Writ - JK Gupta
SYNOPSIS
The petitioner by way of filing the present petition under article 227 of the Constitution of India prays before this Hon’ble Court for an appropriate order or direction against the respondents herein, imposing penalty and compensation under section 20(1) and 19(8) (b) of RTI respectively. Notwithstanding the ultimate receipt of information.
The petitioner is an employee of the National Projects Construction Corporation Ltd. (NPCC). The salary of the petitioner including other employees of the Matigara unit of NPCC was not paid for a period of 18 months whereas the salary of the CMD, Zonal Manager and other high ups of the corporate Office and Eastern Zonal Office was paid intermittently at every month whereas there is separate funds for the payment of salary/wages of the employees of the Corporate Office, Zonal Office and Field Units. He could not understand why his salary was not paid especially when the all the high ups including the Highest Authority i.e. CMD was being paid regularly at every month. He, therefore, made an RTI application 16th March 2006 to the respondent no 2, a true copy of which is annexed hereto and marked.
The petitioner is left with no other option but to approach this Hon’ble Court since respondent no. 1 failed to issue any further orders to agree with the CMD for not paying the compensation as indicated in its decision placed at p. 66/c.
LIST OF DATES AND EVENTS
16.03.2006 : Right to information (RTI) application filed before the respondent no 2 seeking information why his salary was not paid especially when all the high ups including the Highest Authority i.e., CMD was being paid regularly, every month.
19.05.2006 : Respondent no 2 did not reply within the maximum statutory period of 30 days as laid down by section 7(1) of the RTI. He therefore filed the first appeal before respondent no. 3 by appeal dated 19.05.2006.
08.07.2006 : The petitioner did not get any reply to this appeal, he therefore filed an appeal before respondent no. 1 dated 08.07.2006.
04.08.2006 : While the matter was pending before the CIC, respondent no. 3 made an order directing respondent no. 5 to provide the information within 3 days. On the same day, respondent no. 5 (who was the PIO then) sent the petitioner false information
18.08.2006 : The petitioner wrote a letter to respondent no 1, complaining of the wrong and late information provided. He also requested that his appeal before the CIC be heard.
21.08.2006 : Respondent no. 1 issued notices of hearing to R4 and R5 and the petitioner.
01.09.2006 : Respondent nos. 4 and 5 submitted replies to the complaint. Respondent no. 4 admits in his reply that default, however, he does not deal with the complaint of the petitioner that wrong information was supplied. Respondent no. 5 is neither concerned with the aspect of delay, nor with the aspect of providing wrong information.
18.09.2006 : Petitioner filed his rejoinder, seeking penalty, compensation and correct information.
01.11.2006 : A hearing took place when all the parties were present.
16.11.2006 : An order was made by CIC.
01.12.2006 : Frustrated by the conduct of R1, the petitioner filed a fresh RTI application to R4 on 01.12.2006.
08.12.2006 : The petitioner served on R1 a letter dated 8th December.
11.12.2006 : Nisha Singh, Joint Secretary and Assistant Registrar suggested in an office note to the CIC that he “may like to decide to accept the reply” of respondent no. 3.
12.12.2006 : The petitioner received incomplete information from respondent no. 5.
22.12.2006 : P.K. Gera, Additional Secretay and Registrar submitted an “off the record note”, stating therein inter alia, the reasons for not giving the compensation by the CMD of NPCC are also not very satisfactory as CMD should have disposed of the case and prevent the appellant from approaching the Commission.
03.01.2006 : R1 agreed to P.K. Gera’s order in writing.
11.01.2007 : The petitioner wrote another letter to respondent no. 1 complaining that the information had still not been given , and requesting that penalty and compensation be imposed. He also requested that the date of the hearing be fixed.
07.02.2007 : On account of no response to the previous letter, the petitioner sent another reminder on 07.02.2007, there was no response for this letter as well.
15.02.2007 : The petitioner received correct information.
March, 2007 : A colleague of the petitioner saw the entire file of the CIC relating to this case and was surprised to see that the proceedings for compensation had been dropped by R1 without notice to the petitioner and without a hearing. The proceedings were dropped based on the letter dated 06.12.2006 of R3.
