Apka Adhikar

LIST OF DATES AND EVENTS

The petitioner, by way of filing the present Writ Petition under article 226 of the Constitution of India prays this Hon’ble Court for issuance of a Writ of Certiorari and that of Writ of Mandamus or any other appropriate Writ, Order or Direction against the respondents herein, thereby directing the respondents to give the information as sought by the petitioner vide his application under Right to Information Act, 2005 (RTI Act, 2005) dated 17.01.2006 and to direct Central Vigilance Commission (CVC) to execute order dated 28.06.2006 of respondent no 1.

The petitioner is employed with NABRD and was prosecuted and penalized after a protracted vigilance case against him on petty grounds like casual leave for one day and absence of petitioner from Head Quarters for few hours on a Sunday besides certain vague charges which were not substantiated. The complete information sought by the petitioner including the ‘file notings’ has not been furnished by the CPIO so far and the petitioner has persistently tried every thing possible within his means to obtain the file notings and other details but to no avail.

17.01.2006 : Application under the Right to Information Act, 2005 filed by the petitioner seeking all the information contained in the relevant files of CVC pertaining to vigilance case on petitioner giving complete chain of events between the period from 18.09.1995 till 12.01.2006. The application was communicated by e-mail (which is a legal mode of applying for information in terms of the Act), which was instantly delivered. The hard copy of the application along with the requisite fee was sent by Registered mail on the even date.

16.02.2006 : Statutory time limit of 30 days as provided under section 7 of the RTI Act, 2005 expired. Petitioner did not receive any information from respondent no 2.

21.02.2006 : The petitioner filed first appeal before respondent no 3 on the ground of deemed refusal. The first appeal was made by e-mail which was instantly delivered and the hard copy was sent by Registered mail.

23.02.2006 : Respondent no 2 replied to the application under RTI Act, 2005 filed by petitioner stating that information required by the petitioner pertains to vigilance case against the petitioner is not readily available because file no. A30/BNK/1 is not readily available and efforts are being done to locate/ recreate it.

17.03.2006 : Respondent no. 2 vide Letter no CVC/RTI/06/023–20306 replied to the petitioner stating that the copies of the correspondence exchanged with the CVC and NABARD from the CVO/NABARD have been obtained, however, some of the documents are marked ‘secret’; therefore a notice has been issued to CVO NABARD seeking no objection to the disclosure of the information in terms of section 11 of the RTI Act 2005.

12.04.2006 : Petitioner, aggrieved with the fact that despite the letter dated 17.03.2006, respondent no 2, as stated in the letter, failed to provide any information and thus filed second appeal before the respondent no 1.

24.04.2006 : Respondent no 2, vide letter no CVC/RTI/06/023/28844 provided certain information free of cost to the petitioner. Respondent no 2 also mentioned that CVC’s file no A30/BNK/1 could not be located. Efforts were made to recreate the file.

02.05.2006 : The petitioner dissatisfied with the information provided by respondent no 2, sent a letter to the respondent no 2 stating that the correspondences from the said recreated file has been provided selectively as there were wide gaps of more than a year between the dates of the successive letters provided much against the rules and guidelines issues by the CVC. The petitioner also stated that the CVC’s letter no A30/BNK/1 dated 14.07.2002, second stage advise of the CVC, was factually incorrect and with closed and possessed mind and was plainly abuse of power by the public authority.

25.05.2006 : Respondent no 2 vide letter no CVC/RTI/06/023-25791 wrote to CVO NABARD stating that the petitioner was not satisfied with the information and reiterated his request for the information available CVC’s file no A03/BNK/1 (sic). Since this file could not be traced, respondent no 2 requested that CVO NABARD that the information sought by applicant, if available with NABARD, may be provided to him under intimation to the respondent no 2. The CVO of NABARD despite having the information in his possession did not furnish any information (the petitioner in separate application to CPIO, NABARD sought inspection of documents and found 10 volumes of the relevant files).
Petitioner vide an email requested respondent no 1 to accord an early hearing in the matter.

08.06.2006 : Respondent no 1 issued notices to the respondent no 2 and respondent no 3 to file comments within 15 days.
28.06.2006 : Respondent no 1 expressing anguish over the attitude of respondent no 2 and respondent no 3 directed them to provide to the petitioner the information as sought by him within 15 working days. Respondent no 1 also issued notice on the respondent no 2 on the ground of imposition of penalty as the information was not provided to the petitioner within statutory time limit of 30 days. Respondent no 1 further directed respondent no 2 to appear in person before it on 12.07.2006.

11.07.2006 : Petitioner filed an application by e-mail, which was instantly delivered before respondent no 1 stating that the information has not been furnished till date despite order of respondent no. 1. The petitioner also stated that the deadline set by the Commission for furnishing information is 15.07.2006. He also requested that the hearing may be postponed to any date after expiry of the deadline for the compliance if the respondent no 1’s order.

