Here is the decision In the Central Information Commission At New Delhi File No: CIC/AD/A/2010/000144 Date (s) of Hearing: January 17, 2011 Date of decision : Parties: Appellant Shri Mahendra Kumar Gupta B205, Plot No.11 Sahara, Sector6 Dwarka New Delhi 110 075 Represented by: Appellant in person Respondent(s) CPIO, Prasar Bharati News Services Division All India Radio New Delhi Represented by: Ms. Gita Ram, Sr.Admin Officer & CPIO; Mr.S.Mathias, Addnl. Dir. General (News) Information Commissioner : Mrs. Annapurna Dixit ______________________________________________________________________ Decision Notice As given in the decision In the Central Information Commission At New Delhi File No: CIC/AD/A/2010/000144 ORDER 1. The instant case was heard once again by the Commission on 17.01.2011 after the following hearings in the case: Adjunct to the captioned CIC Order dated 5.4.10 1. The decision in the captioned case is reproduced below: '....5. The Commission received a rejoinder dt.5.4.10 from Shri D.K. Das, CPIO stating that the virtue of his appointment to the post. In compliance with CIC Order No.CIC/AD/A/2009/00513 dt.26.5.09, the Appellant was allowed to inspect the records and copies of documents containing 44 pages were provided vide letter dt.4.9.09. In compliance with another CIC Decision No. CIC/AD/ C/2009/ 000937 dt.11.11.09, the Appellant was provided with an affidavit on 9.12.09. In compliance with still another CIC Decision No.CIC/AD/A/2009/00446 dt.27.4.09, the information against points (i), (ii), (iv) and (v) were provided to the Appellant and similar information was provided to him earlier also. Keeping in view the decision of the Division Bench of CIC communicated vide No.CIC/AT/A/2006/00045 dt.21.4.06, the Appellant was asked to follow the procedure only and there was no denial of information as contended by the Appellant. 6. The Commission after hearing the submissions of both sides, directs the the powers vested on it under Section 18(2) of the missing file of the Appellant, fix the responsibility and take appropriate disciplinary action against the official responsible for losing the file. A copy of the enquiry report may be provided to the Appellant under intimation to the Commission. In the event the file remains untraceable, an affidavit to be provided to the Commission with a copy to the Appellant affirming the loss of the file and giving reasons for its nonavailability. In the even the file is located, complete information to be provided to the Appellant, free of cost. 7. The entire exercise should be completed by 10.5.10 and the Appellant to submit a compliance report to the Commission by 15.5.10.' Adjunct to CIC Order dated 28.5.10 2. Subsequently, a communication dated 6/10.05.2010 purporting to be the Report of Inquiry was received by this Commission from the Respondent. It is noted from the very outset in the said communication dated 6/10.05.2010 that the Respondent referred to another 08.07.2009, annexed alongwith the said communication as Annexure A II, which is not the subject matter in the instant case, since the instant case refers to a six pointed 23.07.2009. Furthermore, the Respondent has stated in the said Report of Inquiry dated 6/10.05.2010 that the incidentally refers to the instant case at hand. As has been noted earlier in the decision dated 05.04.2010 also, the said response dated 28.08.2009 states that the information as sought by the Appellant was not readily traceable except a note dated 02.09.2008 communicated by the Officer supervising the casual engagement. Among further submissions, the Respondent stated that information supplied to the Appellant included a note dated 08.04.2008 from the Reporting Unit and a note dated 02.09.2008 from the Jt. Director (NR). While the Reporting Unit in its note dated 08.04.2008 simply stated that the Appellant may not be put on duty in the Reporting Unit in future, the note dated 02.09.2008 from the Jt. Director elaborated that the Appellant did not fulfill their requirements, did not operate the computer properly and was found unsuitable for the job. It is observed from the note dated 02.09.2008 that the Respondent inter alia questioned the bonafide of the Appellant without substantiating such allegation. 3. The Respondent while moving ahead in his submissions states that the appointment of the Appellant was in the category of casual steno and the nature of records pertaining to the steno therefore did not fall under the classified B category, which are reviewed every ten years nor was the retention period of such records pertaining to casual staff prescribed as per any Rules/Regulations/Manual. The Respondent contended that because of the aforementioned reasons, the CPIO had no scope either to declare that the file remains untraceable or to affirm the loss of the file giving reasons for such loss of file. 4. The response of the CPIO on the subject does not seem adequate and in fact rather evasive in nature. Firstly, the denial of information against the the provisions as specified under Section 8 (1) of the the CPIO in the response dated 28.08.2009 and the instant submission dated 06/10.05.2010 are inconsistent in as much as, while rejecting the contended the information to be untraceable while he has submitted in the recent communication dated 06/10.05.2010 that he is not in a position to declare that the file remains untraceable as on date. In addition, even the onus of inability of fixation of the responsibility in respect of the custodian of information has also been passed upon the Appellant. Thus information as sought by the Appellant only against point (b) and (f) of his been partially provided so far. The basis of the note dated 08.04.2008 and 02.09.2008 have nowhere been explained. Even