07.05.2007 : The petitioner wrote a letter to the Commission requesting compensation
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 227 OF THE CONSTITUTION OF INDIA
AND
IN THE MATTER UNDER SECTIONS 20(1) AND 19 (8) (b) OF RIGHT TO INFORMATION ACT, 2005
AND
IN THE MATTER OF NON EXERCISE OF JURISDICTION BY RESPONDENT NO 1 BY NOT IMPOSING PENALTY UNDER SECTION 20 (1) AND 20 (2) OF THE RIGHT TO INFORMATION ACT , 2005
AND
IN THE MATTER OF:
Shri Jai Kant Gupta
NPCC Base Workshop
P.O. Matigara
734010
Siliguri, West Bengal ….……………..Petitioner
Versus
Central Information Commission
Through its Registrar
Block No. 4 (5th Floor)
JNU Campus,
New Delhi – 110067 ….…………….. Respondent 1
Shri A. Mishra
Former Public Information Officer
NPCC Ltd., Corporate Office
Plot No. 67-68, Sector 25
Faridabad – 121004
Haryana ….…………….. Respondent 2
Mr. Arbind Kumar, CMD
Former First Appellate Authority
NPCC Ltd., Corporate Office
Plot No. 67-68, Sector 25
Faridabad – 121004
Haryana ….…………….. Respondent 3
Shri A.K. Singh, DGM
Present Public Information Officer
NPCC Ltd., Corporate Office
Plot No. 67-68, Sector 25
Faridabad – 121004 ….…………….. Respondent 4
Shri S. Basak, Additional GM
Present First Appellate Authority
NPCC Ltd., Corporate Office
Plot No. 67-68, Sector 25
Faridabad – 121004 ….…………….. Respondent 5
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.
THIS PETITION RAISES THE FOLLOWING IMPORTANT POINTS OF LAW.
Firstly,
1.1 When a citizen uses provisions of the Right to Information Act, 2005 and is made to run from pillar to post to obtain the information, and ultimately he receives it, after substantial delay and repeated complaints and appeals, then, should penalty and compensation be imposed under section 20(1) and 19(8)(b) of the RTI Act respectively, notwithstanding the ultimate receipt of information.
1.2 When section 20(1) of RTI states that penalties shall be imposed for default, then, should the CIC not be held duty bound to issue notices to the respondents to show cause.
1.3 If the respondents admittedly do not furnish the information within the time specified under section 7(1) and are unable to show any “ reasonable cause” for the default, then, is the CIC not duty bound to impose penalties and compensation.
1.4 When the complainant specifically prays for penalties and compensation to be imposed, then can the CIC a prayer to that effect without any reasoned order.
1.5 When the complainant, as in this case, specifically pleads and argues for compensation and penalties, could the CIC ignore the demand. Is the CIC not duty bound under section 20 of the act to follow the procedure laid down under section 20 by issuing notice to the respondents to show cause, here the parties to the case and thereafter make a reasoned order. In this case apart from the non-imposition of penalties the petitioner is aggrieved by the fact that the CIC did not follow the procedure at all and chose to not even issues show cause notice to the respondents.
Secondly,
2.1 Whether the CIC, after issuing notice to the respondent in respect of payment of compensation to the petitioner, could have dropped the proceedings without hearing the petitioner.
Thirdly,
3.1 Whether the CIC is right to close proceedings merely on a formal order for information to be given without actually insuring that the said information is given?
3.2 Whether the CIC be directed to follow best practices prevailing in the country as, for example, by the State Information Commissioners (SICs) in Bihar, Gujarat, UP and other states where the case is not closed until the information is provided to the satisfaction of the commission/complaint.
MOST RESPECTFULLY SHOWETH.
1. This is a petition preferred by the petitioner herein under the provisions of Article 227 of the Constitution of India for issuance of order(s), direction(s) to respondent no. 1 directing him to impose penalty as provided under section 20 of the RTI Act, 2005.
2. The Petitioner is an employee of the National Projects Construction Corporation Ltd. The salary of the petitioner including other employees of the Matigara unit of NPCC was not paid for a period of 18 months whereas the salary of the CMD, Zonal Manager and other high ups of the corporate Office and Eastern Zonal Office was paid intermittently at every month whereas there is separate funds for the payment of salary/wages of the employees of the Corporate Office, Zonal Office and Field Units. He could not understand why his salary was not paid especially when the all the high ups including the Highest Authority i.e. CMD was being paid regularly at every month.
