Two RTI applications having been filed on the same date about one person namely Mr. Srinivas M V and in the name of another person Mr. Srinivas elicited different responses - CIC: The view taken by the PIO was not implausible; No penalty on PIO
29 May, 2020O R D E R
(12.03.2020)
The issue under consideration i.e. relief sought by the complainant in his complaint dated 03.08.2016 (diarised in Commission on 01.05.2017) is as under:
Initiate severe action and also impose fine/penalty and recommend the lapses/misdeeds for disciplinary/departmental action against the accused.
2. The brief facts of the case include that the complainant made an application dated 17.06.2016 wherein he sought information about Mr. Srinivas. The CPIO, Customs Department, Bangalore, furnished reply. Aggrieved by the reply he filed a complaint dated 09.06.2017 which is under consideration.
2.1 The matter was earlier heard by the Commission on 19.01.2018 wherein vide order dated 23.01.2018, the Commission had disposed of the matter as under:
“Keeping in view the facts of the case and the submissions made by both the parties and in the light of the aforesaid judgments, no further intervention of the Commission is warranted in the matter. For redressal of grievance, the Complainant is required to approach an appropriate forum.”
2.2. Aggrieved by the decision of the Commission, the Complainant approached the Hon’ble High Court of Karnataka in W.P. No. 8286/2018 which was decided by the Hon’ble High Court of Karnataka vide order dated 19.09.2019, the relevant extracts of which are as under:
“Admittedly, the petitioner by way of communication dated 25.07.2016 was informed that no such person by name Shri Srinivas, Inspector of Customs, Air Cargo Complex, Bangalore is posted in the office. Being aggrieved, the petitioner filed a complaint under Section 18 (e) of the Act before the Central Information Commission on the ground that he has been supplied incorrect and misleading information. From perusal of the order dated 25.09.2017 passed by the Central Information Commission, I find substance in the submission made on behalf of the petitioner that the information which has been supplied to the petitioner prima facie appears to be incorrect and misleading. However, the aforesaid aspect of the matter has not been considered by the Central Information Commission while passing the impugned order dated 23.01.2018. The complaint submitted by the petitioner has been rejected on the ground that the Complainant could not substantiate regarding mala fide denial of information by the respondent. The impugned order therefore suffers from the voice of information, application of mind and cannot be sustained in the eye of law. It is accordingly quashed. The Central Information Commission is directed to decide the issue, whether or not, the application of the petitioner is incorrect/ misleading, in the light of order dated 25.09.2017 passed by the Central Information Commission in complaint no. CIC/DOREV/C/2017/311926-BJ, by a speaking order, after affording an opportunity of hearing to the parties, within a period of one month from the date of receipt of certified copy of the order passed today. It is made clear that this Court has not expressed any opinion on the merits of the case.”
2.2.1 In compliance with the aforesaid order of the Hon’ble High Court of Karnataka, the Legal Cell, Central Information Commission, inter alia placed the matter before Information Commissioner (IC)- Bimal Julka who vide his note dated 04.10.2019 proposed to schedule the hearing with another IC for the sake of objectivity / transparency. Thereafter, the Legal Cell, Central Information Commission vide another note dated 04.10.2019 inter alia placed the matter before Chief Information Commissioner (CIC) who vide his note dated 07.10.2019 stated that the matter be heard by Information Commissioner(BJ) and Information Commissioner(SC).
2.2.2 Hearing: 30.10.2019
The following interim order was made on 01.11.2019:-
“Hearing both the parties and on perusal of the records and adverting to the facts and circumstances of the case, the Commission feels that in order to ascertain more clarity and reasons, a show cause notice may be issued to the then CPIO and the present CPIO as to why penal action should not be initiated against them in accordance with the provisions of the RTI Act, 2005 for misleading the Commission with the correct identity of the Customs Official where information was sought by the Complainant. Therefore, the Commission instructs Mr. Sujith Kumar P. Sompur, the then CPIO and Dy. Commissioner, Air Cargo Complex and the present CPIO Mr. Ashutosh Kumar, Dy. Commissioner of Customs and CPIO, Air Cargo Complex to explain as to why penal action should not be initiated against them as per Section 20(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. of the RTI Act, 2005 within a period of 15 days from the date of receipt of this order. Mr. Ashutosh Kumar, Dy. Commissioner of Customs and CPIO, Air Cargo Complex is also directed to intimate Mr. Sujith Kumar P. Sompur, the then CPIO and Dy. Commissioner, Air Cargo Complex about the instant order and ensure his presence on the next date of hearing fixed by the Commission. Since the Registrar, CIC is not in position as on date, the Dy. Registrar (IC-BJ) is instructed to fix another date of hearing in the matter under intimation to all the concerned parties.”