15.07.2006 : Respondent no 2 did not appear before respondent no 1, however, one Mr. A. K Gupta, Under Secretary appeared on behalf of CVC. Respondent no 1 dropped the penalty on ground that the original file was missing and the delay was in creating new file with relevant records. It was also stated in the order that the reply to the appeal was furnished before the respondent no 1 on 27.06.2006 before the passing of order dated 28.06.2006. Respondent no 1 closed the case of petitioner.

22.07.2006 : Petitioner filed a complaint before respondent no 1 again on the ground that, till date, has had not received any information from respondent no 2 despite strict direction from respondent no 1 to do so.

03.08.2006 : Petitioner filed a review against the order dated 15.07.2006 of respondent no 1 dropping penalty.

08.09.2006 : After an elapse of one month, on receiving no response form respondent no 1, petitioner again e-mailed and faxed respondent no 1 stating that CVC has destructed files of petitioner and that despite elapse of about 250 days no documents have been received by him.
On the same day respondent no 1’s registrar sent a letter to the petitioner stating that the points raised by him have already been considered and that his complaint and thus there was no justification of the petitioner’s review petition.

10.10.2006 : Petitioner filed an RTI application before PIO of respondent no 1 seeking all the file notings from the date of filing second appeal from 12.04.2006 to 30.09.2006, copies of all the correspondence between respondent no 2, respondent no 3 and other officials of CVC and file notings on receipt of complaint against non compliance of respondent no 1’s order dated 28.06.2006.

18.10.2006 : Respondent no 1 replied to the RTI application of petitioner and gave him all the documents on records of respondent no 1. It was in these documents that the petitioner saw that respondent no 2 had filed comments before the respondent no 1. To the petitioner’s amazement, respondent no 1 not only did not even once consider the complaint of the petitioner that the order of respondent no 1 has not been complied with but also readily accepted the comments without giving any opportunity to the petitioner to put his rejoinder on records.

HENCE THIS WRIT PETITION.
IN THE HIGH COURT OF DELHI AT NEW DELHI
EXTRAORDINARY CIVIL WRIT JURISDICTION
CIVIL WRIT PETITION NO. OF 2007

IN THE MATTER OF RIGHT TO INFORMATION ACT, 2005 AND ARTICLE 226 OF THE CONSTITUTION OF INDIA

AND

IN THE MATTER UNDER SECTIONS 4, 6, 7, 8, 11, 18, 19 AND 20 OF RIGHT TO INFORMATION ACT, 2005

AND

IN THE MATTER OF QUASHING OF THE IMPUGNED ORDER DATED 15.07.2006 OF THE RESPONDENT NO 1

AND

IN THE MATTER OF NON MAINTAINENCE OF RECORDS BY RESPONDENT NO 2 AND RESPONDENT NO 1 CONDONING THE ACT OF RESPONDENT NO 2

AND

IN THE MATTER OF NON INITIATION OF INQUIRY AGAINST RESPONDENT NO 2 BY RESPONDENT NO 1 FOR DELIBERATELY LOOSING RECORDS

AND

IN THE MATTER OF COMPLIANCE OF ORDER DATED 28.06.2006 OF RESPONDENT NO 1 DIRECTING RESPONDENT NO 2 TO PROVIDE THE INFORMATION SOUGHT BY THE PETITIONER VIDE HIS APPLICATION UNDER THE RIGHT TO INFORMATION ACT, 2005 17.01.2006.

AND

IN THE MATTER OF RECONSIDERATION OF COMPLAINT OF THE PETITIONER DATED 22.07.2007 AGAINST NON COMPLIANCE OF ORDER DATED 28.06.2006 OF RESPONDENT NO 1 BY RESPONDENT NO 2.

AND

IN THE MATTER OF DIRECTING RESPONDENT NO 1 TO IMPOSE PENALTY ON RESPONDENT NO 2 FOR REPEATEDLY VIOLATING THE PROVISIONS OF RIGHT TO INFORMATION ACT 2005 THUS CAUSING HARASSMENT TO THE PETITIONER AND DIRECTING RESPONDENT NO 2 TO PROVIDE THE INFORMATION SOUGHT BY THE PETITIONER.

AND

IN THE MATTER OF

Vimal Kishor
Flat No 83,
NABARD Officers’ Flats,
Near Hotel Republic,
Exhibition Road,
Patna 800 001. … Petitioner

Versus

1. Central Information Commission
4th & 5th Floor, Block No. IV,
Old JNU Campus,
New Delhi 110067.

2. Central Public Information Officer
Central Vigilance Commission,
Satarkta Bhavan,
Block – A,
GPO Complex, INA,
New Delhi – 110 023.

