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CIC levy a penalty on PIO for Delay in RTI reply

CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office),  Old JNU Campus, New Delhi – 110067
Tel: +91-11-26161796

Decision No. CIC/SG/A/2010/001952/9114 Penalty-I

Appeal No. CIC/SG/A/2010/001952

Relevant Facts emerging from the Appeal:

Appellant : Mr. Ravinder Jain 85/6, B-2, East Moti Bagh,Old Rohtak Road, Sarai Rohilla, Delhi – 110007

Respondent : Mr. Rajesh Kumar, Deemed PIO & JE(B)
Municipal Corporation of Delhi, O/o the Superintending Engineer Idgah Road, Sadar Pahar Ganj Zone, New Delhi

RTI application filed on : 06/01/2010

PIO replied : 05/02/2010

First appeal filed on : 05/04/2010

First Appellate Authority order : 07/06/2010

Second Appeal received on : 12/07/2010

Information Sought

The Appellant sought information regarding

That whether there exists any property by the No.WZ- 14/18 East Moji Bagh, Sarai Rohilla, Old Rohtak Road, Opp. Flyover stairs, Delhi in municipal records?

Who are the recorded owners/occupiers of the said property as per Municipal records? Whether the said property is assessed to house tax if so in whose name? Whether any sanctioned plan has been obtained for the construction already raised and being raised on the said property?

Whether after the demolition proceedings any constructions has been authorized or sanctioned by the municipal authorities?

Whether the occupants have paid any compounding fee to the, municipal authorities if so the amount and the construction compounded by the authorities?

Whether the said property has been hooked by the officials of MCD. Sadar Pahar Ganj Zone for unauthorized constructions?

Whether the occupants have encroached upon the Municipal land without having any right thereto? If so, the action being taken against the occupants by the municipal authorities for removal of the encroachment?

Reply of the Public Information Officer (PIO)

Query 1 3 The information regarding these queries is unavailable. Query 4 9 These queries pertain to the Building Department.

Grounds for the First Appeal:  Unsatisfactory information provided by the PIO.

Order of the First Appellate Authority (FAA):

The FAA directed the PIO to furnish complete information in queries 4 to 9 within 10 days.

Relevant Facts emerging during hearing dated 30/08/2010:

The following were present

Appellant: Mr. Ravinder Jain;

Respondent: Mr. N. K. Gupta, Public Information Officer & SE; “The PIO admits that no information has been provided to the appellant. The PIO claims that he asked the deemed PIO/EE(B) Mr. A. K. Singh to give the information on 12/01/2010 and then again on 03/02/2010. He also states that after the order of the FAA he had marked the copy of the Appellate Authority’s order on 08/06/2010 to EE(B) Mr. A. K. Singh. He also states that on receiving the notice of hearing from the Commission he has informed EE(B) to attend the hearing alongwith the records. He also shows that he has issued a showcause notice on 04/08/2010 to Mr. S. R. Lakhan, EE(B) who has taken charge from Mr. A. K. Singh on 05/06/2010 for not providing the information. The PIO has again given another showcause notice to deemed PIO Mr. S. R. Lakhan on 25/08/2010 for not providing the information nor providing any reply to the showcause notice. From the submissions of the PIO it appears that MCD is operating without any administrative control over their Junior officers. The Commission directs the Municipal Commissioner to inquire into this complete dereliction of duty and defiance of Senior Officers by the Executive Engineers.

It appears that Mr. A. K. Singh and Mr. S. R. Lakhan have not responded tot eh RTI query though the assistance was sought under Section 5(4) of the RTI Act.”

Decision dated 30/08/2010:

The Appeal was allowed.

“The PIO Mr. N. K. Gupta is directed to ensure that the information regarding query- 4 to 9 are supplied to the appellant before 10 September 2010.

The issue before the Commission is of not supplying the complete, required information by the deemed PIOs Mr. A. K. Singh and Mr. S. R. Lakhan within 30 days as required by the law. From the facts before the Commission it is apparent that the deemed PIOs are guilty of not furnishing information within the time specified under sub-section (1) of Section 7 by not replying within 30 days, as per the requirement of the RTI Act. It appears that the deemed PIOs actions attract the penal provisions of Section 20 (1). A showcause notice is being issued to them, and they are directed give their reasons to the Commission to show cause why penalty should not be levied on them.