3. The petitioner therefore, made an RTI application on 16th March 2006 to respondent no 2, a true copy of which is annexed hereto and marked Annexure P-1.
4. The respondent no. 1 is the Central Information Commissioner who has made the impugned orders. Respondent no. 2 was the former Public Information Officer (PIO) who was required to provide information under section 7, RTI. Respondent no. 3 was the former First Appellate Officer under Section 19 (i), RTI. Respondents no. 4 and 5 are the present officers.
5. The respondent no 1 is Central Information Commissioner (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, filed by persons who have been refused access to any information(s) requested or 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 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 is former PIO and respondent no. 3 is former first appellate authority for the purposes of the RTI Act. Respondent no 2 was the PIO responsible to provide information within 30 days of receipt of application. Respondent no 3 was the Appellate Authority responsible to receive and hear appeals from people who are dissatisfied from the reply of the PIO.
FACTS:
The facts, succinctly stated, leading to the present appeal are as under:
The NPCC is a government company, which deals in construction work at different sites.
The principle problem that arose in the case at hand is, vis-à-vis non-payment of the wages/salary of the officers/staff and workmen at the field unit.
As long as the work of the project was ongoing and money was coming from the clients, the employees found that they were getting their salaries regularly. The surplus funds were remitted to the head office/ Zonal Office or as per their instructions entered the coffers of the company. After the project ended, and the payments to the Field Unit ceased from the Project Authority/client side, the employees of the Field Unit were subjected to long delays in getting their salaries. The rout cause of the non-payment was on account of the indifferent attitude and highhandedness of the management as regards the payment of salary/wages to the employees of the certain Field Units. The salaries of the Chairman and Managing Director as well as other high-ups posted at the Corporate Office as well as in the Eastern Zonal Office, were paid promptly, every month however, the salary/wages of the employees inclusive of the petitioner was not paid.
Inspite of the fact that the Corporate Office/Zonal Office did not have any of its own income, and the expenditures of Corporate office was being managed by its Field Units and funds received from the Ministry, the salary of the CMD and other high ups at Corporate office and Eastern Zonal office was paid regularly but the employees posted at Field Units where own input was over, were not paid regularly. It is also a fact that the basic service conditions of employees of similar post were same irrespective of their place of posting.
Teesta Ph –1/Matigara Unit is under Eastern Zonal Office with overall control of Corporate Office and the CMD and Zonal Head/Zonal Manager of Eastern Zonal Manager are responsible for the payment of the employees of the Unit under their control. Petitioner is an employee of the National Projects Construction Corporation Ltd. (NPCC). The respondent no. 1 is the Central Information Commissioner who has made the impugned orders. Respondent no. 2 was the former Public Information Officer (PIO) who was required to provide information under section 7, RTI. Respondent no. 3 was the former First Appellate Officer under Section 19 (i), RTI. Respondents no. 4 and 5 are the present officers. The Petitioner and others are working at the NPCC office at Matigara, in Siliguri, West Bengal. The salary of the petitioner including other employees of the Matigara unit of NPCC was not paid for a period of 18 months whereas the salary of the CMD, Zonal Manager and other high ups of the corporate Office and Eastern Zonal Office was paid intermittently at every month whereas there is separate funds for the payment of salary/wages of the employees of the Corporate Office, Zonal Office and Field Units. He could not understand why his salary was not paid especially when the all the high ups including the Highest Authority i.e. CMD was being paid regularly at every month. He, therefore, made an RTI application 16th March 2006 to the respondent no 2, a true copy of which is annexed hereto and marked Annexure P-1.
Respondent 2 did not reply within the maximum statutory period of 30 days as laid down by Section 7 (1) of the RTI. He therefore filed the first appeal before R3 by appeal dated 19th May 2006, a true copy of which is annexed hereto and marked Annexure P-2.
He received no reply to this appeal. The maximum period specified under Section 19 is 45 days in the case of an appeal.
He therefore filed an appeal before Respondent no. 1 dated 8th July 2006, a true copy of which is annexed hereto and marked Annexure P-3.
On the 4th of August 2006, while the matter was pending before the CIC, R3 made an order directing R5 to provide the information within 3 days. It is possible that the order may have been passed after R3 received notice from R1. a true copy of the said order is annexed hereto and marked Annexure P-4.
