on 22 September, 2009

CENTRAL INFORMATION COMMISSION

Appeal No. CIC/AT/A/2008/01280 dated 29.09.2008 Right to Information Act 2005 - Section 19

PARTIES TO THE CASE:

Appellants : Shri Ketan Kantilal Modi

Public Authority : Central Board of Excise & Customs

Date of Decision : 22.09.2009

This second-appeal originated in appellant's RTI-application dated 30.06.2008, which was replied to by the CPIO through his communication dated 24.07.2008. The first-appeal of the appellant dated 07.08.2008 was decided by the Appellate Authority through an order dated 03.09.2008.

2. Appellant filed his second-appeal dated 10.09.2008, which was taken up by the Single Bench of Information Commissioner, Shri A.N Tiwari. A hearing was held on 23.03.2009 and order of the same date was issued by the Single Bench.

3. The Single Bench directed the CPIO, CBEC to provide to the appellant e-mail IDs of the CPIOs of all public authorities, who were in control of the information appellant was requesting through his RTI-application. This was in response to a submission by the appellant that if the e-mail IDs of the public authorities holding the information were provided to him, he would independently approach them under Section 6(1) of the RTI Act for the requested information.

4. On the basis of various submissions of the appellant and the respondents, the Single Bench concluded that the matter should be taken to a larger Bench of the Commission for a decision regarding the scope of Sections 6(1) and 6(3) of the Act, the important points relating to which were listed by the Single Bench as follows:-

“(i) Can it be deduced from the wordings of Section 6(1) and Section 6(3) that the obligation to transfer, either fully or partly, the RTI-application under Section 6(3) is cast on the CPIO only if it is established that appellant had made a bona-fide request for information in the belief that the CPIO to whom the request was made actually had the information in his control.

(ii) Is it open to an RTI-petitioner to file his request for information before any CPIO hoping that it was now the obligation of the CPIO to ensure its transfer to its correct destination. In other words, can a petitioner treat any CPIO within his reach as the single window where to file his RTI-application in the hope that all information would be either collected and provided to him or his application would be transferred to those who held the information.

(iii) Do the words of Section 6(3) limit the transfer of RTI- application only to a single CPIO, who might be holding the information. In other words, is transfer of application to multiple CPIOs is barred.

(iv) What is the implication of Section 7(9) of the RTI Act to cases where information is known to be held by a large number of public authorities.

(v) When an applicant files a petition for information before a CPIO knowing full well that the information which he is seeking was either not held by that CPIO or held at numerous other public authorities, can it be construed as an attempt to avoid paying fees for multiple RTI- applications.

(vi) What is the import of the word “concerned” appearing before the words “public authority” in Section 6(1) of the Act. Does it mean that an applicant has to exercise due diligence to locate the “concerned” public authority ⎯ who would be proximately, if not completely, linked to the information requested, before filing the application.

(vii) what is the implication of the term “public authority”. Can it be said that a single department such as the Department of Revenue is a single public authority regardless of the levels of its offices and their respective jurisdictions!”

5. Notices were issued to the parties, dated 27.05.2009 and 28.05.2009, for the hearing by the Full Bench comprising S/Shri Wajahat Habibullah, Chief Information Commissioner, A.N. Tiwari, Information Commissioner and Shailesh Gandhi, Information Commissioner.

6. Appellant was heard through videoconference (he was present at NIC's Videoconference facility at Mumbai) on 31.07.2009. Respondents were present at CIC's New Delhi office, from where the Bench conducted its hearing.

7. Appellant sent in his written-statement, which has been made part of the second-appeal record.

8. During the hearing, the Bench reminded the appellant that the Three-Member-Bench was not sitting in appeal over the Single Member Bench and that issue regarding disclosure of the entire range of information requested by the appellant in his RTI-application was being considered by the larger Bench. The Bench further noted that appellant's written-submissions were in the nature of questioning the decision of the Single Bench, whereas except providing to the appellant the e-mail IDs of all holders of the information on his own request, the Single Bench had not passed any appellate order. The entire matter was referred to the larger Bench while simultaneously highlighting some of the important points which merited attention in the considered view of the Single Member Bench.

9. Through his application dated 30.06.2008 filed before the CPIO, CBEC, appellant sought information corresponding to the following queries:-

“a) Information about action as initiated by the filed format/s for recovery of Service Tax from 3,408 Bulk Mail Handlers / Out Sourcing Agents under the provisions of Business Auxiliary Service for the assessment period/s between July 1, 2003 and June 15, 2005 all over the country.

b) Information about the number Bulk Mail Handlers / Out Sourcing Agents identified in each of the concerned Commissionerates for the purpose of recovery of all Service Tax under the provisions of Business Auxiliary Service for the assessment period/s between July 1, 2003 and June 15, 2005 all over the country (Commissionerate wise / Assessment Period wise for each of Bulk Mail Handler - Out Sourcing Agent identified using the route map furnished in the previous application in the each of the respective Commissionerate/s).

c) Information about issuance of Show Cause Notices, if any, and the amounts demanded towards Service Tax from 3,408 Bulk Mail Handlers / Out Sourcing Agents under the provisions of Business Auxiliary Service for the assessment period/s between July 1, 2003 and June 15, 2005 all over the country. (Commissionerate wise / Assessment Period wise for each of Bulk Mail Handler-Out Sourcing Agent identified using the route map furnished in the previous application in the each of the respective Commissionerate/s.)