3. First Appellate Authority
Central Vigilance Commission,
Satarkta Bhavan,
Block – A,
GPO Complex, INA,
New Delhi – 110 023. … Respondents

To,

The Hon’ble Chief Justice and
The other Companion Judges of
The Hon’ble High Court of Delhi.

HUMBLE PETITION OF THE PETITIONER ABOVE NAMED.

MOST RESPECTFULLY SHOWETH.

1. This is a petition preferred by the petitioner herein under the provisions of Article 226 of the Constitution of India for issuance of and/or seeking appropriate order(s) in the nature of Certiorari and Mandamus or any other appropriate writ(s) for issuance of order(s), direction(s) to the respondent(s) herein directing them to quash the impugned order dated 15.17.2006, consider the complaint dated 22.07.2006 of the petitioner against non compliance of order dated 28.06.2006 of respondent no 1, provide the information(s) sought by the petitioner herein vide his application dated 17.01.2006 under Right To Information Act, 2005 (RTI Act) and impose penalty as provided under section 20 of the RTI Act, 2005.

2. Petitioner has been an employee of NABARD since 18.05.1983. That in the year 1995 upon receipt of an anonymous complaint on petty issues like casual leave for one day and absence of petitioner from Head Quarter for few hours on Sunday was made subject of vigilance inquiry. Charge-sheet was issued to the petitioner 22 months after receiving reply to the Show Cause Notice whereas charge-sheet should have been issued after 15 days. Inquiry officer was appointed on the petitioner after 23 months where as he should have been appointed within a period of 10 days, final order was also issued 22 months after reply to inquiry findings whereas it should have been submitted after 7 days. Central Bureau of Investigation was not conducted as opposed to the rules in case of third party involvement as was mandatory in terms of the rules laid down in the CVC, Manual, 1991 and also requested by the petitioner. Fraudulent documents were put on records despite written protests. A case against this gross violation of principles of natural justice is pending before the High Court of Bombay at Mumbai. After enactment of the Right to Information Act, 2005 (RTI Act, 2005), the petitioner tried to procure documents using this act. To his dismay here also he was faced with same high handedness and violation of his rights under the RTI Act, 2005.

3. Respondent no 1 is Central Information Commission (CIC), a statutory body constituted under the provision of section 12 of the RTI Act. Respondent no 1 is responsible for hearing appeals, arising from the order passed by the first appellate authority of the Public Information Officer who have not been given response to a request for information or access to information within the time limit specified under the RTI Act, 2005 and is also under statutory obligation to take all possible steps requiring discovery of documents and to impose penalty on the Public Information Officer (PIO) where he has not furnished information within the time specified of 30 days. It is vested with the same power as that of the civil court while trying suit under the Code of Civil Procedure 1908. Respondent no 2 and respondent 3 are public authority for the purposes of the RTI Act. Respondent no 2 is the PIO responsible to provide information within 30 days of receipt of application. Respondent no 3 is the Appellate Authority responsible to receive and hear appeals from people who are dissatisfied from the reply of the PIO. Respondent no 2 and respondent no 3 are public authority for the purposes of the RTI Act, 2005.

4. The fact leading to the present case are stated as under:-

(a) On 17.01.2006, the petitioner filed an application under the RTI Act, 2005 seeking all the information contained in the relevant files of Central Vigilance Commission (CVC) pertaining to vigilance case on petitioner giving complete chain of events between the period from 18.09.1995 till 12.01.2006 including copies of complaints, correspondence with Chief Vigilance Officer (CVO) of National Bank for Agriculture and Rural Development (NABARD), opinions, submissions and investigation reports submitted by CVO of NABARD and CVC action to the same, correspondence received or solicited from individuals or other identities, copies of the reports of the investigation carried by the CVC itself, file notings, opinions, advices, e-mails, memos, orders, show cause notice dated 18.09.1995. A copy of this application dated 17.01.2006 is annexed herewith as ANNEXURE ‘I’.

(b) The petitioner on 21.02.2006 filed first appeal, through e-mail which was instantly delivered to the respondent no 3 and also through Registered mail of even date, before respondent no 3 on the ground of deemed refusal after non-receipt of any information within statutory time period of 30 days as provided under section 7 of the RTI Act, 2005. A copy of the first appeal is annexed herewith as ANNEXURE “II”.

(c) Respondent no 2 vide its letter dated 23.02.2006 replied to the application dated 17.01.2006 filed by petitioner stating that the Commission’s (CVC) file relating to vigilance case against the petitioner is not available because file no. A30/BNK/1 is not readily available and efforts are being done to locate/ recreate the one. A copy of the letter dated 23.02.2006 is annexed herewith as ANNEXURE “III”.