2.2.3 Hearing on 05.12.2019
The following order/directions was passed on 20.12.2019:-
Hearing both the parties and on perusal of the records and adverting to the facts and circumstances of the case, the Commission feels that in order to comply with the principles of natural justice, a copy of the replies to the show cause notice submitted by both the CPIOs should be forwarded to the Complainant to enable him to submit his views by way of his written submission, if any. Therefore, the Commission while directing both the Respondents to forward their replies to the Complainant by way of e-mail also directed the Complainant to submit his written submission against the same, if any, within a period of 10 days from the date of receipt of the replies to the Commission and the Respondents. Based on the written submissions of the Complainant, the Commission may either fix another date of hearing, if required, or decide the matter on merits.
2.2.4 Hearing on 18.02.2020
The complainant attended the hearing and on behalf of the respondent Mr. K. V. Arvind, Sr. Standing Counsel (Customs), Bangalore, Mr. Ashutosh Kumar, Dy. Commissioner of Customs and CPIO, Air Cargo Complex, Bangalore and Mr. Nirmal Joy, Dy. Commissioner, Air Cargo Complex, Bangalore and Mr. Sujith Kumar P Sompur, Jt. Director, Guwahati, attended the hearing through video conference. Both parties made submissions.
3. The complainant while arguing his case inter alia alleged that the respondent by giving nil information misrepresented the facts; that criminal cases were pending against certain persons including Mr. M V Srinivas charges were also framed on 28.9.2017 that the CPIO evaded disclosure of information intentionally and that in a similar case vide order CIC/DOREV/C/2017/311926-BJ dated 25.9.2017 the Central Information Commission found the response of the respondent contradictory and in grave violation of the provisions of the RTI Act. The complainant also enclosed copies of the FIRs, chargesheets etc. to highlight that the respondent had given wrong information with mala fide. He also acknowledged that he received a copy of the response of the respondents with reference to the show cause notice in pursuance to the Commission’s order dated 30.10.2019.
3.1. The complainant also made written submissions dated 28.10.2019 wherein it had inter alia been stated that the RTI application was filed seeking information on one Mr. Srinivas, Inspector of Customs, Bangalore, Air Cargo Complex who was directly reporting to Mr. Sujith Kumar P. Sompur (CPIO) as Mr. Srinivas was with the CIU (Customs Intelligence Unit) department. Mr. Sujith Kumar P Sompur being the CIU head had only two inspectors allocated to him namely Mr. Srinivas and Mr. Niranjana Murthy. He thereafter alleged that Mr. Sujith Kumar P Sompur and Mr. Srinivas had jointly and severally committed several corrupt criminal acts and numerous FIRs and Charge Sheets had been filed by CBI, Local Police as well as by the CVC based on various complaints during the year 2015-16. When the RTI application was filed seeking information on Mr. Srinivas, Inspector of Customs, Mr. Sujith Kumar P Sompur (CPIO) with a sinister view to exonerate and extricate themselves had intentionally filed a false and malicious statement that there existed “No person by the name Shri Srinivas, Inspector of Customs, Air Cargo Complex, Bengaluru working at their office.”