d) In case if no such action has been initiated by any of the field formation/s, information about their reasons for not adhering to the Board's / DGCEI's directives in this regard from 3,408 Bulk Mail Handlers / Out Sourcing Agents under the provisions of Business Auxiliary Service for the assessment period/s between July 1, 2003 and June 15, 2005 all over the country. (Commissionerate wise / Assessment Period wise for each of Bulk Mail Handlers- Out Sourcing Agent identified using the route map furnished in the previous application in the each of the respective Commissionerate/s.)

e) In case if any of the 3,408 Bulk Mail Handlers was already registered and was discharging the Service Tax liability, as reported by the Commissioner, Service Tax, Chennai, information about the date on which such registration/s were sought, the date on which such registration/s were granted, the amounts of discharging their respective Service Tax liabilities and the Chapter under which such registrations were granted. (Commissionerate wise / Assessment Period wise for each of Bulk Mail Handlers- Out Sourcing Agent identified using the route map furnished in the previous application in the each of the respective Commissionerate/s.) (This information is being sought to ascertain whether such registration/s had been granted prior to January 4, 2005 or after it besides the Chapter under which such registrations were granted.)

f) In case if any of the Bulk Mail Handlers / Out Sourcing Agents had sought exemption for not falling within the turn over cap, information about their total turn over and the amount of commission paid by the Concerned postal authorities.

g) Information about CBEC's opinion on cases wherein any Bulk Mail Handlers / Out Sourcing Agents may have indulged into fraudulent franking and had usurped the entire amount received from the clients instead of depositing the same to concerned postal authorities, the amount to be considered as Gross Value for the purpose of ascertaining / computing Service Tax liabilities of such Bulk Mail Handlers / Out Sourcing Agents. (This information has been sought in order to clarify that if the entire amount usurped entirely is liable for Service Tax demand or only the commission payable to such assessees.)

h) Information about non-Cooperation by the postal authorities, if any, in giving details of Bulk Mail Handlers / Out Sourcing Agents in their respective jurisdictions and the business generated by them or reported that some Bulk Mail Handler / Out Sourcing Agents, if any, may have disappeared or left their respective premises registered under licensing condition disrupting the purpose of computing their Service Tax liabilities of such assessees and their numbers from the respective jurisdiction/s. (Commissionerate wise / Assessment Period wise for each of Bulk Mail Handlers- Out Sourcing Agent identified using the route map furnished in the previous application in the each of the respective Commissionerate/s.) (This information is sought in order to ascertain whether fraudsters are being shielded by the postal authorities.)

i) Information about total amount of Service Tax recovered or Service Tax liabilities computed or Show Cause Notices issued so far from the 3,408 Bulk Mail Handlers / Out Sourcing Agents under the provisions of “Business Auxiliary Service” for the assessment period/s between July 1, 2003 and June 15, 2005. (Commissionerate wise / Assessment Period wise for each of Bulk Mail Handlers-Out Sourcing Agent identified using the route map furnished in the previous application in the each of the respective Commissionerate/s.)

j) Information about the registration of all the Bulk Mail Handlers / Out Sourcing Agents after June 16, 2005 under the provisions of new Chapter / Classification “Mailing List Compilation & Mailing Services” and the amount/s of Service Tax paid by each of them vide their first return. (Commissionerate wise / Assessment Period wise for each of Bulk Mail Handlers- Out Sourcing Agent identified using the route map furnished in the previous application in the each of the respective Commissionerate/s.)

k) Information about the penal provisions under which action can be initiated against all those who have not adhered to the Board's / DGCEI's directives with regards to the applicability / recovery of Service Tax under the provisions of “Business Auxiliary Service” for the assessment periods between July 1, 2003 and June 15, 2005 and the name/s of the Officer/s, their designations and addresses.

l) Copies of the Opinion of the Board with regards to the applicability of “Business Auxiliary Service” vis-à-vis Bulk Mail Handlers / Out Sourcing Agents for the assessment periods between July 1, 2003 and June 15, 2005 as well as DGCEI's directive on the field formation regarding the same.”

10. Appellant had provided in his RTI-application the background for his seeking the above information.

11. CPIO, Ms.Ashima Bansal, Under Secretary, CBEC, through her communication dated 24.07.2008, informed appellant as follows:-

“Please refer to your letter dated 4.7.2008 on the above subject. As regards the issues relating to information regarding number of representations, amount recovered, number of bulk mail handlers, reasons for not taking action by the field formation, etc., you may approach the concerned CPIO as per instructions issued from D.O. (P&T) dated 12.06.2008 (copy enclosed) [sic].

2. As regards information concerning the communication of the Board's opinion in the matter, information has already been furnished to your vide F.No.425/CE&RTI/46/062818 dated 19.07.07.”

12. Along with this communication, CPIO also enclosed an Office Memorandum (O.M.) issued by the Department of Personal & Training, dated 12.06.2008 about the modalities to be followed by CPIO under Section 6(3) of the RTI Act read with its Section 6(1).

13. This office memorandum mainly focused on the circumstances in which Sections 6(1) and 6(3) of the RTI Act were operationalized and their inter-se relationship. Sections 6(1) and 6(3) read as follows:-

Section 6(1):

“A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to ⎯

(a) the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority;

(b) the Central Assistant Public Information Officer or State Assistant Public Information officer, as the case may be, specifying the particulars of the information sought by him or her:

Provided that where such request cannot be made in writing, the Central Public Information officer or State Information Officer, as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing.”

Section 6(3):

“Where an application is made to a public authority requesting for an information, ⎯

(i) which is held by another public authority; or (ii) the subject matter of which is more closely connected with the functions of another public authority,the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer.

Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application.”

