Respondent claimed to have offered inspection of service files, personal files & promotion files - CIC: Perusal of files revealed that material documents were missing; SCN issued for penalty u/s 20 (1), disciplinary proceedings & compensation u/s 19(8)(b)

Respondent claimed to have offered inspection of complete files i.e. service files, personal files and promotion files - CIC: Perusal of the files revealed that material documents were missing; Show cause notice issued for penalty u/s 20 (1), disciplinary proceedings and compensation u/s 19(8)(b)

O R D E R

1. The information sought in the RTI application dated 15.10.2021 out of which the second appeal dated 05.03.2021 as well as the complaint dated 06.12.2020 arose, is one and the same. Therefore, it is felt desirable to pass a common order in both the cases.

1.1. The issues under consideration arising out of the second appeal dated 05.03.2021 include non-receipt of the following information sought by the appellant through the RTI application dated 15.10.2020and first appeal dated 06.12.2020:-

“With reference to the letter no. HOHRD/APAR/2019-20/11511 dated 18.08.2020, issued by the DGM (HRD) and marked as Annexure I. The following information may be provided:

(i) Inspection of complete files & file notings, office notes, opinions, comments, views, decisions etc. relied by the DGM, before issuing Annexure I.

(ii) (a) Certified copy of the Office Order issued by competent authority for constituting a committee of another set of officers, namely Sh. Rajiv Rawat, Sh. Govind N Dongre & Sh. Hari shankar as reporting, reviewing and accepting authority, as mentioned in para 1.3.1 of Annexure I.

(b) Certified copy of the Office Order issued by competent authority for constituting a committee of another set of officers, namely Sh. Milind Buchke, Sh. Dinesh Kumar Goyal & Sh. Rajiv Rawat as reporting, reviewing and accepting authority, as mentioned in para 1.3.2 of Annexure I.

(c) Certified copy of the Office Order issued by competent authority for constituting a committee of another set of officers, namely Ms. Harvinder Sachdev, Sh. Govind N Dongra & Sh. Harishankar as reporting, reviewing and accepting authority as mentioned in para 1.3.3 of Annexure I.

(iii) Official address, email address & official mobile number of outside expert, Sh. Pramod Kumar Sharma & Sh. Rakesh Kumar who were part of promotion process for SMGS-IV to SMGS-V for the year 2020-21.

(iv) Inspection of the file of the appellant presented before the Interview Committee constituted for promotion process for SMGS-IV to SMGS-V for the year 2020-21 and opinion of each committee member as on 05.02.2020 & 20.02.2020 respectively.

(v) Chronological movement of present RTI application and related file notings.”

1.2. The issues under consideration i.e. the reliefs sought by the appellant/complainant in the complaint dated 06.12.2020 due to alleged non-supply of information vide RTI application dated 15.10.2020are as under:-

(i) “To kindly hear and adjudicate the present complaint on priority as the requested records were related to vital service records. Routine hearing shall delay justice to the applicant/complainant facing harassment since last several years in the hands of respondent officials;

(ii) To kindly summon the requested records for perusal of the Hon’ble Commission;

(iii) To kindly initiate an enquiry against the CPIO for refusing the information without any justified grounds;

(iv) To kindly invoke subsections 1 & 2 of section 20 of the Act against the CPIO, Shri Bharat Bhushan for refusing the information. Besides, inviting for inspection and not providing the complete original records;

(v) To kindly invoke subsections 1 & 2 of section 20 of the Act against the deemed CPIO, Sh. Subhash Ch. Sagar and Ms. Deepa for their discourteous and harassment approach towards the applicant/complainant;

(vi) To kindly direct the respondent bank to pay a compensation of Rs. 1,00,000/- (Rs. One Lac) towards the cost of travelling expenses from Indore to Delhi and back, loss of paid leave and for infringement of her fundamental rights enshrined under the RTI Act;

(vii) Any other measure, the Commission deems fit and proper for protections of fundamental rights of citizens and avoid harassment of information seekers”.

