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2012 DIGILAW 1491 (DEL)

Prem Lata v. Central Information Commission

2012-04-26

VIPIN SANGHI

body2012
JUDGMENT : Vipin Sanghi, J. 1. The petitioner by the present writ petition under Article 226 and 227 of the Constitution of India, assails the following orders of the Chief Information Commission (hereinafter referred to as the "CIC"): A. Order dated 24.11.2011 in CIC/SS/A/2011/000973; B. Order dated 07.02.2012 in CIC/SS/A/2011/000578; C. Order dated 07.02.2012 in CIC/SS/A/2011/001328; and D. Order dated 07.02.2012 in CIC/SS/A/2011/001351 and CIC/SS/A/2011/001534-36. 2. The petitioner in the present petition was the Chief Public Information Officer (CPIO), Trade Mark Registry, Intellectual Property Office, New Delhi, at the relevant time. She was also holding the position of Assistant Registrar of Trade marks. 3. By order dated 24.11.2011 in CIC/SS/A/2011/000973, the CIC directed that disciplinary action be taken against the petitioner, under Section 20 (2) of the Right to Information Act, 2005 (hereinafter referred to as the "Act") for persistently failing to supply information on various occasions, including the present one. 4. By order dated 07.02.2012 in CIC/SS/A/2011/000578, the CIC imposed a penalty of Rs. 25,000, under Section 20(1) of the Act, on the petitioner for failing to provide information, without reasonable cause. 5. By order dated 07.02.2012 in CIC/SS/A/2011/001328; and order dated 07.02.2012 in CIC/SS/A/2011/001351 and CIC/SS/A/2011/001534-36, the CIC directed the petitioner to dispose of the respective RTI applications within two weeks. The CIC, further, issued show cause notice under Section 20(1) under the Act for not responding to the RTI application and subsequently for not complying with the orders of the first appellate authority (FAA) for providing information. 6. At the outset, I may state that the challenge raised by way of the present petition, as regards the two orders dated 07.02.2012 mentioned at SI. Nos. "C" and "D" above, is premature. These orders of the CIC call upon the petitioner to show cause as to why action should not be taken against her for not supplying information as required of her under the Act. The said show cause notices are yet to be adjudicated upon. In case order(s) is/are passed by the CIC, by which the petitioner is aggrieved, the petitioner would be well within her rights to challenge and assail the same. Consequently, this writ petition is dismissed as premature qua the two orders dated 07.02.2012 mentioned at SI. Nos. "C" and "D" in paragraph 1 of this order. In case order(s) is/are passed by the CIC, by which the petitioner is aggrieved, the petitioner would be well within her rights to challenge and assail the same. Consequently, this writ petition is dismissed as premature qua the two orders dated 07.02.2012 mentioned at SI. Nos. "C" and "D" in paragraph 1 of this order. The learned CIC shall proceed to dispose of the said show cause notices without, in any manner, being influenced by the dismissal of this writ petition as premature qua these show cause notices. 7. I now proceed to consider and dispose of the petition as regards challenge to order dated 24.11.2011 in CIC/SS/A/2011/000973 and order dated 07.02.2012 in CIC/SS/A/2011/000578 mentioned at SI. Nos. "A" and "B" in para 1 above. 8. The facts, leading to the passing of the impugned order dated 24.11.2011 in CIC/SS/A/2011/000973, mentioned at SI. No. "A" in paragraph 1 are as under: (i) On 19.10.2010, Respondent No. 2 herein addressed an RTI application to the petitioner seeking the following information: "1. When was the file received by the Delhi Office from Mumbai Head Office. 2. When will we be given a hearing as per the orders of the Learned Joint Registrar dated 29th June, 2006." The file referred to in the application pertained to the representation of respondent no. 2 raising objection to the renewal of trademark registered vide no. 543474, in favour of a third party, and a subsequent complaint filed by respondent no. 2 with respect to the alleged illegal renewal of the said trade mark. The Joint Registrar of Trademarks vide order dated 29.06.2006 directed transfer of the said file to the Trademark Registry, Delhi. (ii) On 25.10.2010, respondent no. 2 made a representation before the Technical Head, Trademarks Registry, requesting to provide the information sought for expeditiously. (iii) Since the information was not provided by the petitioner, respondent no. 2 preferred a first appeal. The FAA vide letter dated 30.12.2010 informed respondent No. 2 that the information could not be provided to it due to administrative reasons. It was also informed that the petitioner had been directed to provide the information. (iv) On account of non-compliance of the directions of the FAA by the petitioner, respondent no. 2 filed a second appeal before