14. DoPT's take on the contents of the two Sections, as stated in their O.M. of 12.06.2008, was:-

“A careful reading of the provisions of sub-section (1) sub-section (3) of Section 6, suggests that the Act requires an information seeker to address the application to the PIO of the 'concerned public authority'. However, there may be cases in which a person of ordinary prudence may believe that the piece of information sought by him / her would be available with the public authority to which he / she has addressed the application, but is actually held by some another public authority. In such cases, the applicant makes a bonafide mistake of addressing the application to the PIO of a wrong public authority. On the other hand where an applicant addresses the application to the PIO of a public authority, which to a person of ordinary prudence, would not appear to be the concern of that public authority, the applicant does not fulfil his responsibility of addressing the application to the 'concerned public authority'.”

15. DOPT Memorandum then proceeded to cite certain examples about how these two Sections are to be operationalized and the circumstances thereof.

16. Its main conclusion was that given the text of these two subsections, a public authority before whom an RTI application is filed was not obliged to transfer it to other public authorities under Section 6(3) if the “information is not related to any one particular public authority.” According to the OM, collecting information held by multiple public authorities amounted to creation of information and it was “beyond the scope of the Act for the public authority to create information.” The OM went ahead to advise the CPIOs that when a set of information requested by a petitioner was available in bits and pieces with several public authorities, the CPIO receiving the application should provide information to the applicant only for that public authority and for the part of the information held by such public authority. As regards the rest “the PIO of the public authority receiving the application should give information relating to it and advise the applicant to make separate applications to the concerned public authorities for obtaining information from them.”

17. CPIO had quoted the above O.M. of DOPT in support of his decision to decline the requested information to the appellant or to transfer his request to other public authorities known to hold the requested information in parts.

18. Appellant challenged this order before the Appellate Authority, Shri Sanjiv Srivastava, Director (CX.4), CBEC pleading that the DOPT O.M. could not supersede the provisions of the RTI Act and that the above O.M. misconstrued the provisions of Sections 6(1) and 6(3). He contested CPIO's contention that the O.M. could at all be cited as the reason for refusal to disclose the information as requested by appellant.

19. Appellate Authority considered the matter and passed a speaking order dated 03.09.2008. It is significant that in the Appellate Authority's order, the DOPT's O.M. was mentioned only in passing and, cited in support of the conclusions Appellate Authority arrived at on independent reading of the meaning of Section 6(1) and 6(3).

20. The summary of Appellate Authority's decision is as follows:-

(i) Appellate Authority held that he did not find “any error in submission of the appellant that Section 6(3) of the Act provides that request could have been transferred”.

(ii) He noted that the present request for information under Section 6(1) and request for transfer under Section 6(3) were sequels to the appellant earlier applying through other RTI-petitions for a set of information from the several public authorities and receiving their replies. “Now applicant is seeking some information in furtherance of the information that has been received from the said public authorities.”

(iii) From the above, Appellate Authority concluded that appellant was 'fully aware' as to where the information sought by him was available. In other words, he was in know of the public authority where the information requested by him was held within the meaning of Section 2(j) of RTI Act.

(iv) Appellate Authority argues that RTI Act in its Section 6(1) authorized appellant to file his RTI-application before a public authority, which he believed and knew, held the information he was seeking. The Act, inferentially, did not authorize an applicant to file an application before a public authority, who he knew, did not hold the requested information, or that he knew that such public authority held only a small part of the range of information he was requesting. According to the Appellate Authority, a petitioner filing his request before any public authority ⎯ in the hope that it was now the responsibility of the CPIO of that public authority to transfer his petition under Section 6(3) to wherever the information was held, regardless of whether that public authority held or did not hold the requested information ⎯ was not congruent with the scheme of the RTI Act.

“In case where the appellant genuinely believes that the information is available with this public authority to whom the application is made, but the concerned CPIO finds that the said information is not available with this public authority, but is available with some other public authority, then the Section prescribes the mode of transfer. However, it does not prescribes an indirect mode of approaching the other public authorities, which are otherwise directly accessible to the applicant.

It is now settled law having approval of Privy Council and Supreme Court, that if manner of performance of an action is prescribed in law then that is the correct method of performing and any other manner is barred. In my view appellant should approach the concerned public authorities for the information which he believes is available with them.”

21. The essence of the Appellate Authority's reasoning was that an applicant for information is required to file his request under Section 6(1) of the RTI Act before the CPIO “of the concerned public authority”. Section 6(3) came into play only if the request under Section 6(1) was properly made. In other words, if the request under Section 6(1) was not made before the 'concerned public authority', Section 6(3) could not be invoked for transferring the request to another public authority. No petitioner can be authorized to file a petition before any public authority ⎯ knowing full well that that was not the concerned public authority ⎯ with a request that the CPIO of such public authority took action under Section 6(3) to transfer such application to another public authority. Section 6(3) could not be invoked unless a petitioner has first satisfied the condition of Section 6(1).

22. Appellate Authority, therefore, concluded,

“………….In view the above discussions, it is quite evident that law provides that Appellant should have approached the concerned public authorities for seeking that information for which he knows or has reasons to believe that this information is available with that authority. Accordingly in respect of information at para a, b, c, d, e, f, h, i & j appellant should approach the concerned public authorities for seeking the information and I do not find any infirmity in the order of CPIO in this regard.”

23. Appellant came up in second-appeal dated 10.09.2008 before the Single Member Bench of the Commission, chaired by Information Commissioner, Shri A.N. Tiwari.