(d) Respondent no. 2 vide Letter no CVC/RTI/06/023–20306 dated 17.03.2006 replied to the petitioner stating that the copies of the correspondence exchanged with the CVC and NABARD from the CVO/NABARD have been obtained, however, some of the documents were marked ‘secret’; therefore a notice had been issued to CVO NABARD seeking no objection to the disclosure of the information in terms of section 11 of the RTI Act 2005. A copy of the letter dated 17.03.2006 is annexed herewith as ANNEXURE “IV”.

(e) Petitioner, aggrieved with the fact that despite the letter dated 17.03.2006, respondent no 2, as stated in the letter, failed to provide any information, was constrained to file second appeal dated 12.04.2006 before the respondent no 1. A copy of the second appeal dated 12.04.2006 is annexed herewith as ANNEXURE “V”.

(f) After the filing of second appeal by the petitioner, respondent no 2, vide letter no CVC/RTI/06/023/28844 dated 24.04.2006 provided 9 letters exchanged between CVC and NABARD, which were spread over a period of 5 years and were randomly selected to the petitioner. These letters were not provided to the petitioner in any order. This information was, however, provided free of cost to the petitioner, but the information neither satisfied the petitioner nor achieved the object for which petitioner had sought information as the ‘file notings’ were denied. Petitioner vide his letter dated 02.05.2006 to respondent no 2 expressed his displeasure over the so-called information provided by respondent no 2. A copy of the letter dated 24.04.2006 and letter dated 02.05.2006 are annexed herewith as ANNEXURE “VI” (COLLY).

(g) Vide e-mail dated 25.05.2006 petitioner requested respondent no 1 to hear the matter of petitioner on priority basis. Meanwhile on the same day respondent no 2 vide letter no CVC/RTI/06/023-25791 wrote to CVO NABARD that the petitioner was not satisfied with the information and reiterated his request for the information available CVC’s file no A03/BNK/1 (sic). Since this file could not be traced, respondent no 2 requested the CVO NABARD that the information sought by applicant, if available with NABARD, may be provided to him. A copy of the e-mail and the letter from respondent no 2 to CVO NABARD both dated 25.05.2006 are annexed herewith as ANNEXURE “VII” (COLLY).

(h) Respondent no 1, taking into cognizance e-mail of petitioner dated 25.05.2006 to treat his matter urgent issued notice dated 08.06.2006 to respondent no 2 and respondent no 3 to file comments within 15 days. A copy of the notice dated 25.05.2006 is annexed herewith as ANNEXURE “VIII”.

(i) Respondent no 1 misread the RTI application of the petitioner. The petitioner had asked for the information other than the show cause notice, chargesheet, final order of competent authority. The petitioner had only written relevant dates for convenience and sought information other than those. Respondent no 2 and respondent no 3 did not file comments before respondent no 1 and also provide same to the petitioner within 15 days. Respondent no 1 passed an exparte order dated 28.06.2006 expressing anguish over the attitude of respondent no 2 and respondent no 3. In its order respondent no 1 stated as follows:-

“The manner in which the CPIO and the appellate authority of the CVC have dealt with the request for information under the RTI Act demonstrate the lackadaisical attitude of the CVC in implementing the provisions of the Act. The CPIO has adopted a circuitous approach to deal with the matter. In the first instance, he informed the appellant that the concerned file was not traceable and later he informed that the concurrence of the third party u/s 11 of RTI Act was to be obtained. What happened thereafter has not been mentioned or reported to the appellant.

The appellate authority too chose to ignore the 1st appeal, which even after the lapse of over four months remains to be disposed of.

It is not surprising that even the Commission’s letter seeking comments on the appeal filed by the appellant has also been ignored. All this demonstrates a disappointing response of the CVC in fulfilling its mandatory obligations to implement the Act to ensure transparency in its functioning.”

Respondent no 1, while issuing Show Cause Notice under section 20 of the RTI Act for imposition of penalty as the information was not provided to the petitioner within statutory time limit of 30 days, directed respondent no 2 to provide to the petitioner the information sought by him within 15 working days. Respondent no 1 further directed respondent no 2 to appear in person before it on 12.07.2006. A copy of this order is annexed herewith as ANNEXURE “IX”.

(j) Petitioner, despite such a strict order of respondent no 1 to not only provide information to the petitioner within 15 days but also issuance of show cause notice to impose penalty did not receive the sought information. Aggrieved, the petitioner sent e-mail dated 11.07.2006 to respondent no 1 stating that the information has not been furnished till date despite order of respondent no. 1. The petitioner also stated that the deadline for furnishing information expires on 15.07.2006. In such case he requested that the hearing of 12.07.2006 to be postponed to any date after expiry of the deadline for the compliance of respondent no 1’s order. Petitioner also attached a submission along with this e-mail. A copy of the e-mail dated 11.07.2006 alongwith submission are annexed herewith as ANNEXURE “X”(COLLY).

