1. The Appellant vide his RTI application sought information on 04 points regarding the certified copy of the accommodation allotment registers of officers and staff guest house of Income Tax Department at Gwalior from 01.11.2017 to 30.09.2018 other than those officers/officials (department/other departments) who visited Gwalior for various official work including investigation etc.; the name & designation of officer/officials who were posted at Gwalior on transfer & stayed in the guest house of IT Department at Gwalior and the amount paid by them during 01.11.2017 to 30.09.2018 and other issued related thereto.
2. The CPIO, vide its letter dated 02.01.2019 while relying upon the decision of the Commission in Appeal No. CIC/DGIBH/A/2018/157969-BJ dated 08.11.2018 denied disclosure of information u/s 8(1)(g) & 8(1)(h) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 06.02.2019 provided additional point-wise clarifications to the Appellant as per the grounds of Appeal wherein for ground no. 2.4 of the Appeal, the CPIO was advised to provide the information regarding the number of officials who stayed in the guest house during 01.11.2017 to 30.09.2018 if the same was available in the manner it was sought by the Appellant and for other points, upheld the CPIO's response.
Hearing:
Facts emerging during the hearing:
3. The following were present:
Appellant: Mr. K.K. Garg through VC;
Respondent: Mr. Vipin Varghese, ITO, Gwalior, Mr. Sunny Bhargava, ITO, Ward 1(1), Gwalior and Mr. Amit Kumar Barnwal, ITO, Gwalior and Mr. P.C. Gautam, AO through VC;
4. The Appellant reiterated the contents of the RTI application and stated that information on only point No. 02 of the RTI application was provided and the remaining points remained unanswered. He referred to his written submission dated 17.12.2019 and alleged that the Guest House Accommodation related information was denied incorrectly since as per the extant guidelines of the CBDT dated 03.10.2013 a guest house could be used as transit accommodation for only a maximum period of 03 months and not beyond which was not complied with by the Respondent Public Authority. He also submitted that denial of information under Section 8(1)(g) and (h) was not correct since he was only seeking information about those officers who were not official and sensitive work such as investigation matters. In its reply, the Respondent stated that point-wise response was given to the Appellant by the CPIO/FAA. A reference was also made to Section 8(1)(g) and (h) of the RTI Act, 2005 as also the decision of the Commission in Appeal No. CIC/DGIBH/A/2018/157969-BJ dated 08.11.2018 wherein on similar issues the Commission upheld the decision of the CPIO. The Appellant, however, contested that information could be provided after redacting the details of the employees other than those involved in investigation residing in the Guest House for the period mentioned in the RTI application and that information on points 02 and 03 only pertained to the generic information regarding number of officers visiting Gwalior for various official work/investigation etc. The Appellant consistently sought compensation/damage under section 19(8)(b) of the RTI Act, 2005, for the alleged harassment and suffering caused to him.
5. The Commission was in receipt of a written submission from the Appellant dated 17.12.2019 wherein he referred to the decisions of the Hon'ble High Court of Bombay in the matter of Kashinath J. Shetye W.P. No 1 of 2009 dated 20.01.2009, decisions of the Commission in CIC/RM/A/2013/000513 dated 03.10.2013 and CIC/CC/A/2014/003027 dated 30.05.2016 and stated that as per Annexure VI of Departmental Guest House (Income Tax Department) Rules, 2013 a format of details required to be maintained in the allotment register was mentioned. Furthermore, as per guidelines issued by the CBDT dated 03.10.2013 for setting up, upgradation, maintenance and allotment of guest house in the IT Department, in the case of transfers the guest house shall not be treated as transit accommodation and permissible period of stay was only for a duration of 03 months. The CPIO failed to give reasons and justification for denying information as to how the decision of the Commission in CIC/DGIBH/A/2018/157969-BJ dated 08.11.2018 and the provisions of Section 8(1)(g) and (h) were applicable to the present case. Therefore, the Appellant inter alia prayed to direct the Respondent to provide point-wise information, initiate punitive action against the delinquent CPIO under Section 20(1) and 20(2) and compensate him under Section 19(8)(b) of the RTI Act, 2005.
6. The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
“information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”
7. Furthermore, a reference can also be made to the relevant extract of Section 2(j) of the RTI Act, 2005 which reads as under:
“(j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes……..”