the CIC under Section 19 (3) of the Act in April 2011. It was also informed that the petitioner had been directed to provide the information. (iv) On account of non-compliance of the directions of the FAA by the petitioner, respondent no. 2 filed a second appeal before the CIC under Section 19 (3) of the Act in April 2011. (v) During the pendency of the said appeal, on 26.08.2011, the Assistant Public Information Officer (APIO), who is respondent no. 5 herein, provided the information as sought for by respondent no.2. (vi) The CIC, while taking note that this was not the first occasion where such callous, indifferent, and uncaring attitude had been shown by the petitioner in providing information under the Act, vide order dated 12.09.2011 directed issuance of a show cause notice as to why disciplinary proceedings should not be initiated against her under Section 20 (2) of the Act, and to further show cause as to why penalty should not be imposed on her, under section 20 (1) of the Act. (vii) The CIC again vide order dated 28.09.2011 directed issuance of a show cause notice under section 20 (1) of the Act, and further directed the petitioner to furnish its reply within 2 weeks of the receipt of the notice. (viii) Yet again, on 10.10.2011, the CIC issued notice under section 20 (2) of the Act and directed the petitioner to furnish her reply within 10 days of the receipt of the notice, (ix) The CIC on 25.10.2011 gave a personal hearing to the petitioner and thereafter on 24.11.2011 passed the impugned order. 9. The facts, leading to the issuance of the impugned order dated 07.02.2012 in CIC/SS/A/2011/000578, mentioned at SI. No. "B" in paragraph 1 above are as under: (i) On 08.11.2010, Respondent No. 3 herein addressed an RTI application to the petitioner requesting for furnishing immediately "the true, correct, complete and specific information comprising of reasons of not so far advertising the aforesaid application No. 1815038 in the Trade Marks Journal despite lapse of considerable period of more than four months after the date of acceptance thereof vide your office letter dated 29.06.2010 (a photo whereof is sent herein), and oblige." (ii) Since the information was not provided by the petitioner, respondent no. 3 preferred a first appeal. The FAA vide letter dated 05.01.2011 informed respondent No. 3 that the information could not be provided to it due to administrative reasons. 3 preferred a first appeal. The FAA vide letter dated 05.01.2011 informed respondent No. 3 that the information could not be provided to it due to administrative reasons. It was further disclosed that the petitioner had been directed to provide the information. (iii) On account of non-compliance of the directions of the FAA by the petitioner, respondent no. 2 filed a second appeal before the CIC. The CIC vide order dated 20.07.2011 directed issuance of a show cause notice under Section 18/19 of the Act, requiring her to appear before it with relevant documents and submissions on 17.08.2011. (iv) During pendency of the appeal, on 08.08.2011, respondent no. 5 herein provided the information as sought for by respondent no.3. (v) On 17.08.2011, the petitioner did not appear before the CIC. The CIC, while taking note of the fact that the petitioner did not tender any response with respect to the RTI application of respondent no.3, and that on two earlier occasions she had been penalised under Section 20 of the Act, summoned the petitioner under Section 18 (3) of the Act to appear before it on 29.09.2011 and give oral or written evidence as to why the RTI application of respondent no. 3 was not dealt with in accordance with the provisions of the Act. (vi) The CIC vide order dated 12.09.2011 directed issuance of show cause notice to the petitioner requiring her to show cause as to why penalty should not be imposed on her, under section 20 (1) of the Act, and further directed the her to furnish her reply within 10 days of the receipt of the notice and to appear before it on 29.09.2011. (vii) On 28.09.2011, respondent no. 3 addressed a letter to respondent no. 1, with copy to petitioner, claiming that the information furnished is incorrect, incomplete, misleading and unconvincing. The petitioner vide her response dated 05.10.2011 denied the allegations and informed respondent no. 3 that the complete file along-with the application details is available on the website. It was further stated that the attorney can obtain the information under rule 46 of the Trade Marks Rules and that no further request is liable to be replied. The petitioner vide her response dated 05.10.2011 denied the allegations and informed respondent no. 3 that the complete file along-with the application details is available on the website. It was further stated that the attorney can obtain the information under rule 46 of the Trade Marks Rules and that no further request is liable to be replied. (viii) The CIC vide orders dated 29.09.2011 and 31.10.2011 directed issuance of a show cause notice to the petitioner to show cause as to why penalty should not be imposed on her under section 20 (1) of the Act and to further show cause as to why disciplinary proceedings should not be initiated against her under Section 20 (2) of the Act. The petitioner was directed to appear before the CIC on 25.11.2011. The said hearing was adjourned to 08.12.2011. (ix) The CIC on 08.12.2011 gave a personal hearing to the petitioner and thereafter on 07.02.2012 passed the impugned order. 