24. Introducing himself as a senior journalist based in Mumbai and currently not attached to any media organisation, appellant prefaced his queries with the observation that his request for information was rooted in “a very serious case of corruption indulged into by the Bulk Mail Handlers/Outsourcing Agents (hereinafter referred to as BMH/OSAs) who had been issued licences to provide bulk mail handling service to their respective clients.” Appellant stated that these licensed BMH/0SAs were found involved in tampering with the franking machines to whose private use they were entitled, and were franking “more articles than they were legally entitled to….”. Postal staff was also in “connivance” with these BMH/OSAs. Since 01/07/2003, the fees paid out for performance of these services attracted service tax under the category “Business Auxiliary Service.” It is the appellant's charge that none of these service providers sought mandatory registration with the service tax department nor were they discharging their respective service tax liabilities. The Addl. Director General of Central Excise Intelligence, Mumbai (ADG, DGCEI), in 04.01.2005 registered 11 cases of service tax evasion against certain BMH/OSAs. This was followed by the Directorate General of Central Excise Intelligence ⎯ DGCEI, New Delhi, issuing a circular dated 14.01.2005 stating that the BMH/OSAs “fell into the category of business auxiliary service and attracted service tax since 01.07.2003.” But this very same circular also stated that “since the BMH/OSAs were providing the service on behalf of the postal department the commission paid to them was not service taxable.”

25. While matters stood thus, on the recommendation of DGCEI, on 28.02.2005, government/CBEC introduced a new classification/chapter namely “mailing list compilation and mailing services” through the budget proposals for 2005-2006.

26. Appellant believes that the above introduction of new classification was a manoeuvre by the CBEC at the behest of DGCEI to “mislead the entire Parliament.” It is also the appellant's contention that when he invoked Section 6(1) of the Right To Information Act to make the public authority divulge the “reasons for proposing a new classification through budget proposal within less than 45 days of conceding to the fact that the old classification was applicable”, the information was “stone walled”.

27. According to the appellant, there was “collusion between the service tax department and the postal authorities” which came to light through the RTI-application earlier moved by the appellant to which the postal department had made a response.

28. It is the appellant's belief that “the officers involved in the case had been deliberately playing fraud on the Exchequer by not recovering mandatory service tax for the assessment periods between 01.07.2003 and 15.06.2005 under the provisions of the business auxiliary service and illegally suppressing all information/s pertaining to it”. He believes that the defrauded amount could be “several hundred crores”.

29. It was in the above background, that appellant, as stated by him in his RTI second-appeal dated 29.09.2008, solicited information as listed-out in paragraph 9 above.

30. Appellant has stated that he has been filing a number of RTI-applications before the CPIOs of DGCEI, CBEC and the Postal Department in an attempt to receive information regarding recovery of service tax from bulk mail handlers, etc. On most of those earlier occasions, when he filed his RTI-applications before the CPIO, CBEC, the central organisation of the Department of Central Excise ⎯ the CBEC ⎯ transferred his request to all Chief Commissioners and Commissioners from where he received a slew of information.

31. According to the appellant, “the current application was necessitated due to this response and despite three applications being already transferred and a precedence created by the CPIO, CBEC-CX-4,” as, for the present RTI-application of the appellant dated 30.06.2008, CPIO now inexplicably resorts to “refusal…..to transfer the application.” He believes this was part of the public authority's 'stonewalling' tactics. Appellant calls the present RTI-application “my fourth attempt in eliciting the information/s.”

32. Regarding the Appellate Authority and his order, appellant states that AA erred in upholding the CPIO's order, thereby endorsing the DOPT's OM. Appellant contends that AA had relied upon “an imaginary case study” in arriving at his conclusions. According to him, AA was remiss also in contending that costs “are associated with furnishing of information/s sought….” He believes that AA was wrong in concluding that by not filing his RTI-application before the 'concerned public authorities', appellant was attempting to avoid the cost associated with filing of such RTI-applications.

33. Appellant has, therefore, contended the following:-

Grounds for appeal:

A, B ⎯ Respondents were in error in relying on the DOPT O.M. to decline to act under Section 6(3) to transfer appellant's RTI-application to other public authorities who were known to hold the information.

C to N ⎯ The information sought by the appellant, although held by other public authorities, actually had its origins in the reply provided by CBEC when its opinion was sought by one of its subordinate offices. Therefore, the information sought by appellant “pertain to the outcome of the opinion it [CBEC] had given and the resultant directive to the field formations under her [CBEC] control …..”. As the CBEC is the final body to decide about rules and instructions applying to specific cases in all revenue matters, any directive and the consequence of that directive should be construed as an information “controlled” by CBEC even if specific action lay with other public authorities. It is also the appellant's contention that as the CBEC, in its capacity as the apex body in all Central Excise matters, had given its opinion, it ought to have received the reports from all its subordinate functionaries. Therefore, it is the appellant's belief that “CPIO is in possession of such information received from the subordinate office. In case, if any or all, the subordinate offices have not reported it was all the more reason for the CPIO to invoke the provisions of Section 6(3), whereby she could have received such information/s.”

O to S ⎯ Appellant claims that the information sought by him vide items 3 (III) G, J, K and L in his RTI-application, related directly to the office of the CPIO and ought to have been furnished to him. He claims that the CPIO informing him that the opinion of the CBEC provided to the field formation and as requested by the appellant, was provided to him through communication No.425/CF&RTI /46/06/2818 dated July 19, 2007, was false because CPIO was wrongly citing a letter issued by another public authority as communication from her (CPIO) to the appellant.

T to AA ⎯ Appellant has questioned the right of the DOPT to issue a memo, on the lines they did, interpreting Section 6(3) and believes that it was done with mala-fide intention with the sole aim of suppression of corruption as highlighted by the appellant. He calls this circular 'bad in law'. According to him, the power to interpret the provisions of the RTI Act vested in the Commission and could not be appropriated by DOPT.