On the same day, i.e. on the 4th August 2006 R5, who was the PIO at the time, sent the petitioner false information. Hereto annexed and marked Annexure P-5. The falsity of the information provided lies in this that R5 informed that the pay and allowances of the whole staff borne on regular establishment whether employed in the head offices or in the field units should be drawn in the head office. This was false because the pay was drawn in the field Units and not in the head office in regards to the employees posted in the Field Units. The practice of drawing the pay in the head office was an earlier practice discontinued forty-two years ago.
The petitioner therefore wrote to R1 on 18th August 2006, annexed hereto and marked annexure P-5. In the said letter the petitioner complained of the wrong information provided and the information provided late. He requested that an urgent hearing of his appeal before the CIC. He also pointed out in the letter that he asked for the rules of the payment of salary and wages whereas R5 had provided the rules relating to preparation of salary. He stated that 5 months had passed and yet he had not received the information. He requested that his appeal before the CIC be heard. On 21st August R1 issued notices of hearing to R4 and R5 as well as the petitioner and fixed the date of hearing to 4th October 2006, annexed hereto and marked Annexure P-6 is a copy of the said notice.
On 01/09/2006, respondent no. 4 and respondent no. 5 submitted replies to the complaint annexed hereto and marked Annexure P-7 & P-8 respectively, copies of the replies of respondent no. 4 and respondent no. 5.
In the reply of respondent no. 4 he admits the default, however, he does not deal with the complaint of the petition that wrong information was supplied. Respondent no. 5 iremained silent as regards the delay aspect, and the aspect of furnishing wrong information.
On 18th September 2006, the petitioner filed his rejoinder, seeking penalty and compensation therein and also correct information annexed hereto and marked Annexure P-9.
On 1st November 2006, the hearing took place in the presence of all the parties. Order was made on 16th November 2006, annexed hereto and marked Annexure P-10. In the impugned order of the CIC dated 16th November 2006, it is observed:
“The AA, curiously enough, took no action on the first appeal, forcing the complainant to file a second appeal before the Commission. Should the AA have performed his appointed duty under the RTI Act, the need for the complainant to file the second complaint would have been obviated. In that sense, the complainant has suffered a serious and wholly avoidable detriment in getting his rightful claim to the information requested by him.
Shri S. Basak, successor to Shri Arbind Kumar as Appellate Authority, pointed out during hearing on 1.11.2006 that the inaction by his predecessor occurred due to his relative inexperience in RTI related matters. This explanation is unacceptable. Shri Arbind Kumar is senior officer and should have known well enough the duty cast on him by the RTI Act and the need to discharge the same responsibly. There is no doubt that the omission by Shri Arbind Kumar to discharge his duty as AA caused avoidable harassment and detriment to the appellant, Shri Jai Kant Gupta.
A notice may issue to the public authority, NPCC, as well as to Shri Arbind Kumar, Chairman & Managing Director & the then AA, NPCC as to why compensation of Rs. 20,000/- under Section 19(8)(b) should not be awarded to the complainant for the failure of the AA to discharge the latter’s duty assigned under Section 19(6) of the RTI Act”.
In the first place, the error in the said order lies in the fact that the CIC makes no reference to the default by respondent no. 2. In the second place, it fails to issue notice in respect to payment of penalty.
In the third place, it makes no reference to the wrong information provided.
Notwithstanding this order, the petitioner received no information. He therefore served on respondent no. 1, a letter dated 8th December 2006 annexed hereto and marked Annexure P-11.
On 12th December 2006 he received incomplete information from respondent no. 5, annexed hereto and marked Annexure P-12. He was given the pay scales of various employees instead of the relevant rules asked for.
On 11th January 2007, the petitioner wrote another letter to respondent no. 1 complaining that the information had still not been given, and requesting that penalty and compensation be imposed, annexed hereto and marked Annexure P-13. He also requested that the date of hearing be fixed.
There was no response to this letter. The petitioner sent another reminder on 7th February 2007 to respondent no. 1 annexed hereto and marked Annexure P-14. Once again there was no response.
Frustrated by the conduct of respondent no. 1, the petitioner filed a fresh RTI application to respondent no. 4 on 1st December 2006, annexed hereto and marked Annexure P-15.
