M L Sharma v. Central Information Commission & Ors

RAJIV SHAKDHER, J. Background Facts; L This writ petitionis directedagainst-the^orderof respondentno.l i.e. the CentralInformationCommission(hereafterreferredto as "CIC").

1.1 The petitioner,evidently,is aggrievedby the, impugnedorder dated

18.06.2015,passed by the CIC and, therefore,seeks a directionfrom this Court to set aside the same, albeit, with exemplary cost.

1.2 A further relief is sought by the petitioner,which is, that the CIC should be directed to adjudicate upon the complaint filed with it in consonancewith the provisionsofsection18(3)ofthe Rightto Information Act, 2005 (in short "RTI Act"). W.P.(C) No.6436/2016 Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing.

¶2Briefly,the backdrop,inwhich,the instantwritpetitionhas beenfiled is as follows: -

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 favourof, one, Mr. DharmendraKumar,TGT(Maths).

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

2.3 It appearsthatthis application,filedbythepetitioner,withtheDeputy Director of Education (South East) (in short "DDE") was transferredto anotherzone in exerciseof powersconferredunder Section6(3) of the RTI Act.

2.4 The information,though,with regardto the sarnewas furnishedto the petitionerbytheDDE (SouthEast)vide edmmunieationdated03.11.2014.

2.5 The petitioner,beingaggrieved,,prefeiieidartf^^ under Section19 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.

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

2.7 The record shows that on 11.03.2015 the petitioner lodged a complaintunder Section18 as againstan appealwith CIC under Section19 of the RTI Act. The burden of the complaint was that the penalty proceedingsshouldbe initiatedagainstDDE (SouthEast)/respondentno.2 for failure to disclose the relevant infomiation.

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 perusalof the notice would show that the complaint made to the CIC was, inadvertently, treated as a second appeal.

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 additionalsubmissionniade on behalf of the petitionerin supportof his complaint. The matter,it appears,was placedbeforethe CIC on 16.06.2015,when, a reply filed qua the applicationpreferred by the petitionerwas handedoverto his representative,one, Ms. KasturiSharma.

¶3The 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 operativeportion of its order the CIC recorded as follows: - "Decision:

¶3Both the parties made their submissions. The respondent authority has presented thepapers containing information to the complainant during Page3of14 hearing. As the Complainantis satisfiedwith the same, the Commissioncloses the complaint.'"

3.1 A perusalofthe operativeportionwould show that having received the information,the petitionerindicatedto the CIC thathe was satisfiedand, accordingly,thecomplaintwas orderedto beclosed.

3.2 The petitioner,however,has chosen to agitatethe matter further by institutingthe present writ petition. Submissions of Counsel;

¶4Mr. R.K. Saini, advancedsubmissionsin supportof the petitioner's case, while Mr. Gautam Narayan, additionalstandingcounsel, assistedby Ms. Mahamaya Chatterjee,Advocate, appeared on behalf of respondent nos.2 to 4.

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^transfershouldhave takenplace,ifat all, withina maximumperiodof5 days as providedin the provisoto Section6(3) of the RTI Act.

4.2 Learnedcounselfurthersubmittedthat evenwhen.theFAAvide 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.

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 informationhad been supplied as the Page4of14 reliefsoughtfor 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 takeninthatbehalfinappropriatepenaltyproceedings.

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 impugnedorder vis-a-visthe reliefsought,thoughhe may havebeensatisfiedin respectofthe informationreceived.

4.5 In supportofhis submission,Mr. Saini reliedupon the judgmentof the SupremeCourtin ChiefInformationCommissionerv. StateofManipur, AIR 2012 SC 864 as also the judgmentofa SingleJudgeofthis Courtdated

28.10.2013,passedin W.P.(C)No.6755/2012,titled: J.K. Mittalvs. Chief InformationCommissionerand Am.

¶5Mr. GautamNarayan,on the otherhand, submittedthat the petitioner had no locusto insiston 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 wouldfall withinthe ambit of supervisoryfunctionsof the CIC. In supportof his submissions, learnedcounselrelieduponthe followingjudgmentsofthis Court;-

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

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

12.01.2016.

