Section 6 (1) of the RTI ACT:
The appellant submitted an RTI application dated 28th December 2012 before the CPIO, Health Department. UT Chandigarh seeking copies of his Casual Leave Applications w.e.f 1/1/2007 – 28/12/2012 along with Annexures. Appellant also sought Casual Leave Applications of Shri Harbans Singh for the same period.
Decision Notice: “After hearing both the parties, Commission directs the CPIO, Malaria Wing (Health Department) to obtain the requested information from the holder of the information namely CPIO, Civil Dispensary, Sector – 38 where the appellant was previously posted and also from all the other Public Authorities where the appellant was during the period 2005 – 2010 pertaining to his C.L. record and to provide the same to the appellant within three weeks of receipt of the order.
Commission accepts the explanation of the CMO, In charge, Govt. Civil Block Hospital regarding the delay in providing information pertaining to the fourth C.L. application of the appellant and condones the same. Commission draws the attention of the CPIOs and the appellant to the observations of the Apex Court in the matter of Central Board of Secondary Education and Anr. vs. Aditya Bandopadhyay and Ors. (Civil Appeal No. 6454 of 2011 dated 9.8.2011, [RTIR III (2011)242 (SC)] where in it has been observed that:
“37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4 (1) of the act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information, (that is information other than those enumerated in section 4 (1) (b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter – productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non – productive work of collecting and furnishing information. The act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75%of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritizing ‘information furnishing’, at the cost of their normal and regular duties.”
Appellant was directed to desist from misusing the cherished right given to him under the transparency Act in future.
Appellant/Complainant: Ramesh Kumar vs. Health Department (Malaria), UT Chandigarh; appeal no: CIC/ DS/A/2013/000927 decided on: 11.12.2013: citation: RTIRI (2014) 49 (CIC)]
Section 19 (8) (a) of the RTI ACT:
Vishwas Bhamburkar the applicant had filed an application on14.5.2011 with the PIO in the Ministry of Tourism, PSW Division, seeking an authenticated photo copy along with the file nothings of the Project Report for Development of Ayurvedic Health Resort and Herbal Garden at Vgamon, which was submitted by the Department of Tourism, Government of Kerala in December, 2005 and was bearing file number 426/D(CN) dated 20.02.2006.
The PIO in his reply informed the applicant that the said project report had not been received in the Ministry of Tourism. Being dissatisfied with the reply furnished by the PIO, the respondent preferred an appeal before the First Appellate Authority. The following was the order passed by the First Appellate Authority:
“The noting initials on the cover page of the Project Report produced by Shri Bhamburkar suggest that the Report was received in MOT. However since it is only a photo copy, its authenticity cannot be taken for granted. CPIO& Asstt. DG (PSW) is directed to make thorough search for the said Project Report and records pertaining to its receipt and movement in the Ministry. If the report is traced, its authenticated copy will be supplied by the CPIO to the applicant. If the Report is not traceable, but records are found which confirm that the Report was received in the MOT, a report may be lodged with the Police regarding the missing documents. An intimation to this effect may then be conveyed to the applicant by the CPIO. In case neither the Project Report nor any records of its receipt in Ministry are available, the applicant may be so informed by the CPIO. Action has to be taken within 15 days”.
Being dissatisfied the applicant filed second appeal before the Central Information Commission.
In this regard, the Commission observed that either the PIO or some other officer could be hiding the information or the report being submitted could be forged or it could be a conspiracy by which the report and all associated papers were taken away from the Government. Being aggrieved from the order of the Commission, the Union of India is before the High Court of Delhi by way of the writ petition.
The order of the High Court of Delhi is summarised as under:
“The learned counsel for the petitioner assailed the order of the Commission primarily on the ground that the Right to Information Act does not authorize the Commission to direct an inquiry of this nature by department concerned though the Commission itself can make such an inquiry as it deems appropriate. Reference in this regard is made to the provisions contained in Section 19 (8) of the Act. A careful perusal of sub section (8) of Section 19 would show that the Commission has the power to require the public authority to take any such steps as may be necessary to secure compliance with the provisions of the Act. Such steps could include the steps specified in clause (i) to (iv) but the sub – section does not exclude any other step which the Commission may deem necessary to secure compliance with the provisions of the Act. In other words, the steps enumerated in clause (i) to (iv) are inclusive and not exhaustive of the powers of the Commission in this regard.”
“The Right to Information Act is a progressive legislation aimed at providing, to the citizens, access to the information which before the said Act came into force could not be claimed as a matter of right. The intent behind enactment of the Act is to disclose the information to the maximum extent possible subject of course to certain safeguards and exemptions. Therefore, while interpreting the provisions of the Act, the Court needs to take a view which would advance the objectives behind enactment of the Act, instead of taking a restricted and hyper – technical approach which would obstruct the flow of information to the citizens.”
“This can hardly be disputed that if certain information is available with the public authority, that information must necessarily be shared with the applicant under the act unless such information is exempted from disclosure under one or more provisions of the act. it is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. therefore, whenever an information is sought and it is not readily available a thorough attempt needs to be made to search and locate the information wherever it may be available. it is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the PIO would be justified in expressing his inability to provide the desired information. even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessary fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of record. unless such course of action is adopted, it would be possible for department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the right to information act.”
“Since the Commission has the power to direct disclosure of information provided, it is not exempted from such disclosure, it would also have the jurisdiction to direct an inquiry into the matter wherever it is claimed by the PIO that the information sought by the applicant is not traceable/readily traceable/currently traceable. Even in a case where the PIO takes a plea that the information sought by the applicant was never available with the government but, the Commission on the basis of the material available to it forms a prima facie opinion that the said information was in fact available with the government, it would be justified in directing an inquiry by a responsible officer of the department/office concerned, to again look into the matter rather deeply and verify whether such an information was actually available in the records of the government at some point of time or not. after all, it is quite possible that the required information may be located if a thorough search is made in which event, it could be possible to supply it to the applicant. fear of disciplinary action, against the person responsible for loss of the information, will also work as deterrence against the willful suppression of the information, by vested interests. it would also be open to the Commission, to make an inquiry itself instead of directing an inquiry by the department/office concerned. Whether in a particular case, an inquiry ought to be made by the Commission or by the officer of the department/office concerned is a matter to be decided by the Commission in the facts and circumstances of each such case.
In the case before the High Court of Delhi, the PIO, who appeared before the Commission admitted that the photo copy of the report made available to the Commission was signed by the concerned Joint Secretary and director at the relevant time. Prima facie, they would have signed the documents only if they had received either the original report or its copy. the endorsement made on the cover of the documents would show that the report /copy on which endorsement was made was signed by the Secretary, Tourism, Government of Kerala. Had a thorough inquiry been made by inquiring from the concerned officer to find out as to where, when and in what circumstances they had signed the documents, it could have been possible to locate the report in the records of the government.”
For the reasons stated hereinabove, the court found no merit in the writ petition and the same was dismissed. it is directed that a thorough and meaningful inquiry in terms of provisions of the directions of the Commission be carried out by an officer not below the rank of a Joint Secretary to the Government within eight weeks from today and a copy each of the said report to be provided to the Commission as well as to the respondent before the Court.
The petitioners were directed to circulate a copy of the order to all the CPIOs /PIOs of the Government of India and other Public Authorities, within four weeks for information and guidance.