10. Learned Counsel for the petitioner submits that that the impugned orders are non-speaking inasmuch, as, the written submissions of the petitioner have not been considered by the CIC. It is submitted that no finding on the issues raised by her have been recorded by the CIC. Reliance is placed on the judgment of this court in A.M. Attar v. Central Information Commissioner and Ors., W.P. (C) No. 11930/2009. 11. It is submitted that the CIC cannot impose a penalty without recording a finding as to the malafides on the part of the CPIO. It is submitted that no such finding has been recorded in the present case. 12. It is further submitted that there were procedural irregularities in the conduct of proceedings, inasmuch, as, the FAA passed orders without service of first appeal on the petitioner, and without the said orders been communicated to the petitioner. It is also submitted, as regards order dated 07.02.2012 mentioned at SI. No. "B" in paragraph 1 above, that the petitioner, for the first time, learnt of the RTI application only upon service of the show cause notice of the CIC. 13. The petitioner also raises the following issues of law by way of the present petition: A. Advocates cannot in their professional capacity seek information under the Act, in view of Section 3 of the Act. It is submitted that the applicants of information, i.e. respondent no. 2 and respondent no. 13. The petitioner also raises the following issues of law by way of the present petition: A. Advocates cannot in their professional capacity seek information under the Act, in view of Section 3 of the Act. It is submitted that the applicants of information, i.e. respondent no. 2 and respondent no. 3, in the present case are practising advocates and have sought information that pertains to their clients and not themselves. B. Information which can be sought by other means cannot be sought under the Act. Information sought by the respondent no. 2 and respondent no.3 in the present case through their respective RTI applications can be otherwise obtained by following the procedure prescribed under the Trade Marks Act, 1999 and the Trade marks rules, 2002. It is submitted that the Trade Mark Registry is a quasi-judicial body and as such it cannot be by-passed, by seeking information under the RTI Act. Reliance is placed on the judgment of the Supreme Court in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125 . C. The right to seek information under the Act pertains to information held by the office and not in respect of information which is available in the public domain. The learned Counsel for the petitioner places reliance on the definition of "Information" under Section 2(f) of the Act. D. No person can, under the Act, seek information and ask as to why and for what reason something has not happened. The petitioner places reliance on the judgment of the Supreme Court in Khanapuram Gandaiah v. Administrative Officer and others, (2010) 2 SCC 1 , to further her submission. E. Application seeking information related to court proceedings cannot be processed under the Act. Reliance is placed on order dated 23.05.2011 of this Court in W.P. (C) No. 353/2011 and CM No. 7379/2011 titled as The Registrar, Supreme Court of India v. R.S. Misra and Ors., whereby the CIC has been restrained from proceeding with matters involving such questions. 14. It is submitted that the petitioner has been replying to a number of queries involving such issue(s), which are beyond the scope of the Act, and as such the petitioner is not bound to reply to them again and again under the Act. 15. Having perused the petition and heard the learned counsel for the petitioner, I find no merit in this petition. 16. 15. Having perused the petition and heard the learned counsel for the petitioner, I find no merit in this petition. 