(k) On the date of hearing on 12.07.2006 respondent no 2 did not appear before respondent no 1, however, one Mr. A. K Gupta, Under Secretary appeared on behalf of CVC. Respondent no 1 vide its order dated 15.07.2007 did not impose the penalty on ground that the original file was missing and the delay was in creating new file with relevant records. It is pertinent to mention here that respondent no 1 did not consider the written submission or even the e-mail dated 11.07.2006 of petitioner seeking postponement of hearing from 12.07.2006 as he had not received any information from respondent no 2. Respondent no 1 also stated in the order that the reply to the appeal was furnished before the respondent no 1 on 27.06.2006 before the passing of order dated 28.06.2006. It is again pertinent to mention here that no comments that were submitted by respondent no 2 before respondent no 1 were provided to the petitioner nor the petitioner was given any opportunity to file rejoinder to the same.

(l) Petitioner, on non-receipt of any information from respondent no 2, again approached respondent no 1 vide an application for information dated 22.07.2006. Petitioner was shocked to see the order dated 15.07.2006, wherein the penalty was not imposed by respondent no 1 without considering the written submission of the petitioner dated 11.07.2006. He again approached respondent no 1 by way of review petition dated 03.08.2006 to reconsider its order. A copy of the complaint, the review petition and order dated 15.07.2006are enclosed herewith as ANNEXURE “XI”(COLLY).

(m) After an elapse of almost one and a half months, on receiving no response form respondent no 1, petitioner again e-mailed and faxed respondent no 1 on 08.09.2006 stating that in his case there has been destruction of files and that despite elapse of about 250 days no documents have been received by him. On the same day respondent no 1’s registrar sent a letter to the petitioner stating that the points raised by the petitioner were already considered before passing of the decision and thus there was no justification for issuing revised decision. A copy of the fax and e-mail of petitioner and copy of order of respondent no 1 dated 08.09.2006 are annexed herewith as ANNEXURE “XII” (COLLY).

(n) Petitioner, as a final attempt to seek justice and redressal to his grievance filed an RTI application dated 10.10.2006 before respondent no 1 seeking all the file notings from the date of filing second appeal from 12.04.2006 to 30.09.2006, copies of all the correspondence between respondent no 2, respondent no 3 and other officials of CVC and file notings on receipt of complaint against non compliance of respondent no 1’s order dated 28.06.2006. A copy of the RTI application dated 10.10.2006 is annexed herewith as ANNEXURE “XIII”.

(o) Respondent no 1 vide its reply dated 18.10.2006 to the RTI application of petitioner and gave him all the documents on record of respondent no 1. It was in these documents that the petitioner saw the comments filed by respondent no 2. To the petitioner’s amazement, respondent no 1 did not even once consider the complaint of the petitioner that the order of respondent no 1 has not been complied with.

(p) It is submitted that in view of the facts stated herein above, it is amply clear that the petitioner herein has not left any stone unturned in pursuing his application under the RTI Act, 2005 dated 17.01.2006 before the office of the respondent no. 2 and respondent no 1 in every possible manner but both the respondent no. 2 and 1 have failed and / or neglected to respond in a positive manner to the representations, requests and verbal reminders of the petitioner herein till date.

5. In view of the aforesaid facts and circumstances, the petitioner has no option except to approach this Hon’ble Court at this stage of the matter.

6. It is submitted that in view of the facts and submissions stated hereinabove it is abundantly clear that the petitioner has done everything that he could under the RTI Act, 2005 and, therefore has a legal and valid right to claim the information from the respondent no. 1 and 2 and respondent no 1 and 2 being public servants are duty bound to consider and grant the information to the petitioner herein at the earliest possible in order to avoid any further loss and damage to the petitioner’s right to information.

7. It is submitted that despite complaint and review filed by the petitioner, respondent no 1 did not consider any of these. Infact till date respondent no 1 has failed to respond to the complaint dated 22.07.2006 filed b y the petitioner.

8. It is submitted that respondent no 1 closed the case of petitioner without even giving petitioner an opportunity to respond to the comments filed by respondent no 2. It is respectfully submitted that this is a case of gross violation of the principles of natural justice where not only an opportunity to file rejoinder was denied but the case was subsequently closed without according any hearing to the petitioner despite repeated reminders by way of review and complaint that he has not been provided the sought information.

9. It is submitted that it is only upon filing an RTI application before respondent no 1 to give all the documents on record did petitioner come to know that respondent no 2 had filed comments before respondent no 1 and also that his case was closed prematurely without any consideration to the complaint of the petitioner.