BB to ZZ ⎯ Appellant has contested the Appellate Authority's conclusions, which have been summarised in paragraph 20 above. Appellant's points are as follows:-

1. While on the one hand Appellate Authority states that appellant's request for information could have been transferred to its holders under Section 6(3) by the CPIO, on the other he draws a contrary inference based upon a hypothetical scenario, i.e. the action a CPIO is required to take when he knows that a certain applicant is choosing to ask him for information which such applicant knows the public authority doesn't hold.

2. Appellate Authority was wrong in assuming that appellant was filing his RTI-application before any unrelated public authority for an information he knew was held by other public authorities. According to the appellant, CBEC was the nodal public authority and as such was perceived to have held the

information relating to all matters of central excise. A citizen, therefore, had a right to expect that if he approached CBEC for a set of information, his application would be answered either directly by the CBEC, or the CBEC would transfer it to the public authority, who it knew held the information. Appellate Authority, appellant has argued, was relying upon meaningless hypotheses and assumptions whereas what he was required to enquire was whether the CPIO of CBEC held the information or knew where the information was actually held to either act under Section 6(1) or under Section 6(3) of the RTI Act. CPIO had no other option under the provisions of the law.

3. It has been argued by the appellant that Appellate Authority ignored the fact that CBEC was “the nodal office” for the entire central excise and customs establishment and therefore should be construed as the 'concerned public authority' within the meaning of Section 6(1), which “a public spirited citizen” which appellant believes he is, should be facilitated to reach/approach.

4. AA had “wrongly, with mala-fide intentions, illegally without application of mind, in gross violation of the provisions of the Act and only in order to concur with the order of the CPIO” had inferred that appellant had resorted to 'indirect mode' of approaching other public authorities through Section 6(3) whereas the option of approaching them under Section 6(1) directly was always available to him. According to the appellant, it was the CPIO who had failed to follow the prescribed method as laid-out in Section 6(3) by relying on the DOPT O.M., which had no statutory validity.

5. It is the appellant's point that Appellate Authority and CPIO ought to have followed the procedure to compile answers for Starred / Unstarred Questions in the Parliament pertaining to indirect taxation. According to him, information for drafting replies to these Starred and Unstarred Questions was collected from all offices under the CBEC, compiled, collated and presented to the House of Parliament, to which it related. “CPIO should have followed the same procedure for providing me the information/s sought” ⎯ appellant states.

6. Appellant has argued that the opinion of the CBEC in the relevant matter he solicited through his RTI-application did not amount to seeking generation of an opinion, but was all about receiving copies of the opinion already expressed by CBEC and forming part of the records. An opinion sought from the CBEC and given by it for the guidance of the subordinate officers was truly and actually “any material in any form” as Section 2(f) of the RTI Act puts it. To characterize his request as one for generation of opinion, therefore, was disingenuous, according to the appellant.

It is the appellant's belief that on the basis of the opinion given by the CBEC “all field formations / subordinate offices were duty-bound to initiate action and submit the Action Taken Report to the authority issuing opinion/directive without prolonging it till infinite period.” Appellant claims that since the CBEC opinion / directive has been in existence for “over a year now”, he had reasons to believe that all such Action Taken Reports by the subordinate offices were generated and existed in the form of material records, which must be assumed to be under control of the CPIO. Either CPIO furnish the records to the appellant, or if she did not hold it, she had to transfer appellant's request to the public authorities where these records were known to have been held.

7. Appellant has contested AA's observation that by filing his request for information before the CPIO, CBEC in the hope and expectation that the CPIO will transfer it to whosoever held the information, appellant was attempting to avoid the cost associated with filing applications under Section 6(1) of the Act.

According to the appellant, he had forwarded the softcopy of his request to the Appellate Authority on his e-mail ID and then to the CPIO “in order to facilitate the transfer of my application through internet to the subordinate offices in order to save on cost and time.” He was, therefore, not short- circuiting the procedure. Appellant has accused the CPIO and the Appellate Authority of bringing up the cost matter in order to suppress the illegalities, which appellant believes, were present.

8. Appellant has questioned the CPIO referring to the DOPT circular that as per the wordings of the RTI Act in Section 6(3), the obligation of any public authority to transfer an RTI-application was limited to cases where a singular public authority held the requested information and not when the information was held by a plurality of them. He faults the CPIO for falling back on the DOPT memorandum to draw this

conclusion and states that that memorandum is not a binding directive to be unfailingly followed. He has demanded that DOPT be directed to delete or amend this circular/memo.

9. It is appellant's case that AA had ignored his request that he direct the CPIO to examine de-novo the range of matters brought up by appellant.

34. In the light of the above, appellant has requested the following relief:-

“i. Ms.Ashima Bansal, the CPIO, CBEC's Order No.Dy.764/2008- CX-4 dated June 12, 2008 [sic] (24.07.2008) be quashed / set aside forthwith.

ii. Ms.Ashima Bansal, the CPIO, CBEC be directed to examine the matter on merit de novo and transfer the application through Internet to her subordinate offices with a directive that information/s sought may be directly furnished to me through Internet only on my e-mail ids modiketan @hotmail.com and modiketan@rediffmail.com in order to save on time and costs.

iii. Ms.Ashima Bansal, the CPIO, CBEC be directed to e-mail me the e-mail ids of all the subordinate office to whom such transfer through Internet is made facilitating my direct interaction with them in case of disputes.

iv. Ms.Ashima Bansal, the CPIO, CBEC be directed to furnish me all the information/s including records pertaining directly to her office sought by me forthwith. v. Mr.K.G. Verma, Director, DoPT be directed to quash / set aside / delete / suitably amend circular No.10/2/2008-IR dated July 12, 2008.

