Damodar Valley Corporation v. Union of India & Ors

judgment of this Court in: • Rakesh Kumar Gupta (Erstwhile CPIO), Union Bank of India v. Central Information Commission [W.P.(C) 900/2021, 22nd January, 2021] • Jyoti Trivedi v. Central Information Commission 2022/DHC/005493

¶10Mr. Hansaria, ld. Sr. Counsel, on the other hand submits that the record of the Internal Complaint Committee (ICC) would show that the delay in disposing of the sexual harassment complaint was not due to DVC alone but even the complainant had raised certain allegations against the members of the ICC.

¶11Heard. In the present petition, the Court is not dealing with the sexual harassment allegations of the RTI applicant's wife, but with the RTI application filed by the Respondent no.2. The Court has perused the CIC's order. It is clear from a reading of the impugned order from paragraphs 7 till paragraphs 25 that the CIC has gone into various other extraneous issues including harassment in the film industry, measures taken by the Ministry of Women and Child Development, amendments to Section 376 IPC and other issues relating to sexual harassment including the Visakha case. While the observations are general in nature about sexual harassment and its effect etc., in the opinion of the Court, none of these observations which have been made by the CIC in the impugned order were called for in the present

proceedings which arose out of a RTI application where Respondent No. 2 was primarily seeking the status of the case which was filed by his wife.

¶12The order dated 20th May, 2019 with respect to the sexual harassment complaint filed by the wife of Respondent No.2 as also a copy of the inquiry report has already been provided as per the counter affidavit of Respondent No.2.

¶13Under such circumstances, this Court is of the opinion that insofar as the observations made in CIC's order is concerned, the grievances of DVC are not without merit.

¶14Insofar as the argument put forth by ld. Counsel for Respondent No.2 that BVC cannot challenge the penalty imposed on the CPIO is concerned, the same is without merit. The judgments sought to be relied upon by ld. Counsel for Respondent No.2, do not deal with the argument raised by the ld. Counsel. Specific reliance is placed by ld. Counsel on para 11 of judgment passed by this Court in Sh. Rakesh Kumar Gupta (erstwhile CPIO), Union Bank of India (supra), which reads as under: "11. Heard ld. counsels for the parties. The ld. Division bench of this court in R.K Jain v. Union of India (LPA 369/2018, decided on 29th August, 2019) has recognised that the CPIO, being the custodian of information or documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information, and in cases of default, the penal action is to be invoked against the CPIO only."

¶15The said judgement does not in any way prohibit the public authority from challenging the order of penalty passed against the CPIO. Moreover, by way of the impugned order penalty has also been imposed on DVC. The CPIO is merely an officer who acts on behalf of the Corporation. A CPIO is

not acting in his individual capacity. He was issued notice by the CIC and a written statement has been filed. DVC has defended itself before the CIC. Under such circumstances, the submission that the penalty imposed on the CPIO cannot be challenged by the Corporation is without merit.

¶16Section 20 of the RTI Act provides the power to the CIC to impose penalties on PIOs. The said section reads as under: "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, so 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."

¶17Thus, the penalty can be imposed on the CPIO, if the CIC is of the view that any of the grounds laid down in section 20 is made out. However, in the case at hand, the CIC has not given any finding qua the CPIO. The

relevant paragraph of the said order reads as under: "23. The Commission also finds that the DVC neither gave any written explanations nor given any justified oral submissions with regard to the compensation, notice Issued to them. The appellant and his wife were harassed, for complaining against sexual harassment and also for filing RTI application/ appeal. They were denied the information and still-they got only incomplete Information. DVC is as lethargic as possible in acting on her complaint and giving information while they were overactive in victimising the appellant's wife and enthusiastic in protecting the accused. The appellant couple were suffering loss and detriment to her rights. Under Section 19(8) (b) the Commission has, power to require the public authority to compensate the complainant for "any loss or detriment suffered". Invoking this provision the Commission directs the public authority of Damoder Valley Corporation, to provide a compensation of Rs. 1,00,000/- (one lakh) for the harassment caused to the appellant causing loss of her peace, troubling her with transfers, and causing her to suffer detriment of right to work and right to life by its lethargy in not acting on her complaint besides victimising her for complaining and filing RTI requests through her husband, before October 31.

¶24The Commission also imposes penalty on the CPIO Mr. Anshuman Mandal, under Section 20 of the RTI Act. The penalty amount of Rs. 25,000/- (twenty five thousand) shall be deducted by the Public Authority from the salary of the CPIO Mr. Anshuman Mandal by way of demand draft drawn in favour of "PAO CAT", New Delhi in 5 equal monthly instalments and forward the demand drafts addressed to Deputy Registrar (CR-II), email: dyregcr2-cic@qov.in Room No. 106, First Floor, Central Information Commission, Baba Gangnath Marg, Munirka, New Delhl-110057. The first instalment should reach the Commission by

20.12.2018 and the last instalment should reach by

20.05.2019."