2. Succinctly facts of the case are that the appellant/complainant filed application dated 15.10.2020 under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), Punjab & Sind Bank, New Delhi, seeking the information as laid out in para 1.1 above. The CPIO vide letter dated 13.11.2020 replied to the appellant/complainant. Aggrieved by the same, the appellant/complainant filed first appeal dated 06.12.2020. The First Appellate Authority (FAA) disposed of the first appeal vide order dated 05.01.2021. Aggrieved by the First Appellate Authority order, the appellant/complainant filed complaint dated 06.12.2020 and second appeal dated 05.03.2021, respectively, before the Commission which are under consideration.

3. The appellant/complainant has filed the instant complaint dated 06.12.2020 and second appeal dated 05.03.2021inter alia on the following grounds:

(i) “As advised by the then CPIO, Shri Bharat Bhushan, the appellant/complainant travelled all the way from Indore to New Delhi during difficult times of COVID pandemic, however, the relevant files were not produced for inspection;

(ii) On approaching the CPIO on 25.11.2020, she was made to run from one desk to another, with a bad motive to tire her and consume precious time;

(iii) They presented some loose photocopied papers without any page numbering and proper index; original and complete file was not made available for inspections;

(iv) The CPIO Shri Bharat Bhushan ensured that the certified copies of the loose papers (144 pages) selected by her during inspections, would be provided, however, the same were not provided even after the lapse of more than 50 days.”

The appellant/complainant requested the Commission to direct the CPIO to provide the complete information and take necessary action as per provisions under section 19 (8) (b), Section 20 (1) & (2) of the RTI Act.

4. The CPIO replied vide letters dated 13.11.2020 and the same is reproduced as under:-

“(i) &(ii) (a) to (c) You can visit Punjab & Sind Bank, Head Office RTI Cell, 4^th Floor, 21, Rajendra Place, New Delhi – 110008 on 25.11.2020 (Wednesday) at 11:30 AM for one hour only.

(iii) The information pertains to third party, hence denied as per Section 8 (1) (j) of RTI Act, 2005.

(iv) You can visit Punjab & Sind Bank, Head Office RTI Cell, 4th Floor, 21, Rajendra Place, New Delhi – 110008 on 25.11.2020 (Wednesday) at 11:30 AM for one hour only.

(v) Question not clear.”

The FAA vide order dated 05.01.2021upheld the reply of the CPIO.

Hearing on 27.09.2022:

4.1. The appellant/complainant and on behalf of the respondent Mr. Subhash Chand Sagar, CPIO (AGM), Mr. Akshay Kumar Dewal, Sr. Manager and Ms. Deepa Babar, Punjab and Sind Bank, Delhi attended the hearing in person.

4.2. The Commission has passed the following directions on 18.10.2022:

“6. The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of records, observed that the complainant/appellant alleged that the file which was provided by the CPIO in respect from HRD Division, was not the original file. According to her, it contained loose papers without page numbering. The contention of the CPIO was that the file was placed for inspection, as provided by the HR Department.

However, the complainant contended that there were certain pages including the opinion of the Counsel which was not complete and signed, also, some of the pages were not legible. It was evident that the information was not provided as sought by the complainant/appellant nor the original file was made available for inspection. In view of the above, Mr. Subhash Chandra Sagar, present CPIO and, Mr. Kamesh Sethi, the Head of the HR Department, considering him as Deemed CPIO, are show caused as to why penalty under section 20 (1) of the RTI Act may not be imposed upon each of them for not following the mandate of the RTI Act, and for not providing the information to the complainant/appellant. The present CPIO is given the responsibility to serve a copy of this order upon Mr. Kamesh Sethi and secure his written explanations as well as his attendance on the next date of hearing. All written submissions may be uploaded on the Commission’s web portal within 21 days. In the meantime, the respondent including the CPIO and Head of the HR Department are directed to bring the original personal file including the service book of the complainant/appellant, on the next date of hearing, for perusal of the Commission. Accordingly, the matters are adjourned.”

Hearing on 12.01.2023:

4.3. The appellant/complainant and her Counsel Advocate Mr. Sajal Manchanda; and on behalf of the respondent Mr. Subhash Chand Sagar, CPIO (AGM), Mr. Akshay Kumar Dewal, Sr. Manager, Ms. Deepa Babar, Punjab and Sind Bank, Delhi, Advocate Nipun Sharma, Ms. Shweta Bhandari, Chief Manager, attended the hearing in person.

