Improper RTI replies merit penalty

The information about the contribution of employees to the Provident Fund (PF) and matching contribution by the employer is frequently being rejected by the PF offices, on an illogical excuse that it is ‘third party’ information. The PIOs use the ‘third party’ clause under Section 11(1) like an exception and equate it with private information.

They consider this on par with bank account of that employee. What PIOs of PF offices should understand is that, when 12 per cent of salary is supposed to be mandatorily contributed by the employee as per law, and the employer has a duty to deposit that along with employer contribution, it cannot become some body’s private information.

It is mandatory part of stipulated salary, which is in public domain. Except two contributions, the PF account does not have any other information or money. Most of the RTI requests on this are based on non-crediting of PF contribution by employer, which is an offence as per law. If employer does not deposit the employees’ contribution also to the PF fund, the objective to provide security to life after retirement will be totally defeated.

Janardan Patil filed an RTI application in February 2016 for information pertaining to the records of 1988-89 submitted by Chetan Patil through his employer before joining the PF Scheme, copies of document about PF subscription deducted from the payment of Chetan Patil and share of employer deposited from July 1988 to March 1989 by the employer, etc. It was denied by CPIO and First Appellate Authority. In second appeal, the Commission directed the EPFO to provide complete information within 15 days and directed CPIO to show cause why maximum penalty should not be imposed for not furnishing the information.

The CPIO stated that when RTI application was filed the CPIO was a different officer, i.e., Jagdish Tambe, while he took over 14 months after RTI application was filed and that he was not aware of the RTI application pending with their department for two years. Then the Commission directed Jagdhish Tambe, past CPIO, and A C Pagare, present CPIO, to show cause why maximum penalty should not be imposed upon each of them for not furnishing the information.

Pagare said that he had given the information as directed by the CIC, claimed no liability for earlier delay by the earlier CPIO, and sought to drop the penalty. The first CPIO Jagdish Tambe, RPFC-I filed a written explanation, among other things, he said:

“3. The application (02.02.2016) is seen received on 23.02.2016, and promptly replied within 8 days. The application was forwarded to the branch concerned and the reply from the ‘deemed CPIO’ is immediately forwarded to the applicant duly furnishing the details of the appellate authority.

4. The First Appellate Authority decided in favour of the CPIO (23.06.2017). This strengthens the case that there is no mala fide intention on the part of the CPIO. The interpretation of the provisions can be differ but that cannot attribute mala fide intention or action on the part of the CPIO.

5. The applicant in the instant case has sought information on provident fund contribution of a third party, which included financial details of that person. As provident fund contribution is not a public information and pertains to the individual concerned and that such personal information has implication of being misused, the same cannot be provided. Various decisions of Hon. CIC, in past have held the same principle and this the information sought is found to be exempt from the provisions of the RTI Act, 2005 as per Section 8(1)(e) and 8(1)(j).

6. As seen from the records the applicant has not alleged any malafide intention on the CPIO. The erroneous enclosure as pointed out by the applicant is a clerical error and the same has already been rectified by the then CPIO.

8. I have been promptly and meticulously replying to the applications, to the satisfaction of the applicants and as a result the issue of appeal before Hon. CIC has hardly ever arisen. This it self shows that in general the implementation of the provisions of the Act have been proper for more than a decade at my end.

9. As a matter of fact till date no appeal before Hon. C.I.C. has ever gone against my interpretation and implementation of the provisions of the RTI or decision given on RTI application. This highlights my past record as a rightful executive in the role of CPIO.

10. Subsequently I have been delivering lectures in the Zonal Training Institute for 6 states and offices on R.T.I. During my tenure at Zonal Training Institute, Ujjain in 2016-17, I have been actively disseminating information and clearing doubts of participants and officials on various provisions of RTI, thereby facilitating effective implementation. This would further strengthen my case of being bonafide in my actions and intentions while dealing with the applications under RTI 2005.

11. Hon. CIC in several of its judgments has ordered that non-disclosure of third party details or data held in fiduciary relationship as proper. Some of the judgments and their applicability in the matter is discussed as below-

The details of transactions in the bank accounts of the customers are held by the Bank in its fiduciary capacity. Income tax returns filed by the assessee are also confidential information submitted in fiduciary capacity. {CIC decision dated 30.03.2006, Farida Hoosenally v. Income-tax}. In the instant case the provident fund details and transactions therein pertaining to an individual are held by EPFO n fiduciary relationship. Hence the judgment is applicable.

The information about the personal details of the employees us held by the public authority in a fiduciary capacity. Such information held in trust is not open to disclosure. [CIC decision dated 31.05.2006, Ajay Pal Singh v. State Farms Corporation of India Ltd]. In the instant case the provident fund details and transactions therein pertaining to an individual include their personal details too and the same are held by EPFO in fiduciary relationship. Hence the judgment is applicable.
Held that the matter connected with an employees provident fund is exclusive and personal to that employee and exempt u/s 8(1)(j). [CIC decision Smt. Chandrakala Bai v Western Coalfields Limited. [F. No. CIC/AT/A/2008/00128 DT 09.07.2008]

Held that the provident fund is not a public fund of an individual employee. Disclosure not permitted under section 8(1)(j). [CIC decision Shri Ajit Lakhani v Bhabha Atomic Research Centre, Mumbai. [application No CIC/WB/A/2006/00378 dated 09.02.2007].

12. In view of the arguments put forth I submit that there has been neither any delay nor any malafide intention or action on my part to invite penal provisions. Hence I hereby humbly plead to be absolved of any charges and request to drop the proceedings against me in my role as CPIO in the matter. Guidelines issued to me in the case would remain as beacon for me in continuing as a CPIO and a faculty for delivering training on provisions of the Right to Information Act 2005. I will be ever grateful for the same.”

The officers representing the respondent authority stated that on 04.08.2017, 25 pages of information were given along with a copy to the Commission and again on 07.08.2017, the same was handed over to the appellant in person. The Commission finds that there is a delay of nearly 15 months. The appellant stated that the information sought in point 3(a) and 3(b) is not provided. The Commission directed the respondent authority to provide point-wise information, within 30 days.

The Commission found it a fit case for imposing penalty considering incomplete and delay caused in providing the information, besides, denial of RTI application on illegal and illogical grounds and imposed maximum penalty of Rs. 25,000 against the then CPIO. (Based on CIC decision in Nagraj Janardhan Patil v. PIO, EPFO, Nasik, CIC/EPFOG/A/2016/294053, on 20.2.2018)