¶18In the overall facts and circumstances of this case, the Court is of the opinion that the penalty of Rs.25,000/- on the CPIO is not sustainable.

¶19The only issue that now remains is whether Respondent No. 2 who has been litigating since 2016 has to be awarded any litigation costs in the matter. In the opinion of the Court, while disagreeing with the approach of the CIC of making sweeping observations, in view of the long-drawn battle that the Respondent had to undertake, the ends of justice would be met by awarding costs of Rs.75,000/- to Respondent No.2.

¶20Accordingly, in the facts and circumstances of this case, the information sought for having been provided and the DVC being aggrieved by the observations made against it, the CIC's order insofar as it makes observations against the DVC are set aside. The penalty imposed on the CPIO is also set aside. The costs of Rs.75,000/- shall be paid by the Petitioner-DVC to the Respondent no.2, within a period of four weeks from today.

¶21With these above observations, the present petition with all pending applications, if any, is disposed of.

PRATHIBA M. SINGH JUDGE JANUARY 27, 2023/MR/Sk

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 27th January, 2023 + W.P.(C) 13018/2018 and CM APPL. 50531/2018, 37151/2019 DAMODAR VALLEY CORPORATION ..... Petitioner Through: Mr. Vijay Hansaria, Sr. Adv. with Ms. Madhumita Bhattacharjee and Mr. Srija Choudhary and Ms. Kavya Jhavar, Advs. (M: 9811785211). versus UNION OF INDIA & ORS ..... Respondents Through: Ms. Monika Arora, CGSC with Mr. Subhrodeep Saha, Advocate for UOI. Mr. Paras Jain and Mr. Ashotosh Chaturvedi, Advocates for R-2. Mr. K.C. Dubey, Mr. Mahender Kumar Bharadwaj and Mr. Vatan Kumar Attri, Advocates for R-3. CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral) 1. This hearing has been done through hybrid mode. 2. The present petition has been filed by the Petitioner- Damodar Valley Corporation (hereinafter 'DVC') challenging the impugned order passed by the CIC dated 16th October, 2018. The matter arises out of RTI application filed by Respondent No.2- Mr. Soumen Sen dated 26th June, 2016 to Respondent No.3- National Commission for Women (NCW) seeking information to the following effect: "(1) How many prevention of sexual harassment cases for lady employees at workplace in Damodar Valley Corporation (DVC) are intimated as per records to NCW since 2012 to till date? Yearwise details required. (2) How many cases are solved in DVC as mentioned above till date as per guidelines of NCW? Yearwise details required. (3) How many cases are pending as mentioned above and why? Yearwise details required. (4) Paromita Banerjee Sen, Junior Engineer, Communication dept, DVC, Maithon Vs Shambhu Das, Assistant Engineer, Communication dept DVC, Maithon This case was filed on 16/03/2012. Is this case recorded in NCW from report submitted yearly by DVC? (5) What are the procedures maintained and implemented in the above case (as in Q.4) as in records of DVC intimated to NCW as per records? (6) What is the present status of the case in Q.no. 4 do in DVC intimated to NCW?" 3. The NCW vide e-mail dated 30th May, 2017 forwarded the same to DVC. The DVC vide its reply dated 23rd June, 2017 informed the status of the sexual harassment complaint filed by Respondent No. 2's wife against one of the engineers at DVC. The said reply also annexed therewith 30 pages of documents and other details in relation to the said complaint. 4. Thereafter, vide another letter dated 16th June, 2017 in respect of the remaining queries, the response was given by DVC. However, the RTI Applicant was not satisfied and he, accordingly, approached the Appellate Authority and thereafter, the Central Information Commission. 5. A notice dated 23rd March, 2018 was received by the DVC for a scheduled hearing on 17th April, 2018. DVC through the CPIO submitted a reply dated 12th April, 2018 stating that the DVC has already provided the information that was sought. 6. The Central Information Commission has, vide the impugned order dated 16th October, 2018, passed an order imposing cost of Rs.1,00,000/- on DVC. A penalty to the tune of Rs.25,000/- has also been imposed on the CPIO. The operative portion of the CIC's order reads as under: "7. Upon perusal of the records and submission made by the parties, the Commission finds that information has been provided only after the intervention of this Commission and order of the Commission has been complied with. The National Commission for Women claimed that it has promptly transferred the RTI application to the Damodar Valley Corporation and that it had no power to monitor the action taken on such complaints of sexual harassment. It is sad to hear such contention from the apex body that is expected to secure the rights of women by goading offices and officers act at least on complaints. The NCW cannot shirk its responsibility in such cases. The NCW is not a post office to simply forward the complaints to concerned accused office and wash off hands. The Officers should consult the Chairperson and members before making such claims. As sexual harassment