Thursday 19 January 2012

PIO is not a mere post office

Delhi High Court
J.P. Agrawal vs Union Of India & Ors on 4 August, 2011
Date of decision: 4th August, 2011
+ W.P.(C) 7232/2009
J.P. AGRAWAL ..... Petitioner
Through: Mr. Anurag Goel, Adv.
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Rishi Dewan, Adv. for R-4.
1. Whether reporters of Local papers may Yes be allowed to see the judgment?
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes in the Digest?
1. The petition impugns the order dated 16 th January, 2009 of the Central Information
Commission (CIC) imposing penalty under Section 20 of the Right to Information Act, 2005 on
the petitioner of `12,500/- deductable in two installments of `6,250/- each from the salary of the
petitioner starting from 3rd March, 2009. The petition though came up before the Court first on 2
nd March, 2009 but no stay was granted. The petitioner on 14th December, 2009 informed that
penalty amount had been paid to the CIC and further submitted that the fault leading to the
imposition of penalty was not in his functioning as the Public Information Officer (PIO) of the
DDA but of Mr. S.C. Gupta the then Dy. Director (Housing) of the DDA. I may notice that the CIC
has vide the impugned order, while levying penalty of `12,500/- on the petitioner, levied penalty
of `12,500/- on the said Shri S.C. Gupta also and deductable from his salary. On the said
contention of the petitioner, the said Shri S.C. Gupta was impleaded as respondent no.4 to the
petition and in fact he alone has been served with the notice of the petition. Shri S.C. Gupta has
filed a counter affidavit. The counsel for the petitioner and the counsel for the respondent no.4
Shri S.C. Gupta have been heard.
2. It is the case of the petitioner that he, as PIO of the DDA had acted with promptitude and had
on the very next day of receiving the RTI application, sought information from the respondent
no.4 and the delay in providing information was of the respondent no.4. It is further the case of
the petitioner that in pursuance to the directions of the First Appellate Authority to provide
further information also, the delay in providing the same was of the said Shri S.C. Gupta.
3. The CIC however has in the order dated 16 th January, 2009 impugned in this petition held
that it had in the earlier order dated 26 th September, 2008 (which is not before the Court) held
that it is the not the delay in response for which the petitioner had been held liable but the
petitioner had failed to provide the information sought and had simply forwarded a report to the
information seeker without caring to examine whether the report even addressed the information
sought. It was thus held that the petitioner had abdicated his responsibility as PIO. It was further
held that the petitioner as the PIO of the DDA was responsible for providing the information and
had failed to apply his mind as to what information was sought and what was being passed on.
The said conduct of the petitioner was held to be amounting to deemed refusal of information.
The petitioner has however in the writ petition failed to address the grounds on which the
maximum penalty leviable under the Act had been apportioned between him and Shri S.C. Gupta
and has merely reiterated that the responsibility was of Shri S.C. Gupta.
4. It is not in dispute that the petitioner was the designated PIO under Section 5 of the Act of the
DDA. Under Section 5(3) of the Act it was for the petitioner to deal with the request and render
reasonable assistance to the information seeker. The PIO under Section 5(4) is authorized to seek
the assistance of any other officer as may be considered necessary for the purpose of providing
information and Section 5(5) mandates such officers to render all assistance to the PIO. Section
5(5) also deems such officers from whom information is sought, as the PIO for the purpose of any
contravention of the provisions of the Act.
5. The contention of the petitioner appears to be that he as PIO was merely required to forward
the application for information to the officer concerned and/or in possession of the said
information and to upon receipt of such information from the concerned officer furnish the same
to the information seeker. He would thus contend that as long as he as PIO had acted with
promptitude and forwarded the application to the officer in possession of the information and
furnished the same to the information seeker immediately on receipt of such information, he
cannot be faulted with and the liability for penalty if any has to be of such other officer from
whom he had sought the information and cannot be his.