3.2 The complainant also made written submissions dated 17.12.2019 wherein it was inter alia stated that the CPIO Mr. Ashutosh Kumar during the initial hearing on 30.10.2019 had made his initial defence/ submission that the person on whom information was sought i.e., Mr Srinivas, Inspector of Customs was not working at Air Cargo complex at the relevant point of time whereas on the next date of hearing, the CPIO Mr. Ashutosh Kumar took a contradictory defence that the inspector by the name of Mr. M V Srinivas was working in their department at the relevant point of time, however since the instant RTI application pertained to seeking information on Mr. Srinivas hence they could not ascertain as to who was the actual Mr. Srinvas. The Complainant further stated that the information sought in point no 01 of both the RTI applications pertained to the present posting of Mr Srinivas against which an appropriate response was given. Hence, the contention of the Respondent that there was lack of clarity/ full details of the information sought fell on the ground. On one hand, the Respondent recognised the said person in question i.e., Mr. Srinivas and replied to the RTI application whereas in the other application, they mislead by providing false information that there was no such person by the name of Mr. Srinivas which established mala fide on the part of the CPIO (Mr. Sujith Kumar P Sompur. While establishing the mala fide on the part of Mr. Sujith Kumar P Sompur, the Complainant referred to incidents to establish that he indulged in repeated offences and thereby made a mockery of the RTI Act. In view of the above, it was prayed to initiate penal action against Mr. Sujith Kumar P Sompur and departmental/ disciplinary action proceeding initiated against him as also penal action against Mr. Ashutosh Kumar.
4. The Respondent while defending the reply given by the then CPIO inter alia argued that the information sought was not about Mr. M. V. Srinivas and that subsequently the Complainant had revealed the additional information that he was referring to the specific person i.e. Mr. M. V. Srinivas. Hence, based on the earlier application, the CPIO could not have ascertained about the information sought and the information given at that according to him point of time according to him was correct as there was no person by name ‘Srinivas’ in the O/o the Pr. Commissioner of Customs, Air Cargo Complex, Bengaluru. Thus, the CPIO in the absence of correct name could not have inferred or created information which was not in the custody of the CPIO. There are a plethora of judicial pronouncements including those of the Central Information Commission supporting his view point that CPIO was not to invent or create information/ provide opinion/ advice or draw inference. He referred to the decision of the Commission in Complaint No CIC/CCUBL/C/2017/108697-BJ dated 12.12.2017 wherein it was articulated that the Complainant had prior knowledge of the presence of Mr. M.V. Srinivas, Customs Official whereas in the instant case he refrained to spell out the correct identity details.
4.1 In his reply, the Respondent (Mr. Sujith Kumar P. Sompur, the then CPIO) reiterated his response to the show cause notice and primarily argued that no mala fide intention existed on his part while replying to the RTI application since two similar RTI applications were filed by the Complainant on the same date i.e., 17.06.2017 wherein in one application he had sought information regarding “Mr. M.V. Srinivas, Inspector of Customs” while in the other application he had sought information regarding “Mr. Srinivas, Inspector of Customs” (Air Cargo Complex, Bangalore). Both the applications were replied on the same date i.e., 25.07.2016 denying information regarding “Mr. M.V. Srinivas” u/s 8 (1) (j) of the RTI Act, 2005 on the ground that the information sought was the personal information of a Third Party and no larger public interest warranting its disclosure was justified by the Appellant.
4.2 However, on the RTI application dated 17.06.2016 which is also replied by the CPIO, he mentioned that since there existed no officer by the name “Mr. Srinivas” in their department, a response with the comment “Nil” was provided on that RTI application. It was submitted that the CPIO was not competent to draw an inference or make an assumption that both the RTI applications related to the same person. The Complainant had prior knowledge of the presence of Mr. Srinivas M. V. Custom Official. Thus, the CPIO had no reason or basis or cause or even a belief to assume or to conclude that both of them were in respect of one and the same person/officer.