4.4. The Commission has passed the following directions on 12.01.2023:

“The matters were listed for hearing before the Commission today. Both the parties were present in-person. However, the respondent expressed their inability to furnish written explanations in response to the show cause notice issued by the Commission vide order dated 18.10.2022 and failed to produce the files for inspection, as per the directions of the Commission’s order dated 18.10.2022 read with the order of Delhi High Court passed on 20.12.2022. The respondent sought adjournment and the appellant/complainant appeared and objected to the adjournment sought by the respondent, inter alia, on the grounds that she had come along with her Counsel and, besides inconvenience, she had to incur expenses including Counsel fees. Non-submission of explanations to the show cause notice and non-compliance of the directions contained in Commission’s order dated 18.10.2022, is viewed seriously. The respondents are again directed to show cause as to why penalty as per section 20 (1) of the RTI Act may not be imposed upon them, and as to why the Public Authority may not be directed to compensate the appellant/complainant as per section 19 (8) (b) of the RTI Act. A final opportunity may be given to the respondent to attend the hearing tomorrow i.e. on 13.01.2023 at 10:30 a.m. in Room No. 313, CIC, Bhawan, with the relevant files for inspection. Accordingly, the matters are adjourned.”

Hearing on 13.01.2023:

4.5. The appellant/complainant and her Counsel Advocate Mr. Sajal Manchanda; and on behalf of the respondent Mr. Subhash Chand Sagar, CPIO (AGM), Mr. Akshay Kumar Dewal, Sr. Manager, Ms. Deepa Babar, Punjab and Sind Bank, Delhi, Advocate Nipun Sharma, Ms. Shweta Bhandari, Chief Manager, attended the hearing in person.

4.6. The appellant/complainant inter alia submitted that the respondent had not furnished the copies of file notings, office notes, opinions, comments, views, decisions etc. in respect of the communication dated 18.08.2020 sent to her by the DGM (HRD), as sought in point no. (i) of the RTI applications, the documents pertaining to her promotion file sought in remaining points in the RTI application. She further contended that the aforementioned communication was sent to her by the GM, HRD, as disposal of her representations dated 24.04.2020 and 29.04.2020 regarding APAR for the year 2018, 2019 & IPAR as on 31.12.2019 and promotion process for the year 2019 and 2020. In that communication dated 18.08.2020, the appellant/complainant was intimated that her representations dated 24.04.2020 and 29.04.2020 were disposed of by a Two-Member Committee. The Two-Member Committee observed that in view of the complainant’s allegations against Shri V.K. Mehrotra, Shri J. K. Nayak and Dr. Fareed Ahmed and on the basis of LCC report (Local Complaints Committee) under POSH (Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013, the APAR 2018 reviewed/assessed/accepted by any of the aforementioned three officers could not be considered as fair and impartial. The Committee further observed that the APAR for the year 2018, 2019 and IPAR for December 2019 were required to be reconsidered and reviewed. Having noted so, the Committee also observed that the APAR for the year 2018 had already been reviewed/reconsidered on 30.04.2019 by another set of three Officers (Shri Rajiv Rawat, Shri Govind Dongre and Shri S. Harishankar), even prior to the judgment and order dated 25.02.2020 passed by the Supreme Court. Similarly, the complainant’s IPAR for December 2019 had also been reviewed/reconsidered by another set of three Officers (Shri Milind Buchke, Shri Dinesh Kumar Goyal and Shri Rajiv Rawat) on 31.03.2020. The appellant/complainant pleaded that neither of the aforementioned reviewed/ reconsidered APARs (revised on 30.04.2019 as well as 31.03.2020) were communicated to her and the same were only brought to her notice after she had filed representations dated 24.04.2020 and 29.04.2020. Therefore, the complainant/appellant insisted upon the file notings, office notes, comments, etc. relating to the communication dated 18.08.2020 wherein the Two-Member Committee decided her representations, for the sake of transparency and accountability. She argued that instead of producing the files for inspections or providing the requisite information, the respondent had challenged the interim order dated 18.10.2022 passed by the Commission, through W.P. (C) 17160/2022 & CM APPLS. 54556/2022, 545557/2022 wherein the High Court vide order dated 20.12.2022 directed as under:

(i) “One of the senior officials of the bank who is familiar with the personal files, service files and the promotion file of the Respondent shall appear before the CIC along with one of the junior counsels i.e. colleague of Mr. Gautam on the date fixed by the CIC;

(ii) The Respondent is also permitted to have her counsel present for the purpose of the inspection. Inspection of all the three files shall be given to the Respondent in the presence of the Bank’s counsel as well as the Respondent’s counsel.

