruption now is another factor that is denying the common man his right to seek information.
 
Bhaskar Prabhu, Convener, Mahiti Adhikar Manch, has called for an investigation by all commissioners on such practices. He says "The recent incident of a desk clerk of the Nasik bench of SIC accepting a bribe to reduce the penalty is very deplorable. It calls for an Investigation by all Commissioners about the practices being followed in their offices as to how desk officers can waive or reduce penalties, as this will put into question the credibility of the orders passed and also raise doubts about the possible involvement of the IC in such arrangements. This also raises the issue of non-compliance of orders in cases where penalties are imposed. As there is no serious follow up, there are cases where the PIO has retired without the recovery of the penalty and the enquiries thereafter are just manipulated.''
 
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting, which she won twice in 1998 and 2005, and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book, “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte”, with Vinita Kamte, and is the author of “The Mighty Fall”.) 
 

 

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COMMENTS

GP MURMU

2 months ago

Why can not take action for officer about pancard of India.

GP MURMU

2 months ago

I inveseted money in pancard club ltd. The maturity date is over 2014 May. The company could not refund money. What I do ?

GP MURMU

2 months ago

I

Sachin Naik

2 months ago

जर ती कंपनी बोगस आहे अस जर सेबी ला वाटत असेल तर गोरगरीबांचे पैसे त्या कंपनी कडुन वसुल का करत नाहीत ?

PRALHAD KULKARNI

2 months ago

l have invested Rs. 150000/- . Maturity is 6/2018. Whether I have to claim my amount before maturity to SEBI. Kindly guide.

mahesh Parmar

3 months ago

Please add me in WhatsApp group. 9913966493. We must unite and visit SEBI for more meaningful action

Falguni Shah

3 months ago

I have invested 120000.add me also.9920290590..we all investors should take some action

Vaibhav Dhoka

6 months ago

This has become routine to delay complaint, suit, appeal etc at courts regulators or any quasi judicial organisation.To top it governments protection to such corrupts low our heads in shame.

Ashok Waykole

6 months ago

Than who is now responsible for unnessary delay to gave same judgement of earlier given. Whether delaying of all such serious is session is your transparency ! Will definitely write to PM & CM .

Filing an FIR is no answer for a missing file; PIO should reconstruct the file, rules CIC
Neither lodging a first information report (FIR) with the police nor denying information to a citizen under Right to Information Act (RTI) under the pretext of a missing file is acceptable. Last week’s order by the Central Information Commission (CIC) puts the onus further on the Public Information Officer (PIO) to reconstruct the missing file. The order states, “It is the duty of the PIO to make necessary efforts to trace the file and inform the same to the appellant in the form of an affidavit.” The order also makes applicable the Public Records Act as well as the Indian Penal Code for the PIO.
 
In several earlier decisions, pioneered by Maharashtra’s former Information Commissioner Vijay Kuvalekar, lodging of FIR was made mandatory for the PIO in case he or she cannot trace the files which contain information required by the CIC. However, FIRs would be merely lodged with no further action. The latest order by Central Information Commissioner Prof Sridhar Acharyulu’ questions the validity of the FIR in such a case, stating, “The Commission feels that lodging of FIR is not the remedy in such cases, as one cannot expect the Police to come to the office and trace the file. According to law, Police does not have any responsibility to trace the missing files, as they will come into picture only when there is theft of the files. It cannot be said that police should come to office and search for the files or things misplaced by negligence or deliberate action or by mistake etc.”
 
Holding the PIO fully responsible for missing files and stating that every public authority should designate a Public Records officer and the Public Records Act 1993 should be made applicable to a PIO, Mr Acharyulu stated in his order of 4 May 2017, “The public authority has a duty to designate ‘Public Records Officer’ as per Public Records Act, 1993. This Act is made to regulate the management, administration and preservation of public records of the Central Government, Union Territory Administrations, public sector undertakings, statutory bodies and corporations, commissions and committees constituted by the Central Government or a Union Territory Administration and matters connected therewith or incidental thereto.”
 
Bringing out similarities between the two Acts, CIC Acharyulu stated that the definition of ‘Public Records’ U/S 2(e) of Public Records Act, 1993 (PRA 1993) is almost identical with the definition of Records under the RTI Act 2005. These records can be sought under the RTI Act, 2005 as ‘Information’ through RTI Application. 
 
What does the Public Records Act (PRA) 1993 say?
 