6. The argument aforesaid reduces the office of the PIO to that of a Post Office, to receive the RTI
query, forward the same to the other officers in the department/administrative unit in possession
of the information, and upon receipt thereof furnish the same to the information seeker. It has to
be thus seen from a perusal of the Act, whether the Act envisages the role of a PIO to be that of a
mere Post Office.
7. Section 4 of the Act obliges every public authority to publish inter alia the particulars of
facilities available to citizens for obtaining information and the names, designations and other
particulars of the PIOs. Section 5 requires the public authorities to designate PIO to provide
information to persons requesting for information under the Act. Such PIOs, under Section 5(2)
of the Act are to receive applications for information and under Section 5(3) of the Act are to deal
with request from persons seeking information and render reasonable assistance to the
information seekers. The Act having required the PIOs to "deal with" the request for information
and to "render reasonable assistance" to the information seekers, cannot be said to have intended
the PIOs to be merely Post Offices as the petitioner would contend. The expression "deal with", in
Karen Lambert Vs. London Borough of Southwark (2003) EWHC 2121 (Admin) was held to
include everything right from receipt of the application till the issue of decision thereon. Under
Section 6(1) and 7(1) of the RTI Act, it is the PIO to whom the application is submitted and it is he
who is responsible for ensuring that the information as sought is provided to the applicant within
the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the
PIO within the department; if the PIO finds a default by those from whom he has sought
information, the PIO is expected to recommend a remedial action to be taken. The RTI Act makes
the PIO the pivot for enforcing the implementation of the Act.
8. Even otherwise, the very requirement of designation of a PIO entails vesting the responsibility
for providing information on the said PIO. As has been noticed above, penalty has been imposed
on the petitioner not for the reason of delay which the petitioner is attributing to respondent no.4
but for the reason of the petitioner having acted merely as a Post Office, pushing the application
for information received, to the respondent no.4 and forwarding the reply received from the
respondent no.4 to the information seeker, without himself "dealing" with the application and/or
"rendering any assistance" to the information seeker. The CIC has found that the information
furnished by the respondent no.4 and/or his department and/or his administrative unit was not
what was sought and that the petitioner as PIO, without applying his mind merely forwarded the
same to the information seeker. Again, as aforesaid the petitioner has not been able to urge any
ground on this aspect. The PIO is expected to apply his / her mind, duly analyse the material
before him / her and then either disclose the information sought or give grounds for nondisclosure.
A responsible officer cannot escape his responsibility by saying that he depends on the
work of his subordinates. The PIO has to apply his own mind independently and take the
appropriate decision and cannot blindly approve / forward what his subordinates have done.
9. This Court in Mujibur Rehman Vs. Central Information Commission MANU/DE/0542/2009
held that information seekers are to be furnished what they ask for and are not to be driven away
through filibustering tactics and it is to ensure a culture of information disclosure that penalty
provisions have been provided in the RTI Act. The Act has conferred the duty to ensure
compliance on the PIO. This Court in Vivek Mittal Vs. B.P. Srivastava MANU/DE/4315/2009
held that a PIO cannot escape his obligations and duties by stating that persons appointed under
him had failed to collect documents and information; that the Act as framed casts obligation upon
the PIO to ensure that the provisions of the Act are fully complied. Even otherwise, the settled
position in law is that an officer entrusted with the duty is not to act mechanically. The Supreme
Court as far back as in Secretary, Haila Kandi Bar Association Vs. State of Assam 1995 Supp. (3)
SCC 736 reminded the high ranking officers generally, not to mechanically forward the
information collected through subordinates. The RTI Act has placed confidence in the objectivity
of a person appointed as the PIO and when the PIO mechanically forwards the report of his
subordinates, he betrays a casual approach shaking the confidence placed in him and duties the
probative value of his position and the report.
10. Thus no fault can be found with the order of the CIC apportioning the penalty of `25,000/-
equally between the petitioner and the respondent no.4.
11. There is thus no merit in the petition; the same is dismissed. No order as to costs.
AUGUST 4, 2011
(corrected and released on 2 nd September, 2011)
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