(iii) The Respondent shall flag all the documents, copies of which are required by her. The said copies shall be supplied to the Respondent within a period of three working days from the date of said inspection.

5. Upon information and documents as per this order being supplied, the appeal before the CIC shall stand automatically disposed of.”

The appellant/complainant inter alia argued that the respondent had failed to produce complete records on 12.01.2023 and 13.01.2023.She further stated that the respondent only produced the personal file (without complete papers) and Service file and had failed to produce the promotion file during inspection before the Commission.

Therefore, in the absence of the complete records, it was not possible for her to identify the records and obtain certified copies of the same, as per the directions of the High Court. She pointed out that the documents in her personal file were not numbered.

Further, she pleaded that the following documents were not available in her personal file as well as service files:

A. Personal File

i. Transfer order and notes for December 2017, which was challenged and subsequently culminated into the Supreme Court judgment dated 25.02.2020 in Punjab And Sind Bank vs Durgesh Kuwar [CA 1809/2020];

ii. All the communications made with the bank after the complaint regarding sexual harassment and corruption at P.Y. Road, Indore, made till date. The Bank had submitted enquiry reports in Supreme Court but those reports were not filed in the files. (Personal or Service File).

iii. Appraisals from 2017 onwards not presented for inspection

iv. Documents, file notings, relating to her pending representations regarding non-payments of salary for 13 months, withholding of increment for 1 years, pending TA bills, re-imbursement of her legal expenses, etc. pending at HO, HRD.

B. Promotion Files (original file not produced for inspection)

4.7. The respondent while defending their case submitted that they had produced the personal file as well as service file containing all documents as available under their custody. They further contended that the promotion file was not maintained separately for any individual/individuals and the documents for entire promotion process for a particular year, for all the candidates in participation were compiled in a single file.

Therefore, they pleaded that production of the promotion file, even before the Commission, might cause unwarranted invasion of the privacy of individuals containing third parties’ data and they had brought the relevant extract from the promotion file concerning the appellant/complainant’s participation in the process of Promotion of Officers from SMGS IV to SMGS V in general cadre and Promotion of Officers from SMGS IV (C.M.) to SMGS V (AGM). The counsel of the respondent defended the non- production of promotion file and argued that as per the instructions from the higher authorities of the bank, they could not provide the same in sealed cover for even the perusal of the Commission.