10. It is submitted that respondent no 2 had provided contradictory information to the petitioner first on 23.02.2006 and then on 17.03.2006 which is misleading and false. In the reply dated 23.02.2006, respondent no 2 had stated that the file no A30/BNK/1 that pertains to the vigilance inquiry of the petitioner was not readily available, where as, later in its reply dated 17.03.2006 to the petitioner respondent no 2 sent certain copies of correspondence exchanged between the CVC and NABARD from the CVO/NABARD. However, some of the documents were marked ‘secret’; therefore a notice had been issued to CVO NABARD seeking no objection to the disclosure of the information in terms of section 11 of the RTI Act 2005.

11. It is submitted that respondent no 3 failed to respond to the first appeal dated 21.02.2006 of the petitioner. Respondent no 1 also vide its order dated 28.06.2006 remarked that:-

“The appellate authority too chose to ignore the 1st appeal, which even after the lapse of over four months remains to be disposed of”.

12. Petitioner would like to draw the kind attention of this Hon’ble Court to the provisions of section 20 (1) of the RTI Act, 2005 which cast a statutory obligation on respondent no 1 to impose penalty on such officials who fail to provide information within prescribed time without any reasonable cause. Sec 20 (1) reads as follows:

Penalties: “20-(1) 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.”

13. It is submitted that section 20 (1) of the RTI Act, 2005 clearly states that penalty “shall” be imposed. Respondent no 1 does not have any discretion while imposing penalty. Respondent no 1 has to see, only, whether there was a “reasonable cause”, which prevented respondent no 2 to provide information within time.

14. It is submitted that under the facts and circumstances as stated hereinabove, the petitioner has been left with no option and / or alternative remedy except to approach this Hon’ble Court under the provisions of Article 226 of the Constitution of India to file the present writ petition and seek appropriate relief(s) from this Hon’ble Court.

15. It is submitted that respondent no 1 has been publicly making statements that they are not in favor imposing penalties. Below mentioned are some of the extracts of statements made by the Chief Information Commissioner in the Indian Express dated 12.10.2006 on the issue of penalty:

“Chief Information Commissioner (CIC) Wajahat Habibullah has said levying penalties on public servants found deliberately withholding information is “not the only way” to make them comply with the Right to Information Act. He is of the view that there are other ways of ensuring that they part with information that is due to citizens under the law enacted a year ago.
Brushing aside allegations that he was “gentle” and therefore there were hardly any penalties levied on officers who had failed to satisfy questioners, Habibullah, in an interaction with The Indian Express staff today, said he had a different approach to changing the information culture in the country.
“I believe in ahimsa (non-violence) in not merely turning the other cheek, but converting someone peacefully to the cause, so all types of citizens come to accept the RTI as being beneficial to them,” he said and added that if penalties, especially monetary, were imposed aggressively, too much resistance would develop. “Let’s not railroad and end in a crash. The principle objective this year has been to win over all sections of society.”
He said penalties would prompt the bureaucracy to get more defensive and therefore develop many more defence mechanisms to shield itself against the new law. The Chief Information Commissioner said “confidence was slowly building up” in how the Act benefited all. While admitting that a majority of the users of the Act were in cities and mostly government servants, who knew the law and its powers, he argued that it was the duty of ordinary citizens to exert pressure on the powers that be and maintain pressure on the system to regularly be answerable to them.

A copy of the statement dated 12.10.2006 made by the Chief Information Commissioner in the Indian Express is annexed herewith as ANNEXURE “XIV”.

16. Such statements made in national media and persistent refusal of the respondent no 1 to impose penalties have emboldened the officials across the country. The officials are not only ignoring requests for information made by the citizens under the Act, they are also ignoring the notices and orders of the respondent no 1, thus rendering the RTI Act, 2005 ineffective. Respondent no 2 and 3 could repeatedly violate the provisions of RTI Act with impunity only because they were confident that no penalty would fall on them under RTI Act because of the publicly declared stand of respondent no 1 on the issue of penalties.

17. That Delhi Right to Information Act 2001 also has a similar penalty provision. Mohammad Shamim, Justice, who is the Lokayukta of Delhi, observed the following in the case of Shri Ravinder Balwani Vs Shailja Chandra and others, while deciding Complaint No. C-9/ Lok /2005

“This is well established principle of law that where the provisions of a statute are plain and clear and the legislator in their wisdom have given vent to their intent in unequivocal terms without any ambiguity, then the judges are under an obligation to interpret the same as it is without adding anything thereto and without subtracting anything therefrom. I am supported in my above view by the opinion expressed by Justice Krishna Iyer in a judgement of the Supreme Court. He opined “when the language is plainly limiting and means what it says teteology, dialectics and other tour deforce cannot be invoked to give a desired meaning beyond what the definitions ever contemplated.” A law has to be interpreted as it is, not as it ought to be or as one wishes it to be. There is another side of the picture.