Mr. A. K. Singh and Mr. S. R. Lakhan will present themselves before the Commission at the above address on 04 October 2010 at 02.30PM alongwith their written submissions showing cause why penalty should not be imposed on them as mandated under Section 20 (1). It also appears that they persistently refused to give the information inspite of repeated reminders to the appellant hence the Commission is also considering recommending disciplinary actions under Section 20(2) against them.

If there are other persons responsible for the delay in providing the information to the Appellant the PIO is directed to inform such persons of the show cause hearing and direct them to appear before the Commission with him.”

Facts leading to showcause hearing on 25/10/2010:

During the hearing held on 04/10/2010, Mr. A. K. Singh stated that the RTI application dated 06/01/2010 was received at his office on 12/01/2010. The said application was forwarded to the AE (B), Ward No. 75 on 21/01/2010, which was further sent to Mr. Vijay Jadhav, the then JE (B), MCD (S. P. Zone) on 29/01/2010. Further, Mr. S. R. Lakhan submitted that he took charge of the office of EE (B) on 09/06/2010. He received the order of the FAA dated 07/06/2010 on 09/06/2010 and transferred the same to Mr. Ajay Chaudhry, AE (B) on 11/06/2010. The order of the FAA was received by Mr. Ajay Chaudhry on 17/06/2010, which was forwarded to Mr. Rajesh Kumar, JE (B). Mr. Lakhan also stated that a reminder was sent to Mr. Shailesh Kumar, AE (B) on 11/06/2010, which was subsequently held by Mr. Rajesh Kumar, JE (B).

In view of the aforesaid, the Commission decided to schedule another hearing on October 25, 2010 at 3:30 pm. Mr. Vjay Jadhav, JE(B) and Mr. Rajesh Kuamr, JE(B) were therefore directed to appear before the Commission on 25/10/2010 along with their written submissions to show cause why penalty should not be imposed on you under Section 20 of the RTI Act.

Relevant facts that emerged during the show cause hearing on 25/10/2010: Appellant: Mr. Ravinder Jain;

Respondent: Mr. Vijay Jadhav, Deemed PIO & JE(B);

“The deemed PIO & JE(B) Mr. Vijay Jadhav has admitted that the RTI application dated 06/01/2010 was received by him on 29/01/2010. The complete and correct information should have been provided to the Appellant on or before 07/02/2010, however the complete and correct information has been provided to the Appellant vide letter dated 01/09/2010.

When the Commission asked Mr. Jadhav the reason for not providing the information within the mandated time period as per the RTI Act. Mr. Jadhav stated that he was transferred from the concerned area i.e. Ward no. 75 on 12/05/2010. It appears that there has been a delay of 94 days on the part of the deemed PIO & JE(B) Mr. Vijay Jadhav.

Mr. Rajesh Kumar has not appeared and one more opportunity is being given to him by a showcause to appear before the Commission to give his explanation for the delay. If Mr. Rajesh Kumar does not appear in the next hearing the Commission will assume that he has no explanation to offer for the delay and will impose penalty on him as per Section 20(1) of the RTI Act.

The Commission again asked Mr. Jadhav to explain the reasons for the delay of 94 days. Infact Mr. Jadhav did not provide the information at all. He states that it is the first time that he has defaulted in providing the information under RTI.”

Note: The Commission penalized Mr. Vijay Jadhav, Deemed PIO & JE(B) AT the rate of `250/- per day of delay for 94 days i.e. `250 X 94 days = `23,500/-

Facts leading to showcause hearing on 15/12/2010:

During the hearing held on 25/10/2010 the deemed PIO & JE(B) Mr. Rajesh Kumar did not appear before the Commission. Therefore, the Commission directed the deemed PIO & JE(B) Mr. Rajesh Kumar to present himself before Commission on 10/12/2010 at 11:00 am along with his written explanations to show cause why penalty should not be imposed and disciplinary action not be recommended against you for defying the orders of the commission and failing to comply with the FAA’s order dated 07/06/2010. However, on 10/12/2010 Mr. Rajesh Kumar informed the Commission on phone that since his maternal uncle passed away on 09/12/2010, he was unable to appear before the Commission on 10/12/2010. Hence the Commission rescheduled the showcause hearing on 15/12/2010 and directed Mr. Rajesh Kumar to appear before the Commission on 14/12/2010 at 02:30pm.