if the contention of the Respondent with respect to the Preservation of Records is accepted, it cannot be the case of the Respondent that notes detrimental to the career of any employee/staff can be issued without adequate reasons in a Public office. Therefore, the contention that no records exist pertaining to the basis of issuance of such notes, cannot be justified nor is it found acceptable. It is also observed that despite specific order of the Commission, the Respondent has not produced any affidavit explaining the cause of non furnishing of the Information. The Report of Inquiry furnished by the Respondent therefore is clearly inadequate and vague and not satisfactory. Last and final opportunity is therefore granted to the Respondent to either provide the available information to the Appellant with respect to his explaining the exact cause of inability in tracing the required information. Compliance of this order to be submitted/reported before the Commission by on the part of the Respondent, to comply with the instant order within the stipulated period mentioned hereinabove, the Commission shall be constrained to pass appropriate orders as per law. Adjunct to CIC order dated 27.08.2010 6. During the hearing, the Complainant submitted that in response to another the information being sought pertained to period post 2007 i.e. after completion of shifting. The Respondents, however, stated that the the GNR unit. With regard to the Complainant's complaint that service records were not provided, the Respondents submitted that there is no practice of preserving service records for the casual stenographers more than around 4 months and that no preservation period has been specifically mentioned in the schedule for preservation of records. Hence it can only be assumed that the records have been weeded out . As there is no practice of recording weeding out dates of records of casual stenographers, no such record exists, as already pointed out earlier. The Complainant, however, maintained that service and pay records ought to be maintained as per rules. 7. The Commission after hearing the submissions of both sides, directs the with regard to the missing records ad to furnish a copy of the FIR to the Appellant. The also directed to submit an affidavit to the Commission with a copy to the Appellant stating the facts as they exist including the fact that the files are untraceable and that in the absence of any records of them having been weeded out, they can be assumed to be missing. The practice being followed regard to the preservation of records relating to casual employees may also be mentioned in the affidavit. The should not be imposed upon him for providing wrong reasons for the delay in furnishing information. The The containing the showcause notice to the to reach the Commission by 8. The information including the affidavit and copy of FIR to be provided by 27.9.10 and the Appellant to submit a compliance report to the Commission by 3.10.10. 2. Along with a covering letter dated 27.09.2010, Mr. D.K. Das, Deputy Director, Administration cum CPIO furnished to the Commission a notarized affidavit of the same date along with a copy of the FIR dated 21.09.2010. The CPIO reiterated his contentions from the submissions that all casual assignees are engaged on the basis of authorization conveyed vide NSD, dated Artist Contract Form. The findings of the Contract signing authority on behalf of the Prasar Bharati in the note dated 02.09.2008 has been mentioned indicating that the Applicant is not fit for casual engagement and that casual engagement is not a matter of right. He further stated no record/file is maintained for correspondence/discontinuation etc. of casual assignees and only one note from contract signing authority is accepted as the decision. As for the showcause notice issued to the concerned officers, the CPIO stated that the concerned officers have either been retired or have been transferred and that the reason has also been recorded in the affidavit. Hence no communication was sent on 30.09.2010. 3. The Commission received an application dated 03.10.2010 reporting non compliance of CIC order/s from the Appellant. He requested for an early hearing pointing out that instead of a copy of the FIR, a letter addressed to the Officerincharge PS of the not clear whether the letter has actually been dispatched to the police station or not since there is no proof of its delivery. In fact such contention of the Respondent on affidavit has been alleged to be resulting in perjury by the Appellant. The information given in the letter as pointed out by the Appellant referred to a period before 2007 whereas information has been sought for a different period, i.e. after completion of shifting. Also the practice being followed with regard to the preservation of records relating to casual employees has not been mentioned in the affidavit. It has also been alleged in the complaint that extraneous and irrelevant comments had been made in the affidavit to delay the decision on the show cause notice in an attempt to deviate attention from the main issue. These comments were highlighted in the complaint. This was followed by another communication dated 30.10.2010 from the Appellant wherein a table of events was submitted. 