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

(iv) Maniram Sharma vs. Central Information Commission and Page5of14 \S Ors.,W.P.(C)No.8041/2014,decidedon 27.04.2015. Reasons;

¶6I have heard learnedcounsel for the parties and perusedthe record. Accordingto me, whatemergesfrom the recordis as follows:-

6.1 There was, undoubtedly,a delay in furnishingthe informationto the petitioner. In fact, when, the petitioner'sapplicationwas transferredfrom one Departmentto the otherin exerciseofpowersvestedunderSection6(3) ofthe RTI Act, the time taken,was beyondthe:maximumtime providedfor in the provisoto thatvery Sectionwhich,as correctlystatedon behalfofthe petitioner,is aperiodof 5days from the date of receiptofthe application. The application,admittedly,was receivedon 22.09.2p14, whereasthe same was transferred on 03.11.2014.

6.2 Thereafter,despitethe FAA's order dated 18.12.2014,to effect,that the relevantinformationshouldbe suppliedto'the petitionerwithina period of 10 days,the same was not furnishedwithiM-thestipulatedtimeframe.

6.3 Admittedly,there was some amount of delay, though, the position with regardto this aspectis not clear. RespondentNos. 2 to 4 have takena 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 returnedwithoutany remarks by the postal department.

6.4 The petitioner,thereafter,abandonedthe appeal remedy and instead offilinga secondappealwiththe CIC, preferredto lodgea complaintunder Section 18 of the RTI Act. Page 6of14

¶7Given this backdrop,the questionwhich arises for considerationis: what were the options available to CIC qua a complaint when the informationsoughthad beenfurnished,though,beyondthe prescribedtime?

7.1 To answer this poser, one would have examine the contoursof the provisionsofSection18 alongwiththoseofSection19 and 20.

7.2 A close scrutinyof provisionsof Section 18 and 19 would show that the procedureprescribedunder Section 18 as againstSection19 ofthe RTI Act is different. To enablea personto triggeran inquiryby the CIC under Section18 of the RTI Act, he wouldhave 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.

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.

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.

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 H whatsoever.

7.6 Thus, oncethe CIC/SICcomesto the conclusion,basedon 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 initiateproceedingsunderSection20 ofthe RTI Act.

7.7 Therefore,the contentionadvancedonbehalfofthe petitionerthatthe procedureprescribedunderSection18 is differentfrom thatofSection19 is in my view correct.

7.8 Resultantly,the only order,if at all, whichthe CIC couldhave 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): -, . ^ "29. Ifwe look at Section IS ofthe 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) ofSection 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 Act[Section18(l)(c)]. We are notconcernedwith provision of Section 18(1)(a) or 18(l)(d) of the Act. Here we are concernedwith the residuary provisionunderSection18(l)(f)oftheAct.

¶30Under 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 civilcourtwhile tryinga suit in respect of certain matters specified in Section18(3)(a)to (f). UnderSection18(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 authorityand such records cannotbewithheldfrom it on anyground.

¶31It has been contended before us by the respondentthat 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 satisfiedthatthe conduct of the Information Officer was not bona fide.

¶32We uphold: the said contention and do not find any error in the impusnedludsment 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. Page9of14 1^ XXX XXX XXX

¶39The nature of the power under Section18 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

¶19This Court is. therefore, of the opinion that Section 7 read with Section 19 provides a complete ^ statutorymechanismto a personwho 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 provisionofSection19ofthe Act. (emphasis is mine)

¶8The contentionadvancedby Mr, Narayan,that the petitionerhas no locusstandi,to be heard, as a matterofright, in perialtyproceedingswould be right,at astage,whichwould be>reachedonlyafterthe CIC comesto the conclusionthatit was amatterfit for iriitiatipiiofpeiiHityproceedings.

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 reasonsfor the same,that is, whetheror not the delaywas deliberateand/orintentional.