4.3 It was therefore prayed by the respondents that the Commission might appreciate the different facts and circumstances as presented by the Complainant in the two cases. Accordingly the contention of the applicant/complainant that information was provided to mislead or wrong information was provided was totally incorrect and baseless contended the respondent. The Respondent (Mr. Ashutosh Kumar, CPIO and Dy. Commissioner of Customs, Bangalore) at the outset handed over a copy of his reply to the show cause notice sent to the Commission to the Complainant as well and submitted that he has been transferred now and was not the incumbent CPIO anymore. While reiterating the submissions of Mr. Sujith Kumar P. Sompur, the then CPIO, he submitted that in accordance with the directions of the Commission in the last hearing, he had conveyed that Mr. M.V. Srinivas, Inspector of Customs had worked in the O/o the Pr. Commissioner of Customs, Airport and Air Cargo Complex between 08.06.2015 and 23.08.2018 and that other than Mr. M.V. Srinivas, Inspector of Customs, no Mr. Srinivas, Inspector of Customs was working in the O/o the Pr. Commissioner of Customs, Air Cargo Complex and that no Mr. Srinivas, Inspector of Customs was reporting to the then CPIO in the relevant period. Mr. M. V. Srinivas was therefore identifiable Inspector of Customs whereas Mr. Srinivas could not be identified and no assumptions could be taken with regard to the identity of the said official.
4.4 The Commission was in receipt of a reply to the show cause notice from the Respondent (Mr. Sujith Kumar P Sompur, the then CPIO) dated 14.11.2019, wherein it was stated that the Complainant Sri Kriplani had filed an RTI application dated 17.06.2016 to the CPIO, Office of the Commissioner of Customs, Queens Road, Bangalore seeking the information in respect of “Mr. M. V. Srinivas” – Inspector of Customs (SHED Air Cargo Complex, Bangalore). The application was transferred to the CPIO at Air Cargo Complex and was received by the then CPIO on 27.06.2016 and was replied by the then CPIO by his response dated 25.07.2016. It was submitted that the said response in respect of “Mr. M. V. Srinivas” was the subject matter of a Second Appeal before the Commission in Appeal No. CIC/CCUBL/C/2017/108697/BJ which was decided on 12.12.2017 wherein the Commission recorded the finding that no further intervention of the Commission was warranted in the matter. It was submitted that the said “Mr. M. V. Srinivas” in respect of whom the applicant had sought information, had worked in the Office of the Commissioner of Customs, Airport and Air Cargo Complex between 08.06.2015 and 23.08.2018.
4.5 Mr. Sujith Kumar P Sompur further submitted that the very same Complainant/Applicant had also filed another RTI application on the same date, viz. 17.06.2016, before the same CPIO, Office of the Commissioner of Customs, Queens Road, Bangalore seeking the information in respect of “Mr. Srinivas” – Inspector of Customs (Air Cargo Complex, Bangalore). It was submitted that the said second application was also transferred to the then CPIO and was received by him also on 27.06.2016. The then CPIO by his response also dated 25.07.2016 furnished the reply to the applicant informing that “There is no person by name Mr. Srinivas, Inspector of Customs, Air Cargo Complex, Bangalore working at this office and hence the information sought vide his application may be treated as Nil”. Thus it was prayed to take note of the dates of both the applications. Both the RTI applications were filed by the same Applicant/Complainant on the same date viz. 17.06.2016. In both the applications the Applicant/Complainant had sought similar items of information but had used a different phraseology. Both the applications were made to the PIO, Office of the Principal Commissioner of Customs, Queens Road, Bengaluru and that PIO had transferred them under Sec. 6(3) of the RTI Act to the then CPIO under the same letter and were received by the then CPIO on 27.06.2016. It was submitted that both the applications were replied by the then CPIO on 25.07.2016. Thus, in view of two RTI applications having been filed by the same applicant on the same date and seeking almost similar items of information pertaining to one in respect of “Mr. M. V. Srinivas” (Inspector of Customs, (SHED, Air Cargo Complex) and another in respect of “Mr. Srinivas” (Inspector of Customs, Air Cargo Complex), the then CPIO had no reason or basis or cause or even a belief to assume or to conclude that both of them were in respect of one and the same person/officer. In view of the above factual aspects, the contention of the applicant/complainant that information was provided to mislead or wrong information was provided was totally incorrect and baseless. The bona fide of the then CPIO was further justified in view of the response provided by him to the application filed by the applicant in respect of Mr. M. V. Srinivas, which response was upheld by the Commission in the Second Appeal. In fact the Complainant had sought information about 11 persons vide 11 separate RTI applications on the same date i.e. 17.06.2016. The CPIO had replied to all the 11 applications, which further demonstrates the bona fide of the then CPIO. It was further submitted that the CPIO was not competent to draw an inference and/or make an assumption that both the RTI applications related to the same person. In the above facts and circumstances, the response given by the then CPIO in respect of the application relating to “Mr. Srinivas” could not be considered as denial of information or providing misleading information in view of the application filed by the same applicant in respect of Mr. M. V. Srinivas having been responded as it was possible to identify that officer on the basis of the records and that response had been confirmed by the Commission. The Complainant had prior knowledge of the presence of Mr. Srinivas M. V., Customs Official whereas in the instant case he refrained to spell out the correct details.