vi. In case of any resistance to my above prayer from DoPT, the matter may be examined on merit by the full bench of the Hon'ble CIC.

vii. Mr.Sanjeev Srivastava, Director, CBEC-CX-4's Order in First Appeal vide Dy.No.57/2008/CX-4 dated September 4, 2008 be quashed / set aside forthwith.

viii. Ms.Ashima Bansal, the CPIO, CBEC be subjected to penal provision u/s 20 of the Act for withholding information/s of vital public interest besides not adhering to provisions of the Act which was a mandatory obligation conferred on her with malafide intentions, without application of mind, in gross violation of the section 6 of the Act, illegally, and shielding gross illegalities prevailing in the subordinate offices under her besides spiking my efforts in obtaining / sharing information of vital public interest. ix. Mr.K.G. Verma, Director, DoPT and the author of the circular No.10/2/2008-IR be subjected to penal provision u/s 20 for deliberately misguiding the subordinate public authorities by issuing circulars / directives in the guise of “its own views” malafide intentions, without application of mind, an illegal and unauthorized attempt to dilute the provisions of a statute.

x. Mr.Sanjeev Srivastava, the AA, CBEC-CX-4 be subjected to penal provisions u/s 20 for deliberately not passing a speaking order and wrongfully, deliberately, malafide intentions, without application of mind, in gross violation of the section 6 of the Act, illegally, only in order to concur with the CPIO, and illegalities prevailing in the subordinate offices under him besides spiking my efforts in obtaining / sharing information of vital public interest and deliberately passing an illegal order not in conformity with the Act.

xi. During Personal Hearing, as and when it is scheduled, I be allowed to present my submissions through video conferencing from the NIC Centre, Mumbai under expressed advance intimation to me.

xii. Any other relief/s as deemed fit by the Hon'ble CIC and ICs.”

35. Appellant has again submitted a written-statement to supplement his second-appeal petition originally filed before the Single-Member Bench of the Commission. These additional submissions note that Single Bench in its order dated 23.04.2009 while referring the matter to the larger Bench had conceded the relief sought vide para 8.ii.aaa.iii to direct the respondents to furnish to the appellant e-mail ids of the public authorities subordinate to them. Appellant claims to be before the Full Bench to seek relief for rest of the items in his second-appeal vide paragraphs 8.ii.aaa.i to 8.ii.aaa.x and 8.ii.aaa.xii. He has claimed that the Single-Member Bench had “erroneously ignored the rest of the prayers without going into the merits of the case and has simply offloaded the burden on the Full Bench to decide the fate of my appeal petition.” He has spelt-out the point, which according to him, he wishes to “stress upon” for the Full Bench hearing. These points are as follows:-

“a) Decision on my appeal petition by the Full Bench without referring it to the Single Bench de novo.

b) All my prayers in the appeal petition as well as the prayers amended during this personal hearing be decided and upheld and necessary order be passed by this Full Bench.

c) Invoke the provisions of Section 4 of the Information Technology Act, 2000.

d) Control over the information/s sought by the CPIO and/or First Appellate Authority in their respective roles as the nodal office in the Ministry of Finance and the mandatory obligation cast upon them to share the same in vital public interest.

e) Transfer of application by the CPIO in terms of Section 6(3) in case if she deems it fit that the information/s sought are controlled by offices of public authorities subordinate to her office.

f) Deletion of DoPT's Circular No.10/2/2006-IR dated June 12, 2008. Alternatively direct the DoPT to suitably amend the circular with modification clarifying that the contents of the said circular are merely DoPT's views and not binding directive on any one.

g) Penal action against the CPIO/First Appellate authority as well as Mr.K.G. Verma, author and Director of the Circular No.10/2/2006-IR dated June 12, 2008.”

36. Appellant has requested the larger Bench to take notice of the fact that the First Appellate Authority had “strongly and illegally preferred to convert my application into questions on whether the application must be transferred to other public authorities, which are subordinate to the office of the CPIO or not ?” He believes that there were larger issues involved in his RTI-application, i.e. “sharing of the information of vital public interest.”

37. He has reiterated his points earlier made that it needed to be determined whether the information sought by the appellant was under the control of the CPIO and whether the CPIO representing the public authority was obliged to share this information with appellant in larger public interest. The issue is whether the entire range of information was to be treated as being under the control of the CPIO of the CBEC regardless of where the information was located. It is appellant's case that as the Apex Body controlling all subordinate central excise organizations, CBEC must be construed to be in control of the information germane to its functions even if all or part of it was held by subordinate formations.

38. Appellant has further argued that respondents were unnecessarily raising a hue and cry about transferring his application to multiple subordinate authorities and the cost involved thereof, whereas all that they needed to do was to use the Internet or the e-mail to painlessly and speedily transfer appellant's request for information to all its holders. He has pointed out that the same respondents on earlier occasions had transferred more than one of appellant's RTI-applications to subordinates who were known to hold the requested information.

39. Appellant has drawn Commission's attention to what he describes as “legal recognition of electronic records” under Section 4 of the Information Technology Act, 2000. He has pointed out that in highlighting the important points for consideration of the larger Bench, the Single Bench had omitted to refer to the Information Technology Act, about which appellant had made a submission during the hearing before the Single Bench. According to him, this amounted to an error of the Single Bench.

40. It is appellant's submission that Section 7(9) of the RTI Act has no application in the present matter.

41. It is his case that the CBEC as the “nodal office” with regard to administration and implementation of Service Tax-related matters wielded control over the information sought from that office and from its subordinate offices. What appellant seems to mean is that the CBEC as the nodal office in all central excise matters, should be deemed to control (under Section 2(j)) all information regardless of whether it was held directly by CBEC or by its subordinate offices under its charge.