16. At the outset, I make it clear that the issues of law raised by the petitioner, by way of the present petition, do not arise for adjudication in the facts and circumstances of the case. The impugned orders have been passed by the CIC on account of the petitioner not performing its statutory duty, as a CPIO of a public authority, of furnishing its response to an application under the Act. 17. The petitioner cannot, in the garb of the issues of law, raised by way of the present petition, refuse to perform its duty to tender a response to an application, under the Act. The CPIO may be well within his/her rights to deny the information by raising issues of law and/or exemptions under Section 8 of the Act- in its response. However, the plea that legal issues and/or exemptions arise would not, by any means whatsoever, absolve the CPIO of its statutory obligation of replying to an application made under the Act within time. 18. A contrary position would render the entire statute meaningless, since the CPIO may then, according to his/her own whims and fancies regarding the maintainability of an RTI application, decide as to which application he/she wishes, or does not wish to, respond to. This is not what was intended by the legislature. Such a proposition strikes at the very heart and soul of the Act which was passed to secure access to information under the control of public authorities, which is vital for the functioning of a democracy. 19. The CPIO is duty bound to furnish a reply to an RTI application, because an applicant under the Act, whose application is being rejected has the right to know the reasons, basis/grounds on which his application has been refused, so as to enable him to know where he stands firstly, and, secondly, to enable him to pursue his remedies of appeal, if he so chooses. 20. 20. The submission of the petitioner that she has been replying to a number of similar queries, involving issue(s) of law raised by it in the present petition alleged to be beyond the scope of the Act, is no ground/reason, whatsoever, for her to not perform her statutory obligation under the Act, to furnish a reply to the present RTI applications. 21. It is for the afore-said reasons that the CIC limited itself to the issue of non-furnishing of information by the petitioner. The CIC considered the respective written submissions and the issues raised by the petitioner, and disposed them of as follows in its order dated 24.11.2011 in CIC/SS/A/2011/000973, mentioned at SI. No. "A" of paragraph 1 above are as under: "5. Accordingly to the Respondent CPIO, since the Appellant was a contesting party before the IPAB as an attorney, he was well-versed with the situation of the case in respect of which he had sought information under the RTI Act. It is submitted by the Respondent CPIO that the Appellant has also inspected the file of his case on 03/09/2010. The Respondent CPIO has also relied upon various judicial decisions to justify her actions for not providing any information to the Appellant. 6. The Commission has duly considered the submissions made by the Respondent CPIO during the hearing. The gist of the matter is that the Appellant had filed his RTI Application dated 1411012010 seeking certain information about one file relating to a complaint made by him with respect to illegal renewal of some trademark. It is of no relevance to this Commission as to what the nature of the said complaint was and what the merits of the case, which was pending before the IPAB, were. The Commission is concerned only with the RTI Act and has to limit the exercise of its powers within the statutory mandate of the RTI Act. If the Commission finds that the requirements under Section 20, of the RTI Act are satisfied, then it "shall" take the action prescribed under Sub-section (1) and (2) therein, as the case may be. 7. It does not concern the Commission as to whether or not the Appellant already had the information which he seeking through the mode of RTI Act. 7. It does not concern the Commission as to whether or not the Appellant already had the information which he seeking through the mode of RTI Act. The only concern is that the Appellant ought to have been replied within 30 days of receipt of his RTI Application by the Respondent CPIO irrespective of any other extraneous facts and circumstances. It was open for the Respondent CPIO to cite any of the exemption provisions under Section 8 or 9 of the RTI Act, if at all; the information which was sought by the Appellant was exempted from disclosure. Instead, the Respondent CPIO failed to tender any reply whatsoever to the Appellant within statutory time period of 30 days." (Emphasis supplied) 22. The plea of the petitioner, with regard to the order dated 24.11.2011 mentioned at SI. No. "A" of paragraph 1 above, that she was not served with the proceedings before the FAA or that she was not served with the order passed by the FAA directing her to provide information till the respondent/querist preferred the appeal before the learned CIC is being raised before this Court for the first time. Pertinently, in her written submissions before the CIC filed prior to the hearing fixed on 25.10.2011 (at pages 115-116 of the record which appears to have been dated as 10.10.2011, but submitted on 24.10.2011), the petitioner did not even whisper about her not having received the notice of the proceedings before the FAA or the order passed by the FAA. I am, therefore, not inclined to permit the petitioner to raise such pleas for the first time in these proceedings. 