4.6. It was also stated that the facts and circumstances of the decision of the Commission in Complaint No. CIC/DOREV/C/2017/311926-BJ dated 25.09.2017 was completely different from the instant case. However, on closer examination it was very clear that though the information sought pertained to Mr. Srinivas, the Commission took a view to issue a show cause notice to the CPIO on an earlier occasion who attended the video conference as he provided a contradictory reply vis-a-vis the original reply by the CPIO. A reference was also made to the decision of the Hon’ble Delhi High Court in W P ( C ) 11271/2009 in the case of Registrar of Companies Vs. the Dharmendra Kumar Garg decided on 01.06.2012. Furthermore, the RTI application in question, which was the basis of the complaint, itself was not maintainable as it was hit by the principles of resjudicata. When the application itself was not maintainable, it could not be the basis of the complaint under Sec. 20 of the RTI Act. The Respondent also referred to the judgment of the Hon’ble Delhi High Court in its decision in W. P. (C) 845/2014- Shail Sahini Vs. Sanjeev Kumar & others decided on 05.02.2014. It was also submitted that the Complainant was using the RTI Act for his self interest, without any public interest, for his personal vengeance against the Respondents PIOs and the Public Authority. Therefore, it was prayed to accept the above explanation and withdraw the show cause notice in the interest of justice and equity.
4.7. The Commission was also in receipt of a reply to the show cause notice from the Respondent (Mr. Ashutosh Kumar, CPIO and Dy. Commissioner of Customs) dated 13.11.2019 wherein he submitted that as per records available Mr. M.V. Srinivas, Inspector of Customs had worked in the O/o the Pr. Commissioner of Customs, Airport and Air Cargo Complex between 08.06.2015 and 23.08.2018 and that other than Mr. M.V. Srinivas, Inspector of Customs, no Mr. Srinivas, Inspector of Customs was working in the O/o the Pr. Commissioner of Customs, Air Cargo Complex and that no Mr. Srinivas, Inspector of Customs was reporting to the then CPIO in the relevant period. It was also stated that being the present CPIO he only attended the hearing on 30.10.2019 and represented the office based on available records. Furthermore, in view of the fact, that the applicant had filed two different RTI applications on the same date asking similar information in respect of Mr. M.V. Srinivas, Inspector of Customs (SHED, Air Cargo Complex) and Mr. Srinivas, Inspector of Customs (Air Cargo Complex) respectively from the same CPIO and that only Mr. M.V. Srinivas, Inspector of Customs was identifiable as working in the Air Cargo Complex as per the available records in the relevant period, had no reason or basis or cause or even a belief to assume or to conclude that both the applications were in respect of one and the same person/ officer. It was further stated that he had only put the correct factual position before the Commission and had no intention either to refuse information or to mislead the Commission hence the provisions of Section 20 were not applicable to the present CPIO.
5. Perusal of the RTI application dated 17.06.2016 reveals that complainant before filing the complaint sought the following information about Shri Srinivas, Inspector of Customs (Air Cargo Complex, Bangalore)
“Complete detailed list of Postings/Departments served until today from the date of joining duty with the department Address and ownership details of present Residential Premises if it is own property which has been purchased after joining duty with the department (to ascertain the prevailing market value) and also the mortgage details if any on the property, loans availed towards purchase, renovations etc. At the time of joining duty, was he staying in rented premises or own. If own premises please provide complete details like whether it was Parental/Ancestral/Self Acquired etc. Detailed list of assets acquired after joining duty with the department. (Movable/ Immovable/ Tangible/ Intangible assets). Number of children and their present educational qualifications and status to ascertain the mode and means of educational expenses. If children have completed or undergoing any professional courses in India or abroad like Medicine/Engineering/Management, require the details to know the means and mode of educational expenses incurred if it has been paid for by known legitimate means.”