8.2 While ascertainingthe answers to these questions, the CIC will necessarilyhaveto hearthePIO aswell.

8.3 In support of his submissions,Mr. Narayan had relied upon the judgmentof 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 acomplaintfiled underSection of

¶18That being said, in so far as the penaltyproceedingsare concerned,the observationscontainedthereinwould apply,albeit,at the appropriatestage. Forthe sakeofconvenience,the relevantobservationsmade by the Division BenchinAnkurMutreja'scase are extractedherein;

¶8It is clearfrom the languageofSection 20(1) that only the opinion, whetherthe InformationOfficerhas "withoutany reasonable cause" refused to receive the application,for informationor notfurnishedinformationwithin theprescribed 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 obviouslyhas to be after the decisionof the appeal. The relianceby 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 ofthe appeal.Significantly.Section19(10) ofthe Act requiresCIC to decide the appeal "in accordancewith,suchprocedureas may be prescribed".The saidproc'edureis 'prescribedin Section20 ofthe Act, whichrequiresthe CIC to, dfthe-time'ofdecidinsthe appealonlyform an opinionand'notto imposethe penalty.

¶9The aforesaidprocedure is even otherwisein consonance with logicandsettledlegalprocedures.At thestageofallowing the appeal the CIC can only form an opinion as to the intentionalviolation if any by the Information Officer of the provisionsof the Act. Significantly,impositionofpenaltydoes notfollow everyviolationof the Act but onlysuch violationsas are without reasonable cause, intentional and malafide.

¶10While 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 provisionsof the Act. A discretionhas been vestedin this regard with the CIC. The Act does notprovidefor the CIC to hear the complainant or the appellant in thepenalty Page 11 of14 n proceedings,though there is no bar also there againstifthe CJC so desires. However, the complai^^nf cannot as a matter ofriirhtclaim audience in the penaltyproceeding'swhich are between the CIC and the erring Information Officer. There is no provision in the Act for payment ofpenalty or any part thereofif imposed, to the complainant.Regulation21 of the Central Information Commission (Management)Regulations, 2007 though providesfor the CIC awarding such costs or compensationas it may deemfit but does notprovidefor such compensationto bepaidout ofthepenaltyifany imposed. The appellantcannot thus urge that it has a right to participatein thepenaltyproceedingsfor thesaidreasoneither.

¶11The penalty proceedings are akin to contempt proceedings, the settled position with respect whereto is that after brinsins the facts to the notice ofthe Court, it becomes a matter between the Court and the contemnor and the informant or the relator who has brousht the factum ofcontempt havme been committed to the notice of the Court does not become a complainant or petitionerin the contemptproceedings.His duty ends with the facts beingplaced before the Court thoush the Court may in appropriatecases seek his assistance.Referencein this regard may be made to Om PrakashJaiswalv-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 proceedingsunder.Order XjOHX, Rule 2A of the CivilProcedure Code, 1908 whichproceedings are also penal in nature.

¶12Notice 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 havingmade 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. " (emphasis is mine)

¶9The view taken by the DivisionBench of this Courtin AnkurMutreja Page 12 of14 (supra) has been followedin 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 nutshellwhat emerges is that the CIC, while deciding an applicationunder Section 18, if satisfied,that a reasonablegroundobtainsto inquireinto the matter,is requiredto make an inquiryand, thereafter,if satisfiedas to the veracityof the avermentsmade inthecomplaint,is empoweredto initiatepenaltyproceedingsunderSection 20 of the RTI Act.

¶10The 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 complaintwhichwas that there was unexplaineddelay in fiimishingthe information,in my view, is an aspect to which the CIC did not apply its mind to. ^

¶11Therefore,for the foregoing-reasons^ I am inclinedto set aside the order dated 18.06.2015. It is directed accordingly. Conclusion;

¶12The CIC will hear the petitioner afresh and decide the matter in consonancewith the regimeof Section 18 and otherattendantprovisionsof 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). Page 13 of14

¶13The writ petition is disposedof in the aforesaidterms. There shall, however, be no order as to cost. AUGUST 02, 2018 hs lc^\A' (RAJIV SHAKDHER) JUDGE Page 14of14

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.rO No.6436/2016 Judgmentreservedon: 08.05.2018 Judgmentpronouncedon: 02.08.2018 M. L. SHARMA Petitioner Through: Mr. R.K. Saini, Advocate with petitioner in person. versus CENTRAL INFORMATION COMMISSION &ORS. ....Respondents Through; .Mr. GautamNarayan,ASC with Ms. Mahamaya Chatterjee,Advocate for GNCTD. CORAM: HON'BLE MR. JUSTICE RAJIV SHAKDHER