8. In this context a reference was made to the Hon'ble Supreme Court decision in (2011) 8 SCC 497 (CBSE v. Aditya Bandopadhyay), wherein it was held as under:
35….. “It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”
9. Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah v. Administrative Officer Special Leave Petition (Civil) No. 34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. “….Under the RTI Act “information” is defined under Section 2(f) which provides:
“information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”
7. “….the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”
The Commission referred to the judgment of the Hon'ble Supreme Court of India in Girish Ramchandra Deshpande v. Central Information Commission SLP(C) No. 27734 of 2012 dated 03/10/2012 wherein it was held as under:
“13……The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.”
10. The Hon'ble Supreme Court of India in the matter of Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam, Civil Appeal No. 22 of 2009 dated 31.08.2017 had held as under:
“5) The information was sought on 15 parameters with regard to various aspects of transfers of clerical staff and staff of the Bank with regard to individual employees. This information was in relation to the personal details of individual employee such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders etc. etc
11) Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order and dismiss the application submitted by the 1st respondent under Section 6 of the Act.
12) In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in Girish Ramchandra Deshpande v. Central Information Commissioner, (2013) 1 SCC 212 and R.K. Jain v. Union of India, (2013) 14 SCC 794, 5 it may not be necessary to re-examine any legal issue urged in this appeal.
14) In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by respondent No. 1 of individual employees working in the Bank was personal in nature; secondly, it was exempted from being disclosed under Section 8(j) of the Act and lastly, neither respondent No. 1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee and nor any finding was recorded by the Central Information Commission and the High Court as to the involvement of any larger public interest in supplying such information to respondent No. 1.”
11. With regard to the imposition of penalty on the CPIO/PIO under Section 20 of the RTI Act, 2005, the Commission took note of the ruling of Hon'ble Delhi High Court in W.P.(C) 11271/2009 Registrar of Companies v. Dharmendra Kumar Garg (delivered on: 01.06.2012) wherein it was held:
“61. Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a showcause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to ful fill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute.”
12. Similarly, the following observation of the Hon'ble Delhi High Court in Bhagat Singh v. CIC WP(C) 3114/2007 are pertinent in this matter:
“17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued.”
13. Furthermore, the High Court of Delhi in the decision of Col. Rajendra Singh v. Central Information Commission WP (C) 5469 of 2008 dated 20.03.2009 had held as under:
“Section 20, no doubt empowers the CIC to take penal action and direct payment of such compensation or penalty as is warranted. Yet the Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely.
……The preceding discussion shows that at least in the opinion of this Court, there are no allegations to establish that the information was withheld malafide or unduly delayed so as to lead to an inference that petitioner was responsible for unreasonably withholding it.”
14. The Commission also observed that the Hon'ble High Court of Delhi in the matter of R.K. Jain v. V.P. Pandey, CPIO, CESTAT, New Delhi in W.P. (C) No. 4785/2017 dated 10.10.2017 adjudicated on the correctness of an order of the Commission dated 17.04.2017 whereby the Respondent was cautioned to exercise due care in future and to ensure that correct and complete information is furnished to the RTI applicants. It was decided that:
“2. The grievance of the petitioner is that although the CIC had accepted that there was a delay in providing the necessary information to the petitioner, the CIC had not imposed the penalty as required under Section 20(1) of the Right to Information Act, 2005. It is well settled that imposing of the penalty is a discretionary measure. In Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 a division bench of this Court had considered the question whether the levy of penalty was discretionary and held as under……….
3. In this case it is apparent that the CIC had in its discretion considered that a order cautioning the CPIO would be sufficient. This Court is not inclined to interfere with such exercise of discretion”
15. Furthermore, the Hon'ble High Court in the matter of RK. Jain v. CIC in W.P.(C) 4152/2017 dated 10.10.2017 had held as under:
“5. The question whether the CIC had the discretion to restrict the penalty or whether penalty as provided under Section 20 of the Act is mandatory, is no longer res integra. The said question was considered by a Division Bench of this Court in Anand Bhushan v. RA. Haritash: ILR (2012) 4 Delhi 657 and the relevant extract of the said decision is set out below…
6. In view of the above, this Court finds no reason to interfere with the discretion exercised by the CIC. The petition is, accordingly, dismissed.”
16. Moreover, similar issues were heard and adjudicated by the Commission in CIC/DGIBH/A/2018/157969-BJ dated 08.11.2018.
DECISION
17. Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above, no further intervention of the Commission is warranted in the matter.
18. The Appeal stands disposed accordingly.