5.1 The CPIO vide his letter dated 25.07.2016 replied to the appellant as under:-
“There is no person by name Mr. Srinivas, Inspector of Customs, Air Cargo Complex, Bangalore, working at this office and hence the information sought vide your application may be treated as Nil.”
5.2 Aggrieved by the reply of the CPIO, he filed complaint. Besides, he filed on the same date another RTI dated 17.06.2016 (on the same date) seeking similar information against Mr. Srinivas M. V. and both the RTIs were replied on 25.07.2016.
5.3 On being queried by the Commission regarding the reason why he did not mention the complete details of the officer i.e., Mr. M.V. Srinivas, Inspector of Customs in the instant RTI application which was admittedly done by him in another RTI application filed on the same day, no satisfactory response was provided by the Complainant who made a feeble plea in support of his contention that the name plate of the said officer only indicated the name Mr. Srinivas.
5.4 It is not the case that the CPIO had not replied/provided the information, but contention is that the CPIO misrepresented. Considering that both the RTI applications were filed on the same date i.e., 17.06.2016 before the same CPIO, the Complainant could have filed a single application seeking all information in a consolidated manner in order to avoid multiplicity of proceedings. Moreover, on perusal of both the applications, it is clear that the information sought in one application decided earlier in CIC/CCUBL/C/2017/108697-BJ dated 12.12.2017 pertained to Mr. M.V. Srinivas whereas the instant application pertained to Mr. Srinivas. It appears that the Complainant had not approached the Commission with clean hands. The Respondent provided two different replies strictly on the basis of the name of the officer regarding whom the information was sought and that the names mentioned by the complainant in RTI applications were not identical.
6. The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of records notes that both the CPIOs (Mr. Ashutosh Kumar and Mr. Sujith Kumar P Sompur ) had pleaded that the reply given was genuine, contextually correct and not misleading. It is also observed that it was not the case that the CPIO did not disclose identity of Mr. Srinivas M.V. Two RTI applications having been filed on the same date about one person namely Mr. Srinivas M V and in the name of another person Mr. Srinivas. One having been replied claiming exemption and the other replied by conveying that there was no such person by name Mr. Srinivas. It may also be otherwise inferred that the complainant having full knowledge had not mentioned the correct identity. Moreover, the complainant has not approached the Commission by way of 2nd appeal and also did not file 1st appeal. He had jumped over the opportunity of identification and correction if there was any communication gap or so called irregularities in the perception of the CPIO by not filing appeals. Moreover, if he was referring to the information concerning Mr. Srinivas M.V. the information was provided to him and may not take the plea that the information was not provided or misleading information was provided. On the other hand, if he was referring to some person by name Mr. Srinivas who was different from Mr. Srinivas M V then the reply was contextual not incorrect. Under the given circumstances of the case it may not be unreasonable on the part of CPIO to infer under the circumstances as was inferred by the CPIO and communicate a nil report. Moreover, if the complainant has relied upon the order dated 25.9.2017 then the matter has attained finality and his complaint might suffer on the basis of the principle of res judicata. The Hon’ble High Court while referring the case to the Commission observed that it had not expressed any opinion and that the earlier order dated 23.01.2018 of the Commission was suffering for want of reasons.
In view of the above, the Commission is of the view that the view taken by the CPIO in his reply that there was no such person by name Mr. Srinivas was not implausible. In view of the above, the CPIO may not be held responsible. Accordingly, the complaint is rejected and show cause notice is dropped.
(Suresh Chandra)
Information Commissioner
(Bimal Julka)
Chief Information Commissioner
Citation: Mr. Kriplani M v. Office of the Pr. Commissioner of Customs and Directorate of Revenue Intelligence (DRI) in Complaint No. CIC/CCUBL/C/2017/128442, Date: 12.03.2020