4. The Commission vide its notice dated 08.11.2010 directed the of the FIR lodged with the police to the Appellant and also sought an explanation as to why the Commission's decision has not been complied with. 5. The Commission received a letter from the Sr. Admin Officer cum APIO dated 23.11.10 stating that the so called letter dated 21.09.2010, as described by the Appellant, was actually the FIR reporting to the police station about the loss of files and requesting them to investigate into the matter. He contended that the impression of the seal marked by the police authorities when the FIR was photocopied became so faint and "not clear in the Xerox copy" that it gave an impression of just being a letter. He further maintained that the Commission's order was complied with in letter and spirit. The APIO also enclosed a copy of another FIR lodged by Mr. D.K. Das, dated 25.11.2010 the FIR for the perusal of the Commission showing the year of occurrence of offence as 2000. 6. The Commission vide its notice dated 06.01.2011 directed both parties to appear for another hearing of the Appeal filed by the Appellant with all the relevant files and documents on 17.01.2011. Decision 7. During the hearing, the Appellant's written submission dated 17.01.2011 was taken on record. In his submission, the Appellant pointed out once again the following deficiencies with regard to compliance with the Commission's decision by the Public Authority: a) failure to mention in the affidavit "practice being followed with regard to the preservation of records related to casual employees. b) The CPIO failed to record the impediment in sending notices to 3 officers who had retired and the one who has been transferred. c) The FIR pertained to the period before 2007 whereas the Commission had clearly mentioned in its orders from time to time that the cause of action arose post2007 i.e, admittedly after completion of shifting. d) In the affidavit dated 27.09.2010 incorrect information has been given about the FIR being enclosed alongwith the affidavit because documents submitted by the Public Authority alongwith submission dated 17.01.2011 reveal that the FIR was lodged on 25.11.2010. Also the Commission had ordered that FIR should be lodged by 30.09.2010. Hence it has been pointed out by the Appellant that there is a clear violation of the Commission's order. 8. Careful examination of the facts at hand coupled with the contentions of the parties in this case indicate that some vital issues which arose in this case need to be addressed and duly adjudicated upon. First of all, the submissions of the Respondent with respect to the FIR filed are found self contradictory and it is not clear as to whether the Public Authority refers to the letter dated 21.09.2010 as the FIR or relies on the copy of FIR dated 25.11.2010 (mentioned in the 3rd paragraph of the CPIO's submission dated 17.01.2011 as 05.11.2010). Secondly, it is also not clear as to why in the letter (purported to be the FIR) dated 21.09.2010, the CPIO has sought information about records pertaining to the period of 2002 whereas the entire dispute pertains to missing information pertaining to the period of 2007 (the period when admittedly the shifting took place). Thirdly, it is also noted that extraneous matters have been included in the affidavit which have no bearing or relevance to the directions as given by the Commission. Furthermore, it is also noted that no Show cause notice has so far been issued to the officers responsible for the lapse and delay in action, who had not retired by the dead line even though some had only been transferred. It is even more surprising to note that the CPIO, Sh. D K Das, in employment at the relevant point of time, did not even bother to respond to the Show Cause issued by the Commission by order dated 27.08.2010. In the written submissions, the Appellant has also drawn the attention of the Commission to the fact that despite clear directions from the Commission in the paragraph 7 of the order dated 27.08.2010 to submit the FIR by on 25.11.2010. The FIR dated 25.11.2010 also reveals that the date of occurrence of the cause of action was 22.09.2010 whereas the submissions about non traceability of the file have been made from a much earlier date. The submissions of the CPIO in the affidavit dated 27.09.2010 are therefore found to be in glaringly contradictory to the earlier submissions. Such acts/omissions result in defeating the very purpose of swearing on Affidavit because the sanctity of an Affidavit lies in the truth and correctness of the words therein. 9. However, the Commission in the light of the foregoing facts and submissions of the case, directs the CPIO to submit a fresh affidavit giving the exact and correct information as already directed by the Commission by the earlier order dated 27.08.2010. The Commission further directs that a fresh and appropriate FIR to be filed again for the loss of files/documents containing the relevant information pertaining to the period post 2007 as sought by the Appellant. Moreover, considering the fact that the CPIO's acts/omissions were negligent enough to have caused delay and deprivation of the fundamental right to information to the Appellant, the Commission directs the CPIO to pay a sum of Rs. 7,000/as Compensation for the detriment/mental harassment suffered by the Appellant. In view of the fact that the concerned officer/s of the Public Authority have already retired, therefore, no penalty can be imposed on the concerned retired officers under the Section 18(2) of the warnings to all the staff, who are found even indirectly connected with this case about the need for ensuring strict compliance with the Commission's orders, under intimation to the Appellant. All information to be provided by 20.3.2011 as also the compensation directed by the Commission. 10. The appeal is accordingly disposed of. ( Information Commissioner Authenticated true copy: (G.Subramanian) Deputy Registrar --- On Sun, 17/4/11, binu peter <binupeterdelhi@yahoo.com> wrote:
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Sunday, April 17, 2011
Re: [HumJanenge] Re: DISCLOSING LEGAL ADVICE RECEIVED BY CIC
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