S 5 (1) Every records creating agency shall nominate one of its officers as records officer to discharge the functions under this Act. Under PRA 1993, Sec 6(1) the records officer shall be responsible for:
 
  • Proper arrangement, maintenance and preservation of public records under his charge;
  • Periodic review of all public records and weeding out public records of ephemeral value;
  • Appraisal of public records which are more than 25 years old in consultation with the National Archives of India or, as the case may be, the Archives of the Union territory with a view to retaining public records of permanent value;
  • Destruction of public records in such a manner and subject to such conditions as may be prescribed under sub-section (1) of section 8;
  • Compilation of a schedule of retention for public records in consultation with the National Archives of India or, as the case may be, the Archives of the Union Territory;
  • Periodic review for downgrading of classified public records in such manner as may be prescribed;
  • Adoption of such standards, procedures and techniques as may be recommended from time to time by the National Archives of India for improvement of record management system and maintenance of security of public records;
  • Compilation of annual indices of public records;
  • Compilation of organisational history and annual supplement thereto;
  • Assisting the National Archives of India or, as the case may be, the Archives of the Union territory for public records management; 
  • Submission of annual report to the Director General or, as the case may be, head of the Archives in such manner as may be prescribed;
  • Transferring of records of any defunct body to the National Archives of India or the Archives of the Union Territory, as the case may be, for preservation. 
 
The CIC’s decision of 4th May was a result of a second appeal filed by a citizen, Balvendra Kumar, who sought details with regard to the file notings of all corresponding papers of a particular file in the Ministry of Labour and Employment. The CPIO replied by stating the concerned file was not traceable. An appeal was filed. The First Appellate Authority (FAA) provided two pages, but Balvendra Kumar was not satisfied. He made a second appeal to CIC. The PIO, during the CIC hearing, stated that “they made all possible efforts to find out the missing file in question and even went to different sections of the concerned departments but all their efforts bore no fruitful results”.
 
The CIC referred to an earlier order of 2014 on the issue of missing files which stated that, “... prima facie, public authority cannot deny the right of the appellant to get an alternative plot, by putting forward an excuse of missing file. The defense of missing file cannot be accepted even under the RTI Act. If the file is really not traceable, it reflects the inefficient and pathetic management of files by the Public Authority. If the file could not be traced in spite of best efforts, it is the duty of the respondent authority to reconstruct the file or develop a mechanism to address the issue raised by the appellant.”
 
The CIC also observed that if the Right to Information Act, 2005 is read along with Public Records Act, 1993 and Indian Penal Code, “it will lead to serious consequences for those who lose the records, besides the disciplinary action from the top administration. The Right to Information Act cannot be effectively implemented without properly implementing the Public Records Act, 1993. But most employees and their bosses do not know that a law called Public Records Act exists in this country”.
 
If all these laws are put together, the CIC said, “Appropriate action could be ordering an inquiry and holding the persons responsible for the disappearance of the files. There are three requirements, a) recovering the file, b) finding out which employee was responsible followed by disciplinary action and c) addressing problems arising out of ‘missing file’. No public authority has shown any such record that reflected their ‘appropriate action’.”
 
The CIC has directed CPIOs of the Ministry of Labour and Employment to give, by 12 May 2017, “report on action taken on the pathetic condition of their office losing a very important record like this, and inform the Commission what kind of measures they contemplate to address the grievance of the appellant…”
 
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting, which she won twice in 1998 and 2005, and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book, “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte”, with Vinita Kamte, and is the author of “The Mighty Fall”.) 

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COMMENTS

Naveen Saraswat

4 months ago

In one case where i cought frodulant papaer submitted by someone to get labour department shop act registration to make it as proof to occupancy as tenant of the plot the department lost the file while earlier some years back they gave me copy of file papaers against my RTI. Now i feel department is mananaged to destroy the file as culprits are saying that they have not submitted the said frodulant papaer to labour department and department also informed police that file is lost against police FIR lodged by me. Now i feel as forensic investigation can not be done in absence of original paper as file lost my case against culprit may be weaken as they know original file can not be found now so forensic investigation can not be done of the paper they are claiming they have not submitted the said paper . Even they are blaming i or someone have got managed to get forged RTI.
What i should do please suggest if anybody know .

Lakshminath Mocherla

6 months ago

The CIC should have been punished by slapping Rs20000/- fine while asking him to amend the order of penalty. By this both the parties involved would have been educated and it is a reminder for the generation of officers who adorn the post.

Ramesh Bajaj

7 months ago

The FIR is not a solution. The file has to be found / reconstructed. FIR can easily be managed so that it is discussed

REPLY

Ramesh Bajaj

In Reply to Ramesh Bajaj 7 months ago

Correction: FIR can be managed to be dismissed

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