23. Similar is the position with regard to the order dated 07.02.2012 in CIC/SS/A/2011/000578, mentioned at SI. No. "B" of paragraph 1 above. In fact, the petitioner did not even respond to the show cause notice issued to her to explain her conduct of not responding to the RTI applications in time. Relevant extracts of the order dated 07.02.2012, mentioned at SI. No. "B" of paragraph 1 above, are as under: "2. The Show Cause notice was issued to Ms. Prem Lata under section 20 of the RTI Act for not providing the information to the Appellant and not because she was absent on the last date of hearing before the Commission. Nowhere in her submission Ms. No. "B" of paragraph 1 above, are as under: "2. The Show Cause notice was issued to Ms. Prem Lata under section 20 of the RTI Act for not providing the information to the Appellant and not because she was absent on the last date of hearing before the Commission. Nowhere in her submission Ms. Prem Lata has explained the reasons for not providing the information to the Appellant Mr. Kamal Kishore Arora. In her written submission Ms. Prem Lata has only tired to justify her absence on 29.09.2011 before the Commission. 3, The Commission is not satisfied with the submission of the Ms. Prem Lata as she has not explained the reasons for not providing the information to the Appellant. The 20 (1) of the RTI Act gives power to the CIC to impose penalty upon the CPIO without any reasonable cause, refuses to furnish the information or does not furnish the information in specified time. The Commission is of the opinion that in the absence of reasonable explanation from Ms. Prem Lata, this becomes a fit case for imposing upon her penalty of Rupees 25,000/-." (emphasis supplied) 24. The plea of the petitioner that she, for the first time, learnt of the RTI application only upon service of the show cause notice of the CIC does not appear to be correct. Pertinently, the petitioner responded to the querist on 05.10.2011 (at page 147 of the record) stating that the information is available on the website. However, she did not state that she had learnt of the RTI application for the first time only upon receipt of the show cause notice from the CIC. The petitioner has also not produced any response, filed before the CIC to the show cause notices issued to her, or her written submissions containing any such plea. Similar is the position vis-a-vis the submission of the petitioner that she was not served with the proceedings before the FAA or that she was not served with the order passed by the FAA directing her to provide information till the respondent/querist preferred the appeal before the learned CIC. I am, therefore, not inclined to accept these pleas of the petitioner for the first time in these proceedings. 25. I am, therefore, not inclined to accept these pleas of the petitioner for the first time in these proceedings. 25. The submission of the petitioner that the CIC cannot impose penalty under Section 20(1) of the Act without recording a finding as to the malafides on the part of the CPIO is entirely misconceived and untenable. Section 20 (1) of the Act reads as under: "20. Penalties. - (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." (Emphasis supplied) 26. Therefore for the CIC to impose penalty under Section 20 (1) of the Act it has to be of the opinion that the CPIO has, without any reasonable cause,: (i) refused to receive an application for information; or (ii) not furnished information within the time specified under sub-section (1) of section 7; or (iii) malafidely denied the request for information; or (iv) knowingly given incorrect, incomplete or misleading information; or (v) destroyed information which was the subject of the request; or (vi) obstructed in any manner in furnishing the information. The use of the word "or" repeatedly in section 20 shows that the various situations/contingencies dealt with in section 20 are disjunctive. The use of the word "or" repeatedly in section 20 shows that the various situations/contingencies dealt with in section 20 are disjunctive. The PIO concerned would invite penalties under section 20 of the Act upon the occurrence of any of the contingencies mentioned herein above. A recording that the CPIO has acted malafidely in denying the request for information is not the sole criterion for imposing penalty. The CIC by the impugned order dated 07.02.2012 has imposed penalty since the petitioner has, without any reasonable cause, not furnished the information within the time specified under sub-section (1) of Section 7. 27. For the afore-said reasons, I find no infirmity with the impugned orders. This petition is accordingly dismissed.