22 Jan 2121

Information under RTI cannot be refused without reasonable cause - Delhi High Court

Case : SH Rakesh Kumar Gupta (Erstwhile CPIO) Union Bank of India and Ors. v. Central Information Commission and Anr. W.P. (C) 900/2021 and CM APPL No. 2395/2021

Court : Delhi High Court

Bench : Justice Pratibha M. Singh

Decided on : 22 Jan 2121

Relevant statutes

Article 14 of Constitution of India

Section 5(4), 8(1)(d), 20, 6(1), 7(1), 5(3), 5(5) of Right to Information Act, 2005

Brief Facts and Procedural History

1. The right to information application was filed on 9th January 2018 by respondent no. 2 who was a chief manager at Union Bank of India for seeking information related to board approval along with justification for getting exemption with regard to 3 years branch head service. CPIO replied to it that the information can’t be provided as it’s an internal document of commercial confidence and is exempted from disclosure under section 8(1)(d) of the Right to Information Act, 2005.

2. Chief manager of Union Bank of India filed an appeal after the reply from CPIO before the Appellate Authority under the Right to Information Act, 2005. The appeal was dismissed as appellate authority also considered that information should not be provided as it is barred under section 8(1)(d) of the Right to Information Act, 2005. Therefore appeal was disposed of accordingly.

3. Chief manager of Union Bank of India filed the second appeal after 1st appeal being rejected, before Information Commissioner. The Information Commissioner was of the view that there was no reason to not provide the particular information to the Chief manager of Union Bank of India after examining the order dated 29th January 2020. The responses given by them were incomplete and evasive, so Information Commissioner issued a show-cause notice against CPIOs of Union Bank of India to give reasons regarding why penalty should not be imposed on them.

3. Proper information was not provided by CPIO even after a lapse of 2 and half years delay after the filing of the Right to Information application. The Information Commission asked the then CPIO and present CPIO to give a written explanation for why they didn’t provide the information to the Chief manager of the Union Bank of India. All written explanations must reach to Information Commissioner within 15 days of the order and be also directed to send a revised reply to the Chief manager of Union Bank of India for why they didn’t provide the information to him.

4. After show cause notice was issued by Information Commission, Rakesh Kumar Gupta took a completely different stand and stated that information sought could not be found on record. The CIC order dated 14th December 2020 imposed a penalty of Rs. 10,000/- each on both the CPIOs under section 20 of the Right to Information Act, 2005.

The Issue of the Case

Whether CPIO was correct in not providing information to the Chief manager of Union Bank of India?

The Observations of the Court

1. The Honorable Delhi High Court opined that as different stands were taken by petitioner after the issuance of show cause notice by Information Commissioner and therefore penalty of Rs 10,000/- was imposed on both CPIOs under section 20 of Right to Information Act 2005 was justified as the completely unrelated ground was taken as a defence.The Honorable Delhi High Court also opined that since the documents were not available in records and therefore CPIOs can’t be held responsible for not furnishing information. However, the CPIO made an effort to trace the documents but the same were not traceable.

2. The Honorable Delhi High Court relied on the judgment of R.K Jain v. Union of India (LPA 369/2018, decided on 29th August 2019) in this case it was held that since CPIO is the custodian of information or documents sought for, it is their responsibility to provide information under the scheme of Right to Information Act, 2005 and if they don’t provide the information they are liable to be penalized under section 20 of Right of Information Act, 2005.

3. The Honorable Delhi High Court relied on the judgment of Registrar of Companies v. Dharmendra Kumar Garg (WP(C) 11271/2009, decided on 1st June 2009 for elaborating the role of CPIOs under Right to Information Act, 2005. In this case, it was held that merely because the CIC found that PIO was not correct it can’t automatically lead to the issuance of show-cause notice. A penalty can only be imposed on them if without reasonable cause they refuse the application and if in every case CIC starts giving a penalty to PIO, it would undue pressure on them and repute of Right to Information Act, 2005 will be diminished.

4. The Honorable Delhi High Court relied on the judgment of Union of India v. Vishwas Bhaburkar (WP(C) 3660/2012, decided on 13th September 2013) in this case it was held that if any information or documents sought and is not readily available CPIO should make every effort to find it or trace it but in spite of lots of efforts, if CPIO is not able to trace it, they are justified in expressing their inability in providing the information sought.

5. The Honorable Delhi High Court relied on the judgment of J.P. Aggrawal v. Union of India (WP(C) 7232/2009 decided on 4th August 2011 in this case it was held that CPIOs/PIOs are not merely “post offices” as they have the responsibility to facilitate the purpose of Right to Information Act, 2005. Under sections 6(1) and 7(1) it’s the duty of PIOs to provide the information sought as per the statutory requirement of the Right to Information Act, 2005. Section 5(4) strengthens the PIO authority within the department and if there is any default in providing information sought by PIO, it's expected from PIO to recommend alternative remedial actions to be taken.

6. The PIO is expected to apply his/her mind and analyze materials presented before him/her and then either disclose the information sought or give grounds for its non-disclosure. The Honorable Delhi High Court relied on the judgment of Mujibur Rahman v. Central Information Commission in this case it was held that information seekers must be provided information and information must not be denied by filibustering tactics and to ensure this provision of penalty has been made in Right to Information Act, 2005.

7. The Honorable Delhi High Court relied on the judgment of Vivek Mittal v. B.P. Srivastava 2009 in this case it was held that PIO cannot escape from his obligations and responsibilities and can’t say that they failed to fulfil obligation because of the act of their subordinates. The Honorable Delhi High Court also relied on the judgment of Secretary, Haila Kandi Bar Association v. State of Assam in this case it was held that as high ranked officers were instructed not to mechanically forward information collected by their subordinates, so PIOs were appointed by Right to Information Act, 2005 to place the confidence on the objectivity of a person and PIO mechanically forwards the information, it would be betrayal against his duties and his position.

The Decision held by the court

As both the CPIOs were retired, so their penalty was reduced to Rs. 5000/- each. The said payment shall be deposited within 6 weeks from the date of this order. The present petition and all pending applications are disposed off.

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