Central Information CommissionDr Sagar Mitrajit Gaikwad vs Department Of Health & Family Welfare on 18 February, 2020के ीय सूचना आयोग\n                             Central Information Commission\n                                   बाबा गंगनाथ माग, मुिनरका\n                              Baba Gangnath Marg, Munirka\n                                नई द ली, New Delhi - 110067\n\nि तीय अपील सं या / Second Appeal No.:- CIC/MOHFW/A/2018/610798-BJ-Penalty\n\nDr. Sagar Mitrajit Gaikwad\n\n                                                                  ....अपीलकता/Appellant\n\n                                        VERSUS\n                                         बनाम\n\nCPIO\nMinistry of Health and Family Welfare\nDept. of Health and Family Welfare\nNirman Bhawan, New Delhi - 110011\n                                                               ... ितवादीगण /Respondent\n\nDate of Hearing      :                     17.02.2020\nDate of Decision     :                     18.02.2020\n\nDate of RTI application                                                 04.11.2017\nCPIO's response                                                         Not on Record\nDate of the First Appeal                                                09.12.2017\nFirst Appellate Authority's response                                    Not on Record\nDate of diarised receipt of Appeal by the Commission                    Nil\n\n                                           ORDERFACTS:The Appellant vide his RTI application sought information on 05 points regarding the copy of\ncomplete file or proceeding or minutes or all information available which led to inclusion of\ndiploma courses of college ofPhysicians and Surgeons, Mumbai, in First Schedule of the MCI\nAct, 1956, by Gazette Notification dated 17th October, 2017 and issues related thereto.Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the\nFAA. The reply of the CPIO/ order of the FAA, if any is not on the record of the Commission.HEARING:Facts emerging during the hearing:The following were present:Page 1 of 7Appellant: Dr. Sagar Mitrajit Gaikwad, arrived late, through VC;Respondent: Mr. Amit Biswas, US, MoHFW and                           Mr.    D.    V.   K.    Rao,\nDy. Secretary (Former CPIO);The Appellant remained absent during the hearing. Mr. Mohan Kumar, DIO NIC studio at\nSolapur confirmed the absence of the Appellant. However, the Appellant arrived after\ncompletion of the hearing and while tendering his unconditional apology for the delay in arrival\nsubmitted that the information sought was not received by him, till date. On being enquired by\nthe Commission whether any e-mail/speed post was received from the Respondent, the Appellant\nacknowledged that an e-mail had been received but he had not yet perused the same. In its reply,\nthe Respondent while tendering unconditional apology for ignoring the initial response to the\nRTI application informed the Commission that 500 pages of information had since been\nfurnished to the Applicant through speed post and e-mail. The former CPIO, Mr. D. V. K. Rao,\nDy. Secretary present at the hearing profusely pleaded for pardon for the delay that occurred due\nto other pressing legal work in the Ministry. The Commission was in receipt of a written\nsubmission from the Respondent dated 14th February, 2020, wherein it was submitted that the\nMinistry had given reply to the Applicant on 12.02.2020 without receiving requested money.\nFurthermore, it was submitted that the Ministry also keeps updating and uploading information\non its official site.The Commission referred to the definition of informationu/s 2(f)of the RTI Act, 2005 which is\nreproduced below:"information" means any material in any form, including records, documents, memos, e-\n       mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report,\n       papers, samples, models, data material held in any electronic form and information\n       relating to any private body which can be accessed by a public authority under any other\n       law for the time being in force."Furthermore, a reference can also be made to the relevant extract ofSection 2 (j)of the RTI Act,\n2005 which reads as under:"(j) right to information" means the right to information accessible under this Act which\n       is held by or under the control of any public authority and includes ........"In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC\n497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor\n       required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to\n       'opinion' or 'advice' in the definition of 'information' insection 2(f)of the Act, only\n       refers to such material available in the records of the public authority. Many public\n       authorities have, as a public relation exercise, provide advice, guidance and opinion to\n       the citizens. But that is purely voluntary and should not be confused with any obligation\n       under theRTI Act."Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative\nOfficer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010)\nhad held as under:6. "....Under the RTI Act"information" is defined underSection 2(f)which provides:Page 2 of 7"information" means any material in any form, including records, documents, memos, e-\n       mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report,\n       papers, samples, models, data material held in any electronic form and information\n       relating to any private body which can be accessed by a public authority under any other\n       law for the time being in force."This definition shows that an applicant underSection 6of the RTI Act can get any\n       information which is already in existence and accessible to the public authority under\n       law. Of course, under theRTI Actan applicant is entitled to get copy of the opinions,\n       advices, circulars, orders, etc., but he cannot ask for any information as to why such\n       opinions, advices, circulars, orders, etc. have been passed."7. "....the Public Information Officer is not supposed to have any material which is not\n       before him; or any information he could have obtained under law. UnderSection 6of\n       the RTI Act, an applicant is entitled to get only such information which can be accessed\n       by the "public authority" under any other law for the time being in force. The answers\n       sought by the petitioner in the application could not have been with the public authority\n       nor could he have had access to this information and Respondent No. 4 was not obliged\n       to give any reasons as to why he had taken such a decision in the matter which was\n       before him."Having heard both the parties and on perusal of the available records, the Commission at the\noutset was appalled to learn about the callous and casual approach exhibited by the Respondent\nPublic Authority Officials in replying to the RTI application/ First Appeal. The Commission\nobserved that theRTI Act, 2005stipulates time limits in its various provisions relating to\nresponding to RTI Applications, transfer of applications, filing and disposing of first appeal to\nensure that a culture of information dissemination is strengthened so that a robust functioning of\nthe democracy gets established. This was recognised by the Hon'ble High Court of Delhi inMujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April,\n2009) wherein it was held as under:"14.......The court cannot be unmindful of the circumstances under which the Act was\n       framed, and brought into force. It seeks to foster an "openness culture" among state\n       agencies, and a wider section of "public authorities" whose actions have a significant or\n       lasting impact on the people and their lives. Information seekers are to be furnished\n       what they ask for, unless the Act prohibits disclosure; they are not to be driven away\n       through sheer inaction or filibustering tactics of the public authorities or their officers.\n       It is to ensure these ends that time limits have been prescribed, in absolute terms, as\n       well as penalty provisions. These are meant to ensure a culture of information\n       disclosure so necessary for a robust and functioning democracy."With regard to providing a clear and cogent response to the Appellant, the Commission referred\nto the decision of the Hon'ble Delhi High Court inJ P Aggarwal v. Union of India (WP (C) no.\n7232/2009 wherein it was held that:" 7"it is the PIO to whom the application is submitted and it is who is responsible for\n       ensuring that the information as sought is provided to the applicant within the\n       statutory requirements of the Act.Section 5(4)is simply to strengthen the authority of\n       the PIO within the department; if the PIO finds a default by those from whom he hasPage 3 of 7sought information. The PIO is expected to recommend a remedial action to be taken".The RTI Actmakes the PIO the pivot for enforcing the implementation of the Act."8.............The PIO is expected to apply his / her mind, duly analyse the material before\n       him / her and then either disclose the information sought or give grounds for non-\n       disclosure."Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA\nNo. 369/2018, dated 29.08.2018, held as under:"9................................ That apart, the CPIO being custodian of the information or the\n       documents sought for, is primarily responsible under the scheme of theRTI Actto supply\n       the information and in case of default or dereliction on his part, the penal action is to be\n       invoked against him only."A reference can also be made to the decision of the Hon'ble High Court of Himachal Pradesh in\nthe matter of Block Development Officer, Paonta Sahib vs. State Information Commission and\nAnr., CWP No. 6072 of 2012 dated 27.06.2018 held as under:"9. It is vehemently urged by learned counsel for the petitioner that the impugned order\n       suffers from vice of arbitrariness and, therefore, should be quashed and set aside. It was\n       further argued that the petitioner on receipt of the application had transferred it to the\n       concerned authorities and, therefore, there was no lapse on his part. He would also urge\n       that the petitioner did not know the intricacies of theRTI Actand, therefore, he\n       could not have been penalized.10. I find no merit in the contention put-forth by the petitioner. It is more than\n       settled that ignorance of law can be no excuse. Once the petitioner is designated as\n       PIO, then all the more he is deemed to have knowledge and even otherwise the least\n       that was required of him was to have acquainted himself thoroughly with the\n       provisions of theRTI Act. Therefore, the explanation as sought to be put-forth by\n       the petitioner at this stage clearly reflects the lackadaisical attitude of the petitioner.\n       The only reasonable explanation for the cause of delay can be accepted and not lame\n       excuses."Moreover, the Commission observed that it should be the endeavour of the CPIO to ensure that\nmaximum assistance should be provided to the RTI applicants to ensure the flow of information.