Interim order dated 20.01.2023

4.8 The Commission has passed the following observations and directions on 20.01.2023:

“6. The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of records, observed that the respondent advertently refused to produce the records i.e. complete and original Personal File, Service File and Promotion file as per the directions of the High Court vide order dated 20.12.2022 read with the Commission’s orders dated 18.10.2022 and 12.01.2023.Perusal of the Personal File of Ms. Durgesh Kuwar produced by the respondent on 13.01.2023 revealed that the same was not numbered which corroborates her point mentioned in the appeal. During the course of hearing, when the same was pointed out, the representative of the bank did page numbering of the correspondence portion of the personal file before the Commission, at the beginning of inspection. However, there was no noting portion in the files. Further, the Service File was also produced before the Commission. The respondent refused to produce the promotion file, even for the perusal of Commission, and placed on record their strong objections that the file contained data of third parties. The appellant/complainant inspected the Personal file and Service file and submitted before the Commission that the documents in question originally sought in the RTI applications i.e. with respect to file of the appellant/complainant presented before the Interview Committee constituted for promotion process for SMGS-IV to SMGS-V for the year 2020-21 and opinion of each committee member as on 05.02.2020 & 20.02.2020 respectively, file notings with respect to communication dated 18.08.2020 sent by GM, HRD, were not present in either of the files. Upon inspection, the complainant submitted before the Commission that the files did not contain the documents sought by her in the RTI application and, that being so, she was unable to identify or obtain certified copies of the same. It is crucial to note that the respondent furnished photocopies of extracts from the so-called promotion file in which certain lists of candidates were enclosed and all entries from top to bottom had been redacted. Moreover, the pages did not indicate the process or category for which the list was prepared and all entries in remaining lists containing marks for GD marks as well as Interview for promotion process in for SMGS IV (C.M.) to SMGS V (AGM) had been redacted. The original files not having been produced for inspection and the information not having been supplied to the appellant/complainant in spite of several chances, it is evident that the respondent failed to comply with the directions of the High Court/Commission. It may not be out of place to mention that the promotion file or original records which have been withheld are under the custody of GM, HRD, whose orders are required for making available the records for perusal of the Commission or subsequent inspection by the appellant/complainant, if Commission so desired. It was not the case of the respondent that the inspection of the records which involved secret documents of third persons, as per their claim, and processes of the bank could not be revealed to the appellant/complainant, but they even refused to disclose or share the information in sealed cover to the Commission. In view of the above, the following directions are given:

 Mr. Krishna Rao, General Manager, Human Resource Department, being the custodian of the files may be considered as Deemed CPIO, Mr. Kamesh Sethi, the then Head of the HR Department, considering him as Deemed CPIO, Mr. Bharat Bhushan, the then CPIO and Mr. Subhash Chandra Sagar, present CPIO are show caused as to why:

a. a penalty under the provisions of section 20 (1) of the RTI Act may not be imposed upon each of them, for not allowing access of the information even to the Commission in sealed cover;

b. Compensation to the Complainant as per her claim, under the provisions of section 19 (8) (b) of the RTI Act may not be awarded.

The present CPIO is given the responsibility to serve a copy of this order upon the aforementioned officers and secure their written explanations as well as their attendance on the next date of hearing. All written submissions may be uploaded on the Commission’s web portal within 21 days.”

Hearing on 31.5.2023

5. The appellant and on behalf of the respondent Shri Sanjeev Kumar Suman, Assistant General Manager and CPIO, Shri Akshay Kumar Dewal, Senior Manager and Shri Subhash Chand Sagar, Assistant General Manager, Punjab & Sind Bank, Delhi, attended the hearing in person.

5.1 The appellant inter alia submitted that complete files were not produced before the Commission for facilitating inspection as directed by the Hon’ble High Court of Delhi vide order dated 20.12.2022. She submitted that only personal and service files were produced by the respondent and that too the complete papers were not there in the files.

Besides, she contended that promotion files related to her promotion were not made available for inspection despite clear directions of the Hon’ble Delhi High Court as well as of the Commission. She contended that she had pointed out certain documents in the hearing held before the Commission on 13.01.2023 which was not available in the files. She contended that the respondent had defied the orders of the Commission as well as of the High Court of Delhi. Therefore, she requested the Commission to impose maximum penalty on the concerned CPIOs as well as responsible officers.

