O R D E R:
Present complaint has been filed by Ashish Sharma (hereinafter referred to as the complainant) under Section 35 of the Consumer Protection Act 2019 (hereinafter referred to as the Act) against Mr. Ashok Sharma (hereinafter referred to as the OP No.1), Mr. Neeraj Gupta (hereinafter referred to as the OP No.2) and Mr. Amarjeet (hereinafter referred to as the OP No.3), on account of deficiency in service and unfair trade practice, seeking relief therein that the OPs be directed to pay Rs.2.00 crores alongwith interest etc.
2. The case of the complainant in brief is that the complainant is a resident of above mentioned address and served as a Computer Teacher in Dayanand Public School, The Mall,
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Shimla. It is stated that under RTI Act the complainant tried to execute his fundamental right and demanded certain information from the OP No.1 on 23.08.2021 and fees was charged for the service under RTI act, which was duly paid. It is stated that as per the Act, within 30 days a reply was to be given, but, intentionally those replies were not supplied to complainant, till date. It is stated that thereafter the complainant applied to the OP No.2 on 07.10.2021 for the same, which is the next dealing authority. It is stated that as per the act, within 35 days the OP No.2 is required to give reply, but intentionally, till date no information was provided. It is stated that both OPs No.1 & 2 are duty bound as per the service rules under RTI Act and as per the order of OP No.3 passed in 2019. It is stated that OPs No.1&2 failed to provide service in a stipulated time and OP No.3 has not taken any action as per service rules, so backhand support and his involvement cannot be neglected. It is stated that as per RTI act, the complainant was also ready to pay additional amount of Rs. 2/- per page for the photocopy for the documents regarding the information, but still, intentionally they have not provided that information. It is stated that OPs No.1&3 were fully aware about the importance of that information as the same was helpful for the complainant to defend his illegal suspension case, but intentionally the information was not provided. It is stated that due to their deficiency of service, the complainant lost his Job from which he was having income of Rs.55,000/- per month. It is stated that as a consumer, complainant applied for the service and for this service advance fees was charged by OPs under RTI Act and by charging fee for giving information becomes a type of contract between the parties for the delivery of information. It is stated that aforesaid acts on the part of the OPs amount to deficiency in service and unfair trade practice. It is prayed that the complaint may be allowed.
3. After admission of complaint, notices were issued to the OPs. The complaint so filed has been opposed by the OP
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No.1 by filing reply taking preliminary objections therein regarding maintainability, non-joinder of necessary party, complainant is not a consumer, Jurisdiction etc. It is admitted that the complainant demanded certain information from the replying OP on 23.08.2021. It is stated that as per Section 27 sub Clause (2) of the Rule 3, it is required to make separate RTI application for every subject and years respectively and the complainant has not made any application under the ibid rules. It is stated that the OP No.1 requested the Principal Dayanand Public School, The Mall, Shimla to supply the desired information sought for by the complainant, but in response the above authorities denied to supply the information with the reason that disciplinary action has already been initiated by the school against the complainant and proceedings against the complainant are in progress. It is stated that there is no direct and proximate connection between the non-supply of information to the complainant and loss of job by the complainant. It is stated that complainant was working in a privately managed school i.e. Dayanand Public School, The Mall, Shimla. It is stated that as per Bye-laws of the Central Board of School Education, all the appointments and dismissal of service of the teaching and Non teaching staff in the privately managed schools are made by the management of that school. It is stated that the complainant had not lost his job due to replying OP. It is stated that there is no roll of OP No.1 regarding appointment or dismissal of complainant. It is stated that matter of RTI comes under the jurisdiction of Hon'ble State Information Commission, Shimla, and the complainant had also filed appeals before the Competent Authority i.e. Hon'ble State Information Commission Shimla. It is stated that there is neither any deficiency in service nor unfair trade practice on the part of the replying OP and prayed that the complaint may be dismissed.