Information from the government has been likened to an oxygen for a democratic society, time and again. Thus the intent behind the passing of Information Act was to provide information to the citizen on being asked as it is considered an essential component of a democratic setup. Hence the legislatures in their wisdom made it obligatory on the part of the government to furnish the information once it is sought. In case of the failure to furnish the information a penalty was to be imposed under the Delhi Right to Information Act. Thus I feel a duty was cast on the shoulders of the appellate authority to recommend the penalty, in case the appellate authority came to the conclusion that the information was not furnished or information furnished was wrong or deficient.”

“ In case no penalty is recommended, in that eventuality the defaulting officers would get emboldened and would not furnish the requisite information when asked for. Thus the intent of the legislature is unequivocal and clear. It goes to show that the recommendation for imposition of penalty is compulsory. It was in the above circumstances that the legislature used the words “shall take action against the defaulting officers concerned.””

A copy of this order is annexed herewith as ANNEXURE “XV”

18. It is submitted that it is the refusal by respondent no 1 to impose penalties on guilty officials, which has emboldened respondent no 2 and 3 to such an extent that they not only completely ignore the applications for information but also notices of respondent no 1.

19. It is submitted that the office of the respondent no 1 is located in Delhi, and as such this Hon’ble Court has the jurisdiction to entertain and grant relief(s) as sought for under this writ petition.

20. It is submitted that Annexure I to XIII as annexed to this writ petition are true copies of the originals.

21. It is submitted that the petitioner herein reserve their right to further amend, supplement such other further facts and submissions as may be deemed fit and proper and necessary in the interests of justice during the course of the pendency of this writ petition before this Hon’ble Court.

22. It is submitted that there is no equally effective alternative remedy available to the petitioner for relief as claimed and sought for in this writ petition.

23. It is submitted that the petitioner has not filed any other similar petition in the Hon’ble Supreme Court or before this Hon’ble Court or any other Courts in India pertaining to the subject matter in the present petition.

24. It is submitted that being seriously affected and aggrieved by the decision of the respondent no.1 with regard to the petitioner’s application under RTI Act, 2005 dated 17.01.2006 as stated hereinabove, the petitioner prefers this writ petition on following amongst other

G R O U N D S

A. BECAUSE respondent no 1 failed to appreciate that the petitioner has not been provided, till date, information by respondent no 2.

B. BECAUSE respondent no 1 failed to consider the written submission dated 11.07.2006 filed by the petitioner before deciding upon the imposition of penalty under section 20 of the RTI Act, 2005. In the written submission the petitioner had clearly stated that: -

“ That it is apparent from the demeanour of the CPIO that he deliberately and deceptively acquired a few selective documents from a third party by first feigning that the relevant file was not ‘readily available’ and then that relevant file ‘could not be located’ with the intention to hoodwink the appellant and deny factual information as sought by the appellant.”

C. BECAUSE respondent no 1 did not even once consider the complaint dated 22.07.2006 of the petitioner and closed the case of petitioner in complete violation of section 18 of the RTI Act, 2005. Respondent no 1 is vested with the power to initiate inquiry under section 18 of the RTI Act, 2005 on receipt of a complaint from a person who believes that he has been given incomplete, false and misleading information under the RTI Act, 2005.

D. BECAUSE respondent no. 1 ought not to have appreciated the averments made by respondent no. 2 that the file no. A30/BNK/1 is not traceable. Respondent no. 1 should have initiated an inquiry as provided under section 18 of the RTI Act, 2005, to confirm the veracity of the averments made by the respondent no. 2, to ascertain whether the file went missing after petitioner’s RTI application was filed.

E. BECAUSE respondent no.1 failed to apply various powers vested in it by virtue of RTI Act, which empowers respondent no 1 to receive evidence on affidavit and examine witness and documents and is obliged to take all steps possible requiring discovery of documents.

F. BECAUSE respondent no 1 in complete violation of principles of natural justice failed to provide a copy of comments that were filed by respondent no 2 and also did not accord any hearing and / or an opportunity to file rejoinder to the petitioner.

G. BECAUSE respondent no 1 despite considering and observing in its order dated 28.06.2006 that respondent no 2 had provided contradictory information to the petitioner first on 23.02.2006 and then on 17.03.2006, dropped imposition of penalty vide its order dated 15.07.2007. In the reply dated 23.02.2006, respondent no 2 had stated that the file no A30/BNK/1 that pertains to the vigilance inquiry of the petitioner was not readily available, where as, later in its reply dated 17.03.2006 to the petitioner respondent no 2 sent certain copies of only selective correspondence exchanged between the CVC and NABARD from the CVO/NABARD. However, some of the documents were marked ‘secret’; therefore a notice had been issued to CVO NABARD seeking no objection to the disclosure of the information in terms of section 11 of the RTI Act 2005.