5.2 The respondent while defending their case inter alia submitted that after receipt of RTI application, the then CPIO had facilitated inspection of the records related to the information sought in her RTI application on 25.11.2020 and provided certified copies of 144 pages of documents. Thereafter, the appellant filed first appeal which was dismissed by the FAA upholding the CPIO’s reply, then the appellant approached the Commission in second appeal and complaint. They further submitted that the Commission had passed an interim order dated 18.10.2022 wherein show cause notice was issued to the CPIO, and Mr. Kamlesh Sethi (Deemed CPIO), the then GM under section 20 (1) of the RTI Act, which was challenged by the bank before the Hon’ble High Court of Delhi by way of a W.P. No. 17160 of 2022. They contended that the W.P. No. 17160 of 2022 was disposed of by Hon'ble Delhi High Court by order dated 20.12.2022 by modifying the order dated 18.10.2022 passed by CIC by giving directions as contained in the order dated 20.12.2022.The respondent argued that they presumed that the said order dated 18.10.2022 of the Commission was set aside. They informed that CPIO along with the other concerned officials of the Bank attended the hearing on 13.01.2023 and also produced files as directed by Hon'ble Delhi High Court before CIC on 13.01.2023. They stated that the personal file/ service file and promotion file, which were produced before CIC on 13.01.2023, after inspection by the applicant /complainant, were kept by CIC on 13.01.2023 for its own perusal. They stated that photocopies of the documents from personal file or service files of the appellant were offered to the appellant but she refused to take the same. The respondent informed that as per the practice in the Bank, no individual files in respect promotion of a candidates was maintained rather a combined Promotion Process File containing data of all the candidates who had participated in the promotion process was maintained for each process, the CPIO and other officials of the bank during the course of hearing held on 16.01.2023 had produced photocopy of the promotion process file for the year 2019-20 &2020-21 in respect of the promotion process of the officers from Scale IV to Scale V and produced the said file by Blackening the data of other third party candidates before the Hon’ble Commission. Accordingly, they had submitted that relevant information was provided to the appellant and they had also produced the relevant files as directed by this Hon'ble Commission as well as the Hon'ble Delhi High Court through CPIO and other officials of the Bank during the course of hearings held on 13.01.2023 and 16.01.2023.

6. The Commission after adverting to the facts and circumstances of the case hearing both the parties and perusal of records, observed that the respondent had failed to produce the complete files for inspection of the appellant as directed by the Hon’ble High court vide order dated 20.12.2022 as well as the Commission’s orders dated 18.10.2022 and 20.01.2023. The appellant during the course of hearing submitted that promotion files which were very important for her was not produced for inspection. Besides, certain documents were not available in the personal files and the service files of the appellant which were pointed out by her during the hearing held on 13.01.2023 and as mentioned in the aforesaid para no.4.6. However, the respondent had neither facilitated inspection of those documents nor provided certified copies of the same to the appellant till the date of hearing. Though, the respondent claimed that they had offered inspection of complete files i.e. service files, personal files and promotion files. Perusal of the files/documents which were produced by the respondent for inspection before the Commission revealed that material documents were missing. It was not the case that the appellant had sought any third party information from the respondent, the documents sought by her related to herself. It may be noted that original promotion file was not produced for inspection of the appellant. Thus, it was clear violation of the order of the Hon’ble Delhi High Court passed on 20.12.2022 as well as the Commission’s orders 18.10.2022 and 20.01.2023. However, in the interest of justice, the Commission gives final opportunity to the respondent to comply with directions given in the preceding paragraph. Accordingly, the Registry is directed to issue a fresh show cause notices to Mr. Krishna Rao, General Manager, HRD, as deemed CPIO as he was the custodian of the files, Mr. Kamesh Sethi, the then Head of the HR Department, considering him as Deemed CPIO, Mr. Bharat Bhushan, the then CPIO and Mr. Subhash Chandra Sagar, the CPIO as on 20.01.2023 and Shri Sanjeev Kumar Suman, the present CPIO are show caused as to why:

a. a penalty under the provisions of section 20 (1) of the RTI Act may not be imposed upon each of them, for not allowing access of the information to the appellant and even to the Commission in sealed cover;

b. disciplinary proceedings may not be recommended.

c. compensation to the Complainant/appellant as per her claim, under the provisions of section 19 (8) (b) of the RTI Act may not be awarded.

The present CPIO is given the responsibility to serve a copy of this order upon the aforementioned officers and secure their written explanations as well as their attendance on the next date of hearing. All written submissions may be uploaded on the Commission’s web portal within 21 days.

6.1. Further, the respondent is directed to facilitate proper inspection of complete records including the personal, service and promotion files of the appellant as directed by the Hon’ble Delhi High Court in W.P. (C) 17160/2022 & CM APPLS. 54556/2022, 545557/2022 vide order dated 20.12.2022. With the above observations and directions, matters are adjourned.

Copy of the decision be provided free of cost to the parties.

Sd/-

(Suresh Chandra)

Information Commissioner

Citation: Durgesh Kuwar v. Punjab & Sind Bank, CIC/PASBK/C/2020/695220 and CIC/PASBK/A/2021/608655; 05.09.2023