4. The complaint so filed has been opposed by the OP No.2 by filing reply taking preliminary objections therein
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regarding maintainability, non-joinder of necessary party, complainant is not a consumer, Jurisdiction etc. It is stated that the complainant willfully and intentionally had not arrayed officials of the Dayanand Public School, Shimla. It is stated that the information sought for by the complainant is under the custody of Principal, Dayanand Public School, Shimla. It is admitted that the complainant sought the information under RTI Act, 2005 related to Dayanand Public School, The Mall, Shimla from the OP No.1, being a PIO of Privately Managed Schools of District Shimla. It is stated that the OP No.1 sought that information from the Principal, Dayanand Public School, The Mall Shimla, but the Principal has refused to give the information because as per him his institution school is not a Public Authority within the meaning of Section 2(h) of the Right to Information Act, 2005. It is stated that Right to Information Act is itself a complete Act and procedure is prescribed in the Act in case relevant information is not provided to any person under RTI Act. It is stated that complainant has exhausted all the remedies available to him under RTI Act and had filed this complaint just to harass public servants by demanding an exaggerated compensation on the basis of hypothetical imagination. It is stated that complainant had sent a complaint through e-mail to the replying OP, which was found in the Directorate alongwith the enclosures of appeal filed by complainant before the HPSIC, Shimla. It is stated that the complaint of the complainant was not put before the OP No. 2 because the complainant had filed the complaint to the First Appellate Authority, Directorate of Higher Education, H.P. It is stated that the appeal could not be listed for hearing because of the reason that the said email ID was not working properly, at that time. It is stated that the complainant had not filed proper appeal under RTI Act, 2005 to the First Appellate Authority. It is stated that thereafter, according to the provisions contained in the RTI Act, 2005, the complainant filed second complaint/appeals
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before the competent authority and the same were decided on 14.03.2022 and 25.06.2022. It is stated that OP No.1 was unable to provide the information related to Dayanand Public School, Shimla, because the requisite information was under the custody of Principal, Dayanand Public School and the said Principal of that school has refused to give the information with the remarks that "our institution/school is not a public authority within the meaning of Section 2(h) of the Right to Information Act, 2005."
It is stated that the Job of the complainant was not lost due to replying OP and the loss shown by complainant is based on his guess, surmises, conjecture and on his hypothetical imagination and is not based on the true facts. It is stated that there is neither any deficiency in service nor unfair trade practice on the part of the replying OP and prayed that the complaint may be dismissed.
5. The complaint so filed has been opposed by the OP No.3 by filing reply taking preliminary objections therein regarding maintainability, non-joinder of necessary party, complainant is not a consumer, Jurisdiction etc. It is stated that the complainant willfully and intentionally had not arrayed officials of the Dayanand Public School, Shimla. It is stated that the information sought for by the complainant is under the custody of Principal, Dayanand Public School, Shimla. It is admitted that the complainant sought the information under RTI Act, 2005 related to Dayanand Public School, The Mall Shimla from the OP No.1, being a PIO of Privately Managed Schools of District Shimla. It is stated that the OP No.1 sought that information from the Principal, Dayanand Public School, The Mall Shimla, but the Principal has refused to give the information because as per him his institution school is not a Public Authority within the meaning of Section 2(h) of the Right to Information Act, 2005. It is stated that Right to Information Act is itself a complete Act and procedure is prescribed in the Act in case relevant information is not provided to any person under RTI Act. It is stated that complainant has exhausted all the
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remedies available to him under RTI Act and had filed this complaint just to harass public servants by demanding an exaggerated compensation on the basis of hypothetical imagination. It is stated that complainant had sent a complaint through e-mail to the OP No.2, which was found in the Directorate alongwith the enclosures of appeal filed by complainant before the HPSIC, Shimla. It is stated that the complaint of the complainant was not put before the OP No. 2 because the complainant had filed the complaint to the First Appellate Authority, Directorate of Higher Education, H.P. It is stated that the appeal could not be listed for hearing because of the reason that the said email ID was not working properly, at that time. It is stated that the complainant had not filed proper appeal under RTI Act, 2005 to the First Appellate Authority. It is stated that thereafter, according to the provisions contained in the RTI Act, 2005, the complainant filed second complaint/appeals before the competent authority and the same were decided on 14.03.2022 and 25.06.2022. It is stated that OP No.1 was unable to provide the information related to Dayanand Public School, Shimla, because the requisite information was under the custody of Principal, Dayanand Public School and the said Principal of that school has refused to give the information with the remarks that "our institution/school is not a public authority within the meaning of Section 2(h) of the Right to Information Act, 2005."
It is stated that the Job of the complainant was not lost due to replying OP and the loss shown by complainant is based on his guess, surmises, conjecture and on his hypothetical imagination and is not based on the true facts. It is stated that there is neither any deficiency in service nor unfair trade practice on the part of the replying OP and prayed that the complaint may be dismissed.
6. The parties adduced evidence in support of their contentions. On behalf of the complainant rejoinder and evidence through affidavit was filed. Complainant has also filed documents in support of his contentions. On behalf of OP No.1
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affidavit of Ashok Kumar was tendered in evidence. On behalf of OP No.2 affidavit of Neeraj Kumar Gupta, was tendered in evidence. On behalf of OP No.3 affidavit of Dr. Amarjeet K. Sharma, was tendered in evidence. OPs have also filed documents in support of their contentions.