Relevant facts emerging during the showcause hearing on 14/12/2010: Appellant: Mr. Ravinder Jain;

Respondent: Mr. Rajesh Kumar, Deemed PIO & JE(B);

Mr. Rajesh Kumar has accepted that the FAA’s order dated 07/06/2010 was forwarded to him on 17/06/2010. Mr. Rajesh has claimed that he had provided the information to the Appellant through UPC on 24/06/2010. He has also submitted the original UPC receipt dated 24/06/2010 to the Commission. The Appellant had never received the said reply, however, he received the complete information only on 01/09/2010. The FAA in its order dated 07/06/2010 directed to provide the complete information within 10 days. Since the said order was received by Mr. Rajesh Kumar on 17/06/2010, hence the information should have been provided by Mr. Rajesh Kumar before 27/06/2010. Mr. Rajesh has stated that he was transferred from ward no. 75 vide order dated 28/07/2010. Hence he is responsible till 27/07/2010 only.

On perusal of the UPC receipt it appears that the receipt is fairly recent and the Commission received various Complaints from the Appellant alleging that the information sent by the UPC are never received. The Commission has repeatedly informed all PIOs that it will accept only speed post receipts as proof that the communication was sent to an RTI applicant. In the instant case the information was not received by the applicant and the UPC receipt produced by the deemed PIO Mr. Rajesh Kumar, JE is looking freshly done thought it has post mark date of 24/06/2010. The Commission does not think any concrete evidence has been produced before the Commission to show that the information was sent to the Appellant on 24/06/2010.

Section 20 (1) of the RTI Act states, “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.”

A plain reading of Section 20 reveals that there are three circumstances where the Commission must impose penalty:

1) Refusal to receive an application for information.

2) Not furnishing information within the time specified under sub-section (1) of section 7 30 days. 3) Malafidely denying the request for information or knowingly giving incorrect, incomplete or misleading information or destroying information which was the subject of the request 4) Obstructing in any manner in furnishing the information.

All the above are prefaced by the infraction, ‘ without reasonable cause’.

Section 19 (5) of the RTI Act has also stated that “In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.”

Thus if without reasonable cause, information is not furnished within the time specified under sub-section (1) of section 7, the Commission is duty bound to levy a penalty at the rate of rupees two hundred and fifty each day till the information is furnished. Once the Commission decides that there was no reasonable cause for delay, it has to impose the penalty at the rate specified in Section 20 (1) of the RTI Act and the law gives no discretion in the matter. The burden of proving that denial of information by the PIO was justified and reasonable is clearly on the PIO as per Section 19(5) of the RTI Act.

Since the order of the FAA was received by Mr. Rajesh Kumar on 17/06/2010, hence the information should have been provided to the Appellant before 27/06/2010. Mr. Rajesh has stated that he was transferred from ward no. 75 vide order dated 28/07/2010. Hence he is responsible till 27/07/2010 only. In view of this the Commission holds Mr. Rajesh Kumar, JE & Deemed PIO for the delay of 30 days i.e. from 27/06/2010 to 27/07/2010. Since no reasonable cause has been offered by Mr. Rajesh Kumar, JE & Deemed PIO the Commission sees this as a fit case for levy of penalty under Section 20(1) of the RTI Act on Mr. Rajesh Kumar at `250/- per day of delay for 30 days i.e. `250/- X 30 days = `7500/-.

Decision:

As per the provisions of Section 20 (1) RTI Act 2005, the Commission finds this a fit case for levying penalty on Mr. Rajesh Kumar, JE & Deemed PIO. Since the delay in providing the correct information has been of 30 days, the Commission is passing an order penalizing Mr. Rajesh Kumar `7500/-.

The Commissioner, Municipal Corporation of Delhi is directed to recover the amount of `7500/- from the salary of Mr. Rajesh Kumar and remit the same by a demand draft or a Banker’s Cheque in the name of the Pay & Accounts Officer, CAT, payable at New Delhi and send the same to Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary of the Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi 110066. The amount may be deducted at the rate of `3750/ per month every month from the salary of Mr. Rajesh Kumar and remitted by the 10th of every month starting from January 2011. The total amount of `7500/- will be remitted by 10th of February 2011. .

This decision is announced in open chamber.

Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.

Shailesh Gandhi
Information Commissioner
14 December 2010

(In any correspondence on this decision, mention the complete decision number.)(YM)

1- Commissioner, Municipal Corporation of Delhi, Town Hall, Delhi- 110006
2. Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary
Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi 110066

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