CIC: On being queried regarding the reasons for not providing the Appellant his own ACR reports, it was re-iterated that the said information was not available with them - CIC instructed the Respondent to furnish copies of ACR to the Appellant
22 Oct, 2018O R D E R
FACTS:
The Appellant vide his RTI applications sought information on 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. points regarding whether his terminal benefits were paid in time, if not the reasons for the delay and whether any remedial steps were taken for the delay in payment, number of employees retirements in the Division in the last three financial years during 2013 April to August 2016, number of cases in which retirees were relieved without payment of any terminal benefits, number of cases in which full settlement was done on the date of relief and issues related thereto.
The CPIO, vide its letter dated 05.10.2016 provided a point wise response to the Appellant. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 11.11.2016 provided further clarification with regard to point no. 5, 15, 16, 17, 18, 19 and 20 of the RTI application.
HEARING:
Facts emerging during the hearing:
The following were present: Appellant: Mr. B. R. Nair through VC; Respondent: Mr. E.K. Venkatakrishnan, FAA and Marketing Manager, DM, Mr. V. Ramesh, CPIO and Manager (CRM), ADM, and Mr. M. Devadoss, Deemed CPIO and Manager (E& OS), DM through VC
The Appellant reiterated the contents of his RTI application and stated that the desired information on point nos. 2, 3, 4, 5, 10, 11, 13, 14, 15, 18, 19 and 20 of the RTI application was not provided to him. It was explained that majority of the queries raised by him related to delay in settlement of his terminal benefits , lack of transparency in Provident Fund Settlement, ill-treatment meted out to him when relieved from voluntary retirement after meritorious service for 32 years with PA, disclosure of Annual Confidential report, etc. In its reply the Respondent stated that a suitable point wise reply was provided to the Appellant and that all terminal benefits were settled in time without any delay as per the extant guidelines/ rules. On being queried regarding the reasons for not providing the Appellant his own ACR reports and transferring the matter to the concerned department possessing the information, no satisfactory response was provided by the Respondent who re-iterated that the said information was not available with them. It was however, agreed by them to forward the same to the Appellant after procuring the ACRs from the concerned department.
The Commission was in receipt of a written submission from the Respondent dated 27.08.2018, wherein while re-iterating the reply of the CPIO/ FAA, it was stated that the information sought on 07.09.2016 related to his relief on VRS, VRS benefits, etc. It was mentioned that the queries 2, 3, 4, 10, 11, 13 and 14 in the CIC appeal were not mentioned in the First Appeal and these were new queries raised by the Appellant in the CIC hearing stage. Thus, it was submitted to dispose off the instant Appeal. Having heard both the parties and on perusal of the available records, the Commission at the outset observed that as per the provisions of the RTI Act, 2005 only such information which is held and available with the Public Authority can be disclosed.
The Commission referred to the definition of information u/s Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act, 2005 which is reproduced below:
“information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
“(j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........”
In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... “It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”
Furthermore, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. “....Under the RTI Act “information” is defined under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; which provides: “information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.” This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”
7. “....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”
The Commission observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon’ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
“While deciding whether a citizen should or should not get a particular information “which is held by or under the control of any public authority”, the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions.”
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
“6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished.”
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon’ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was:
(i) whether the information sought for by the respondent was provided to him;
(ii) if the same was denied, whether such denial was justified;
(iii) whether any punitive action was required to be taken against the concerned PIO; and
(iv) whether any directions under Section 19(8) were warranted.
In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
A similar view delineating the scope of the Commission’s jurisdiction was also taken by the Hon’ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 0/2017 and CM No. 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2016.
As regards the disclosure of his own ACR to the Appellant, the Commission referred to the judgement of the Hon’ble Supreme Court of India in the decision of Dev Dutt vs Union Of India & Ors on 12 May, 2008, Civil Appeal No. 7631 OF 2002, had held as under
“19. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways :
(1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future
(2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution.
20. Thus it is not only when there is a bench mark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.”
In judgement of the Ld. Single Judge of the Hon’ble High Court of Delhi in R.K. Jain v. Union of India, W.P. 6756 of 2010 dated 08.12.2011 which was affirmed by the Hon’ble Supreme Court of India vide its aforementioned decision it was held as under:
“10. Therefore, except in cases involving overriding public interest, the ACR record of an officer cannot be disclosed to any person other than the officer himself/herself.”
Furthermore, the Hon’ble High Court of Delhi in the matter of THDC India Ltd. vs. R.S. Raturi, W.P. (C) No. 903 dated 08.07.2014 wherein it had been held as under:
12. However, this Court is of the view that the respondent is entitled to the contents of his own ACR after redaction of the names of the reviewing, reporting and accepting officers. In fact, another coordinate Bench of this Court in THDC India Ltd. v. T. Chandra Biswas 199 (2013) DLT 284 has held as under:-
9. While the learned counsel for the respondent has contended before me that the respondent ought to have been supplied with the ACRs for the period 2004 to 2007, the respondent has not assailed that part of the order of the CIC. In my view, while the contention of the respondent has merit, which is that she cannot be denied information with regard to her own ACRs and that information cannot fall in the realm of any of the exclusionary provisions cited before me by the learned counsel for the petitioner i.e. Section 8(1)(d), (e) and (j), there is a procedural impediment, in as much as, there is no petition filed to assail that part of the order passed by the CIC. 9.1. In my view, the right to obtain her own ACRs inheres in the respondent which cannot be denied to the respondent under the provisions of Section 8 (1)(d), (e) and (j) of the RTI Act. The ACRs are meant to inform an employee as to the manner in which he has performed in the given period and the areas which require his attention, so that he may improve his performance qua his work.”
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Respondent to furnish copies of ACR to the Appellant as sought in point no. 18 of the RTI application within a period of 15 days from the date of receipt of this order. For redressal of his grievance, the Appellant is advised to approach an appropriate forum. The Appeals stand disposed with the above direction.
Bimal Julka
Information Commissioner
Citation: Mr. B. R. Nair v. LIC of India in Second Appeal No.:- CIC/LICOI/A/2017/145183-BJ + CIC/LICOI/A/2017/603331-BJ, Date of Decision: 31.08.2018