J.P. Agrawal vs Union Of India & Ors.
2011 Latest Caselaw 3735 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 4th August, 2011
+                             W.P.(C) 7232/2009

         J.P. AGRAWAL                                          ..... Petitioner
                            Through:      Mr. Anurag Goel, Adv.

                             versus
         UNION OF INDIA & ORS.                   ..... Respondents
                      Through: Mr. Rishi Dewan, Adv. for R-4.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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?

RAJIV SAHAI ENDLAW, J.

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 non-disclosure. 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.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 4, 2011 pp (corrected and released on 2 nd September, 2011)