\nIn this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by\nthe DoP&T on the Subject "Courteous behavior with the persons seeking information under theRTI Act, 2005" wherein it was stated as under:"The undersigned is directed to say that the responsibility of a public authority and its\n       public information officers (PIO) is not confined to furnish information but also to\n       provide necessary help to the information seeker, wherever necessary."Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and\nresponsibilities of the FAA, it was stated that:Page 4 of 7"3. Deciding appeals under theRTI Actis a quasi judicial function. It is, therefore,\n       necessary that the appellate authority should see that the justice is not only done but it\n       should also appear to have been done. In order to do so, the order passed by the\n       appellate authority should be a speaking order giving justification for the decision\n       arrived at.5..............................The Actprovides that the first appellate authority would be an officer\n       senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act,\n       would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any\n       case, the CPIO does not implement the order passed by the appellate authority and the\n       appellate authority feels that intervention of higher authority is required to get his order\n       implemented, he should bring the matter to the notice of the officer in the public authority\n       competent to take against the CPIO. Such competent officer shall take necessary action\n       so as to ensure implementation of theRTI Act. "The Commission also observed that the Hon'ble High Court of Delhi in the matter ofR.K. Jain\nv. CIC and Anr.in W.P.(C) 4152/2017 dated 10.10.2017 had held as under on the issue of power\nof the Commission to impose penalty :"4. The petitioner's case is that once having rejected the explanation submitted by the\n       CPIO (respondent no.2), the CIC was left with no discretion except to levy a penalty at\n       the rate of ₹250/- per day, subject to maximum of ₹25,000/-. The petitioner contends that\n       the CIC had grossly erred in restricting the penalty to only ₹5,000/- as the delay in\n       providing the information was quantified for 485 days.5. The question whether the CIC had the discretion to restrict the penalty or whether\n       penalty as provided underSection 20of the Act is mandatory, is no longer res integra.\n       The said question was considered by a Division Bench of this Court inAnand Bhushan v.\n       R.A. Haritash: ILR (2012) 4 Delhi 657 and the relevant extract ofthe said decisionis set\n       out below....6. In view of the above, this Court finds no reason to interfere with the discretion\n       exercised by the CIC. The petition is, accordingly, dismissed."The Commission thus observed that there is complete negligence and laxity in the public\nauthority in dealing with the RTI applications. It is abundantly clear that such matters are being\nignored and set aside without application of mind which reflects disrespect towards theRTI Act,\n2005itself. The Commission expressed its displeasure on the casual and callous approach\nadopted by the respondent in responding to the RTI application. It was felt that the conduct of\nRespondent was against the spirit of theRTI Act, 2005which was enacted to ensure greater\ntransparency and effective access to the information.Page 5 of 7DECISION:Keeping in view the facts of the case and the submissions made by both the parties and in light\nof the decisions cited above, the Commission finds that as per the provisions ofSection 20(1)of\nthe RTI Act, 2005, this is a fit case for levying a penalty of Rs. 2,000/- on\nMr. D. V. Kameshwara Rao,           Dy. Secretary and the then CPIO for not providing the\ninformation to the Appellant within the stipulated time frame in contravention to the provisions\nof theRTI Act, 2005.The FAA, Ministry of Health and Family Welfare, Dept. of Health and Family Welfare is\ndirected to recover the amount of Rs 2,000/- from the salary of Mr. D. V. Kameshwara Rao,\nDy. Secretary and the then CPIO on receipt of this order and remit the same by way of Demand\ndraft drawn in favour of "Pay and Accounts Officer, CAT" payable at New Delhi and send\nthe same to Dy. Registrar, (CR-II) email:[email protected], Room No. 106, First Floor,\nCentral Information Commission, CIC Bhavan, Baba Gangnath Marg, Munirka, New\nDelhi-110067 within 30 days from the date of receipt of this order.The Commission further instructs the Respondent to convene periodic conferences/seminars to\nsensitize, familiarize and educate the concerned officials about the relevant provisions of theRTI\nAct, 2005for effective discharge of its duties and responsibilities.\nFurthermore, it is appalling to note that the FAA had also not acted in accordance with the\nprovisions of theRTI Act, 2005, and therefore is advised to be alert and cautious in the\nimplementation of theRTI Act, 2005with due diligence and care.The Appeal stands disposed with the above directions.(Bimal Julka) (िबमल जु का)\n                                                   (Information Commissioner) (सूचना आयु )\n\nAuthenticated true copy\n(अ भ मा णत स या पत त)\n\n\n\n\n(K.L. Das) (के .एल.दास)\n(Dy. Registrar) (उप-पंजीयक)\n011-26182598/[email protected]दनांक / Date: 18.02.2020Page 6 of 7Copy to:1. The Secretary, Ministry of Health and Family Welfare, 'A' Wing, Nirman Bhawan,\n      New Delhi-110011 (with the instruction to ensure discipline with regard to the replies to\n      the RTI applications within the stipulated time period as per the provisions ofSection 7\n      (1)and19 (6)of the RTI Act, 2005)2. Mr. Devesh Deval, FAA and Director, Ministry of Health and Family Welfare, Dept. of\n      Health and Family Welfare, Room No. 243, "A" Wing, Nirman Bhawan,\n      New Delhi - 110011Page 7 of 7