I. It is submitted that respondent no 3 failed to respond to the first appeal dated 21.02.2006 of the petitioner. Respondent no 1 also vide its order dated 28.06.2006 remarked that: -
“The appellate authority too chose to ignore the 1st appeal, which even after the lapse of over four months remains to be disposed of”.

J. BECAUSE respondent no 1 has a statutory duty under section 20 of the RTI Act, 2005 to impose penalty on respondent no 2 and respondent no 1 failed to impose any monetary penalty on respondent no 2 for having failed to give the required information to the petitioner within stipulated time of 30 days.

K. BECAUSE respondent no 1 ignored to see that respondent no 2 failed to respond to the RTI application dated 17.01.2006 of the petitioner and respondent no 1 condoned the conduct of respondent no 2, against which RTI Act, 2005 strictly lays down provision of penalty.

L. BECAUSE respondent no 1 failed to appreciate the fact that respondent no 2 has a statutory obligation under section 4 of the RTI Act, 2005 to maintain all its records. The section is being reproduced herein for the sake of convenience of the Hon’ble Court.

“4 (1) Every public authority shall-

(a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated;

Respondent no 2 did not keep the records in proper manner so much so that one entire file apparently in several volumes went missing and had to be reconstructed. The reconstruction was also not entirely proper and petitioner was given selective information. Respondent no 1 treated this lapse on part of respondent no 2 in a very frivolous manner. Instead of imposing penalty or even reprimanding respondent no 2 for such violation of statutory obligation, respondent no 1 accepted the plea that the file is missing and simply let go respondent no 2 .

M. BECAUSE respondent no 1 should have initiated an enquiry into the matter to know whether the file of petitioner was deliberately destroyed which was subject of the information requested by him and should have imposed penalty on finding out the truth, but respondent no 1 did not initiate any inquiry and thus never arrived at any conclusion whether the file was deliberately lost and as such respondent no 2 was absolved of all the responsibility of not only maintaining record but also non imposition of penalty or even calling for any reprimand from respondent no 1.

N. BECAUSE despite being is vested with the powers of civil court while trying a suit under the Code of Civil Procedure 1908, call for production of documents or things or take evidence on oath, requisition any public record or copies thereof from any office, respondent no 1 failed to exercise any such power and as such it was the petitioner who suffered most.

PRAYER

It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to take this Writ Petition into consideration and issue appropriate writ in the nature of certiorari and / or mandamus and / or such other writ(s) as may be deemed fit and proper to

a. call for records of Appeal No. 70/IC(A)/2006 filed by petitioner, and;
b. direct respondent no 1 to conduct an enquiry under section 18 of the RTI Act, 2005 to seek production of records and to ensure whether the records have actually been lost or destroyed and if yes, when and in which circumstances were they lost, and
c. direct respondent no 1 to direct CVC to conduct enquiry, fix responsibility and take strict action against the officials responsible for loss of files at CVC, and
d. direct respondent no 1 to implement its order dated 28.06.2006 and impose penalty under section 20 of RTI Act, 2005 on respondent no 2 for its failure to provide information within statutory time limit and till date, and
e. direct respondent no 1 to direct respondent no 2 to recreate file A 30/BNK/1 and provide it to the petitioner, and

f. pass such other further order(s), direction(s) as may be deemed fit and proper under the facts and circumstances of the present case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER SHALL EVERY AS IN DUTY BOUND EVER PRAY.

Petitioner

Through

Advocate
New Delhi
Date: .04.2007

IN THE HIGH COURT OF DELHI AT NEW DELHI
EXTRAORDINARY CIVIL WRIT JURISDICTION
CIVIL WRIT PETITION NO. OF 2007

IN THE MATTER OF

Vimal Kishor
Versus

1. Central Information Commission and Ors. …Respondents

A F F I D A V I T

I, Vimal Kishor, aged …. years, s/o ……………., R/o ………………….. presently at New Delhi, do hereby solemnly affirm and state as under:-

That I am Petitioner in the present case and as such I am acquainted with the facts and circumstances of the present case and competent to swear this affidavit.

That I have read the contents of the accompanying Writ Petition and the same has been drafted under my instructions and I say that the contents thereof are true to my knowledge.

The annexure I to XV of the Writ petition are true copies of their respective originals.

DEPONENT
VERIFICATION:

Verified at New Delhi on this the th day of April, 2007 that the contents of the above affidavit are true to my knowledge and also on the basis of information received and believed to be correct. No part of it is false and nothing material has been concealed there from.

DEPONENT