He received the correct information on 15th February 2007, annexed hereto and marked Annexure P-16.
On the 7th of May 2007, he wrote a letter to the commission requesting compensation, hereto annexed and marked Annexure P-17.
In March 2007, a colleague of the petitioner saw the entire file of the CIC relating to this case and was surprised to see that the proceedings for compensation had been dropped by respondent no. 1 without notice to the petitioner and without a hearing. The proceedings were dropped on the basis of a letter dated 6th December 2006 of respondent no. 3 annexed hereto and marked Annexure P-18.
In the said letter, it is admitted that respondent no. 3 had defaulted. False allegations were made against the petitioner. It was alleged that he was aware of the rules but according to the petitioner these rules were not available anywhere. It was further alleged that he was in the habit of asking for information time and again. The petitioner had made 15 applications under the RTI Act relating to his service matters, over a period of one and a half years. It certainly cannot be said that on account of these applications he has created hindrance to the working of the corporation.
It was further submitted that the appeal was time barred. However, if the point was raised and the petitioner was heard, the delay could have been condoned, under the proviso to section 19(1).
On 11.12.2006, Nisha Singh, Joint Secretary and Assistant Registrar suggested in an office note to the CIC that he “may like to decide to accept the reply” of R3.
On 22.12.2006, P.K. Gera, Additional Secretary and Registrar submitted an “off the record note”, stating therein as under:
“IC(T) has desired me to study the case and indicate if the matter is fit for providing the compensation to the appellant. Without going into the merits of the case, I have gone through the papers and would recommend that the case for providing compensation is not very straight as the appellant has not given any details as to how he has suffered on account of non-availability of information. No where details are available to appreciate detriment suffered by the appellant. The reasons for not giving the compensation by the CMD of NPCC are also not very satisfactory as CMD should have disposed off this case and prevent the appellant approaching the Commission.”
Below that note respondent no. 1 wrote on 3rd January 2006:
“I agree.”
On 05.01.2007, the Mr. Gera further recommended as under:
“The commission need not issue any further orders for agreeing with the CMD for not paying the compensation as indicated in its decision placed at p.66/c. Perhaps, IC(T) can convey his displeasure to CMD, Shri Arbind Kumar for not disposing of the first appeal within the prescribed time limit as per the draft placed below.”
Thus, the file was closed.
G R O U N D S
1. The petitioner was made to run from pillar to post. He received the correct information only after filing a second RTI application, and that too after a period of more than eleven months. The default was admitted; no cause was shown for not imposing penalty and compensation.
1. 2. The principles of natural justice stand breached. The petitioner was not given notice of the hearings, he was not heard on several occasions and critical orders were made, to not impose any penalty or compensation. No notice for penalty was issued despite willful default.
3. The documents on record show that respondent no. 1 did not apply his mind. Without hearing the parties concerned, he acted on the instructions of his staff. Hereto annexed and marked Annexure P-19 is the copy of the records of the proceedings.
Relief Clause
1. For a writ of Certiorari or any other order quashing and setting aside the orders of 16th November 2006 of R1 and 3rd January 2007 of R1.
2. For an order imposing the maximum possible compensation and penalty under Section 19(8)(b) and Section 20 respectively of the RTI on the respondents.
For an order directing R1 not to close any case on the issuing of a mere direction unless R1 is satisfied, after hearing all the parties, that the dispute has been dissolved, and the information given in accordance with the law.
6. That the petitioner has no other equally effective alternative remedy other than the filing of the present petition. The petitioner has not filed any writ or other proceeding before this Hon’ble Court or in any other court on this issue.
PRAYER
a) For a writ of Certiorari or any other appropriate writ order or direction, quashing and setting aside the order dated 7.2.07 only to the extent that the order closes the case without imposition of penalties and compensation;
b) For an order directing the respondent no 1 to issue notices to the respondents to show cause as to why penalties and compensation should not be imposed, and after hearing the parties to make a reasoned order within a specified time frame;
c) In the alternative for an order directing the respondents to pay set sums by way of penalties and compensation as may be determined by this honorable court;
d) For an order directing respondent no.1 not to close any case on the issuing of a mere direction unless respondent no.1 is satisfied, after hearing all the parties, that the dispute has been dissolved, and the information given in accordance with the law;
e) 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: .07.2007