7. We have heard the complainant and learned ADA for the parties and have also gone through the entire record, carefully.
8. At the outset, it is pertinent to mention here that before entering into the merits of the case it is to be seen whether the complainant is a consumer and this Commission has jurisdiction to adjudicate the matter involved in the complaint. It is clear from the record that the complainant is aggrieved from the OPs because information as sought for by him under the RTI Act was not supplied by the OPs to him. The complainant sought information from OP No.1 mentioned in Annexure-1, and the same was not supplied. The complainant approached the OP No.2&3, but of no use. The plea of the complainant is that Ernakulam Consumer Disputes Redressal Forum (Kochi) has held that when information is denied to an RTI applicant, it will be considered as deficiency in service and the applicant will be entitled to compensation under the Consumer Protection Act and this Commission has jurisdiction to try and adjudicate the matter involved in the complaint. The stand of the OPs on the other is that the complainant is not a consumer and this Commission has no jurisdiction to try and adjudicate the matter involved in the complaint on merits as the jurisdiction of this Commission is barred under Section 23 of the RTI Act, 2005. It is further stand of the OPs that the matter regarding RTI comes under the jurisdiction of Hon'ble HPSIC and the complainant has already filed appeal before the Hon'ble HPSIC. It is stated in the complaint that the OPs failed to provide information to complainant as was sought and therefore, they are liable to pay compensation to the complainant and at the same time criminal
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case may be registered against the OPs under the provisions of law for criminal offences. However, the fact remains that the main grievance of the complainant is regarding information which he has sought from the OPs as per Annexure C-1, but the stand of the OPs is that the complainant is not a consumer and this Commission has no jurisdiction to decide the matter on merits. The complainant has also cited case law in the complaint itself in support of his case. Now, in the rival contentions raised by the parties to this complaint, simple question for determination in this complaint is that whether the complainant is a consumer and this Commission has the jurisdiction to entertain and try the complaint or not. In this regard, the Hon'ble National Consumer Disputes Redressal Commission in RP No. 3146 of 2012 titled Sanjay Kumar Mishra Versus Public Information Officer, decided on 08.01.2015, alongwith other revision petitions, has dealt with the issue whether a person seeking information under RTI Act can be said to be a consumer vis-a-vis the Public Authority concerned or CPIO/PIO nominated by it and the jurisdiction of the Consumer Commissions to intervene in the matters arising out of the provisions of the RTI Act is barred by necessary implication as also under the provisions of Section 23 of the RTI Act. It was held that no complaint by a person alleging deficiency in service rendered by the CPIO/PIO is maintainable before a Consumer Forum. It was also held that the RTI Act also provides a special mechanism for enforcement of rights under the said Act and jurisdiction of the Courts has been barred under Section 23 of the Act. It was further held that for the purpose of Section 23 of the RTI Act, the Consumer Commission/Forum is also a Court. It was further held that any other interpretation will open two parallel machineries for enforcement of the same rights created by a special statue, which could not have been the legislative intent, particularly when the RTI Act is a special law vis-a-vis Consumer Protection Act. It was further held that ambit of RTI Act is confined to one
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service i.e. supply of information, whereas the Consumer Protection Act deals with deficiencies in a wide variety of services rendered for consideration and the purpose behind ousting the jurisdiction of the civil court is to exclude invocation of a redressal mechanism other than that provided under the special act and aforesaid object is bound to be frustrated if while ousting the jurisdiction of the Consumer Forum which is not a redressal mechanism provided under the Special Act, is allowed.
9. Moreover, as per material on record, it is clear that the complainant had filed appeal(s) before the Hon'ble State Information Commission and in this way, he has already availed the remedy available to him under the RTI Act and the appeal(s) has/have already been decided by the Hon'ble State Information Commission.
10. The controversy involved in the present complaint is squarely covered by the aforesaid decision of the Hon'ble National Consumer Disputes Redressal Commission, hence we are of the opinion that case laws cited by the complainant in support of his arguments are of no help to him and complaint deserves to be dismissed being complainant not a consumer.
11. In view of the foregoing discussion and reasons assigned therein the complaint is ordered to be dismissed, leaving the parties to bear their own costs. Pending application(s), if any, shall also stands disposed of. Copy of this order be supplied to the parties free of cost as per rule. The file after its due completion be consigned to the Record Room. Announced on this the 24thday of January, 2024. (Dr. Baldev Singh)
President
(Jagdev Singh Raitka)
*GUPTA* Member