42. Appellant has reiterated that Chief Commissioners and Commissioners of Central Excise had sought Board's opinion regarding “applicability of business auxiliary service” [sic], and as informed to appellant by the Chief Commissioners of Central Excise, Chennai Zone, the opinion was received from the Directorate General of Central Excise (DGCEI). From this, appellant concludes that “there was a mandatory obligation cast upon the subordinate offices to inform the office of the respondents about its compliance report.” It is his belief that it was “an established fact beyond any doubt”, that such compliance reports were forwarded to the office of the respondents. Appellant arrives at this inference from the communication he apparently received from the Chief Commissioner of Central Excise, Chennai, in which it was stated that “a copy of the said communication was also marked to Mr. Sanjeev Srivastava for information.” It is unclear from what appellant has stated here whether by “said communication” he meant the compliance reports furnished by subordinate offices to the CBEC as a follow-up on the opinion received from CBEC, or it only refers to the Chief Commissioner of Central Excise, Chennai marking Board's opinion to Commissioners of Central Excise in the Zone as well as to Mr. Sanjeev Srivastava in the office of the CBEC as a token of the Chief Commissioner having duly forwarded Board's opinion to lower officers for action at their end.

43. Appellant has contended that he was within his right to apply to the CPIO of the CBEC as that was the nodal office of multiple subordinate public offices which it controlled. Making an application under Section 6(1) to such a “nodal office” could not be described as an attempt to use CBEC as a single-window for meeting all appellant's information needs.

44. Appellant claims that he was not aware where the requested information was actually held. On the contrary, it is appellant's submission that it was his belief that the CBEC was in “absolute physical possession” of the requested information. He claims that if an information-seeker were to reach multiple public offices for the information he wishes to receive, it would amount to “nothing but taxing the information-seekers unnecessarily and forcing the citizens to run around every single bureaucratic pillars that are stonewalling information/s” [sic].

45. We have taken note of the respective submissions of the appellant and the respondents in regard to the transfer obligation cast on the CPIO under sub-section 3 of Section 6 of RTI Act.

46. In our view, this subsection ⎯ especially its relationship with the preceding Section 6(1) ⎯ should be viewed in its theoretical as well as practical aspects.

47. Given the wordings of Sections 6(1) and 6(3) and the arrangement of these two subsections, the argument put-forward by the Appellate Authority, deserves to be carefully reflected on. Appellate Authority has contended that it is Section 6(1), which lays down the principal methodology of filing RTI-petition by requesters before the CPIO of the “concerned public authority”. A plain reading of Section 6(1) reveals that,

(a) the requester shall make the request in writing or through electronic means;

(b) the request application shall be accompanied by the prescribed fee and,

(C) application shall be made before CPIO of the 'concerned public authority' specifying the particulars of the information sought.

48. It is the Appellate Authority's reasoning that an application for information will have to first stand the test of Section 6(1) in order to be validly accepted by the CPIO concerned for processing for disclosure of information. In case the application is not filed before the 'concerned public authority' / CPIO, it shall not qualify to be a valid request for information.

49. The expression “concerned public authority” implies that that public authority should be holding the information which the petitioner sought as per Section 2(j) of the RTI Act, which states that right to information means “the right to information accessible under this Act which is held by or under the control of any public authority…”. Section 6(1) ⎯ its expression 'concerned public authority' ⎯ becomes clearer when read in conjunction with Section 2(j) of the Act.

50. According to the Appellate Authority, an application, which is not filed before the 'concerned public authority' holding the information, is not a valid RTI application under Section 6(1) of the RTI Act.

51. It has been further argued that Section 6(3) comes into play only if an application is validly filed under Section 6(1). In other words, an applicant cannot file an RTI-application before an unrelated public authority expecting that the CPIO of that public authority would transfer his application under Section 6(3) to the public authority where the information may be held. No application can be filed before a CPIO under Section 6(3).

52. The arrangement of these two sub-sections of Section 6 leads to the inference that there are certain definitive expectations of due diligence from an information-seeker ⎯ about identifying the public authority where the requested information is known to be held. Section 6(3) castes an obligation on the CPIO to transfer an RTI-application filed under Section 6(1) to another public authority where the former knows the information is held ⎯ a fact which a petitioner was not expected to know given the circumstances. In other words, Section 6(3) is the exception to the general rule contained in Section 6(1) that a request for information should be filed before a public authority, which holds the information. The decision whether to transfer an RTI-application within the meaning of Section 6(3) is to be the CPIO's given the circumstances of the matter. For example, a public authority may be known to be holding a certain set of information but due to internal arrangement that information might have been given under the control of some other public authority, which fact might not have been known to the information-seeker. The CPIO of the public authority receiving the RTI-application may then helpfully transfer the request to the public authority who now controls the information. There may be several such instances where an applicant may file his request under a bona-fide impression that a certain public authority holds a certain information, which may not be a valid impression. The CPIO then can help the petitioner by transferring his application to the public authority which may be concerned with the information.

53. It follows from it that when a petitioner is aware of the location of a given information vis-à-vis a public authority, it is not open to him to file his RTI- application before any other public authority in the expectation that this latter public authority would act under Section 6(3) to transfer his application to where the information was known to be held. As in this particular case, it is quite obvious that the appellant was fully cognizant of the fact about the information requested by him being held by Chief Commissionerates and Commissionerates of Central Excise. Yet, rather than approach those public authorities ⎯ and all these where public authorities in their own rights ⎯ for the information under Section 6(1), he chose the easy way out of filing his application under Section 6(1) read with Section 6(3) before the CPIO, CBEC, demanding simultaneously that the application be transferred to the Commissioners. Appellant's argument that CBEC was the Apex body or the nodal office, does not help him much because even if CBEC were to be all that appellant says it is ⎯ nodal office or Apex body, etc. ⎯ under the RTI Act it is a public authority and its rights and obligations flow from its status as that public authority under Section 2(h) of the Act. A public authority cannot be forced to accept obligations beyond the statutory limit in order to suit a petitioner's convenience.

54. We, therefore, hold that a petitioner is obliged under Section 6(1) to file his RTI-application before the CPIO of the public authority which is the “concerned public authority”, which holds the information within the meaning of Section 2(j) of the Act.

55. The decision to transfer an RTI-application to another public authority under Section 6(3) is to be CPIO's given the circumstances surrounding a particular request for information. These circumstances may vary from case to case and petition to petition and cannot be pre- determined.

56. A public authority which does not hold or is not related to an information sought by a petitioner, will not be obliged to provide an answer to the petitioner only for the reason that that public authority was the Apex body or the nodal office of others sub-ordinate public authorities. Such a public authority ⎯ such as the CBEC or the Ministry of Finance/ Department of Revenue ⎯ when it receives an RTI- application for disclosure of an information which both the petitioner and the CBEC or the Ministry know is held by subordinate offices such as the Commissionerates, then the public authority (CBEC or the Ministry) may inform the petitioner that it was not the holder of the information and hence not the 'concerned public authority'. In the alternative, such a public authority may choose to help the petitioner by transferring his request to the subordinate public authorities where the information was known or expected to be held. This latter decision is to be of the public authority given the circumstances and the conditions surrounding the petition and the case. It cannot be claimed by the petitioner as a matter of right ⎯ a substitute for his own due diligence, i.e. to file the petition under Section 6(1) appropriately before the public authority which is known to hold the information requested and, more importantly, which the petitioner himself knows holds the information.

57. As we stated earlier, the above is the theoretical position on a plain reading of the statute. It is nevertheless necessary to integrate with it certain practical aspects. Appellant has highlighted some of these in his petition. According to him, it should not be too much effort for the CPIO of a central public authority such as the CBEC to electronically transfer his request to the subordinate formations ⎯ Chief Commissioners and Commissioners ⎯ with a direction that they furnish replies to the appellant independently. It needs nothing more than a click of a few buttons on the computer for the message to go down to the subordinate offices, which would then be activated to respond to the appellant. In fact, one subordinate authority, i.e. the Chief Commissioners of Central Excise, Chennai has done just that and in the past, CPIO, CBEC has been transferring information-requests under Section 6(3) to subordinate offices ⎯ public authorities themselves.

58. In our view, in case CPIO of the public authority can easily and inexpensively transfer an information-request under Section 6(1) to its subordinate offices under Section 6(3), which in themselves may be public authorities, then such CPIO should proceed to do so. As in this case, since all it needed to transfer the request to other public authorities under the CBEC was to use the e-mail or the Internet, with which all these public authorities were connected, it should be possible to effect the transfer under Section 6(3).

59. We, therefore, direct the CPIO, CBEC to transfer appellant's RTI-application to the subordinate offices/public authorities where the information requested by the appellant is known to be held. This may be done within two weeks of the receipt of this order.

60. In case, given the nature of the information, CPIO, CBEC is not sure about the location of the information, a suitable reply to the appellant may be given within two weeks of the receipt of this order. Information held by CBEC shall be disclosed subject to provisions of the RTI Act within 2 weeks of the receipt of this order.

61. It is further directed that in case CPIO, CBEC transfers appellant's RTI-application electronically to the subordinate Commissionerates, the latter shall process these information-requests as independent requests under Section 6(1) and collect from the petitioner all requisite fees including the application fee as if the application were made independently by him to that public authority subordinate to the CBEC.

62. The above directions dispose of appellant's points at Sl.Nos.I to IV made in his second-appeal petition dated 10.09.2008.

63. As regards the points in second-appeal at V and VI regarding direction to DOPT regarding O.M. No.10/2/2006-IR dated June 12, 2008, as stated earlier, we do not consider this necessary at all. The decision of this Commission will hold good regardless of what is contained in the DOPT O.M. It is not this Commission's responsibility to take cognizance of any interpretative circular or instructions issued by any Ministry or Department regarding specific provisions of the RTI Act. Once the Commission makes an order about the meaning of any Section or Sections of the Act, it is this order that holds ⎯ any circulars / memoranda, etc. from Ministries, Departments or public authorities notwithstanding.

64. We do not consider it necessary to draw up any Section 18 proceeding against the CPIO, the Appellate Authority or the signatory of the DOPT O.M. Officers do not have to be penalized simply because they hold a view different from appellant's own.

65. Before parting with this appeal, we also consider it necessary to mention that appellant has been liberally using words such as mala-fide intention, without application of mind, etc. about the CPIO and the Appellate Authority. In our view, the use of these offensive expressions was entirely uncalled for. Appellate Authority and CPIO had taken reasoned positions under the RTI Act in their best judgement. Merely because it was not in consonance with the thinking of the appellant, these decisions did not become mala-fide and even less so, mindless.

66. Matter is disposed of with the above orders.

( WAJAHAT HABIBULLAH ) (A.N. TIWARI) (SHAILESH GANDHI) Chief Information Commissioner Information Commissioner Information Commissioner

Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.

(D.C. SINGH)

Asst. Registrar