Central Information Commission
Gnb Rao vs Indian Army on 18 July, 2024
केन्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
File No: CIC/IARMY/A/2023/123024
GNB Rao .....अपीलकर्ाग /Appellant
VERSUS
बनाम
PIO,
RTI Cell, EME Records,
PIN -900453, C/o 56 APO ....प्रनर्वािीगण /Respondent
Date of Hearing : 11.07.2024
Date of Decision : 15.07.2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
Relevant facts emerging from appeal:
RTI application filed on : 11.03.2023
CPIO replied on : 28.03.2023
First appeal filed on : 04.04.2023
First Appellate Authority's order : 06.05.2023
2nd Appeal/Complaint dated : 23.05.2023
Information sought:
The Appellant filed an RTI application dated 11.03.2023 seeking the following information:Page 1 of 10
(a) Non-existence of Part II order No 0/0074/001/2008 dt 04 Dec 2008 as on 23 Apr 2009 as per 2 (1) Para Fd Wksp Coy (originator) letter No 41102/Est-II/PC dt 13 Feb 2009 and EME Records (custodian) letter No JC-754398A/SR/T-17/ER-5 dt 23 Apr 2009. Then how was EME Records has been accepted and entered' Severe Reprimand' in my sheet roll on 17 Jan 2009 and placed in front of Board of Officers, DPC-2010 causing to declared unfit for Sub Maj Promotion due to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/P4/12/Unfit dt 18 Dec 2010?
(b) Form 1, Form for use at Summary Trials of Officers, JCOs and WOs under Section 83 to 85 of the Army Act reveals that I was awarded "Severe Reprimand" on 25 Feb 2008, whereas Part II order reveals that I was awarded "Severe Reprimand" on 24 Feb 2008. Then how was EME Records has been accepted and entered 'Severe Reprimand' in my sheet roll on 17 Jan 2009 and placed in front of Board of Officers, DPC-2010 causing to declared unfit for Sub Maj Promotion due to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/P4/12/Unfit dt 18 Dec 2010?
(c) Form 1, Form for use at Summary Trials of Officers, JCOs and WOs under Section 83 to 85 of the Army Act reveals that UNIT: 2 (1) Para Fd Wksp Coy att to 9 Para Fd Regt vide HQ 50 (I) Para Bde letter No 50505/S/A dt 24 Jan 2008 and Army Rule 28, Notes Para 1 reveals that "If the accused is attached to another unit, the charge sheet must be signed by the CO of the unit to which he is so attached. The order for the Trial must be endorsed at the foot of the Charge Sheet and signed by the convening officer or by a staff officer 'for' him. Charge Sheet cannot be endorsed for Trial by a Staff Officer. There is no endorsement order for the Trail at the foot of the Charge Sheet and signed by the convening officer or by a staff officer 'for' him. Then how was EME Records accepted this charge sheet and Form 1 (both contrary to each other), even though, EME Records was entered in my sheet roll and placed in front BOO, DPC 2010 causing to declared unfit for Sub Maj Promotion due to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/P4/12/Unfit dt 18 Dec 2010?
(d) Charge 1 covers under Army Act Section 40(c) "using insubordinate language to such officer and Charges 2-4 covers under Army Act Section 42(e) "neglects to obey any general, local or other order". Then how was Col Anupinder Bevli has been framed all the charges under Army Act 63 and EME Records was accepted and entered in my sheet roll?
(e) 2 (I) Para Fd Wksp Coy original Part II order No 0/0050/001-004/2008 dt 02 Jul 2008 and its cancellation Part II order Nos 0065/054/2008 dt 12 Nov 2008 (original Part II order No 0/0050/001/2008 dt 02 Jul 2008) and Page 2 of 10 0/0036/084-086/2009 dt 10 May 2009 (original Part II order No 0/0050/002-004/2008 dt 02 Jul 2008), unless and until completely cancelled its original Part II orders, re-pub Part II order if any in between 02 Jul 2008 to 10 May 2009 are duplicate, non-est and void in law, then how EME Records was accepted re-pub Part II order dt 04 Dec 2008 and entered in my sheet roll on 17 Jan 2009 and placed in front of BOO DPC- 2010 causing to declared unfit for Sub Maj Promotion due to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/P4/12/Unfit dt 18 Dec 2010?
(f) Para 2 (k) of EME Records letter No 2664/T-16/ER-7 dt 25 Sep 2008 reveals that "the above case should have processed through your Fmn HQ, whereas 9 Para Fd Regt letter No 408102/GNBR/x/A dt 29 Feb 2008 reveals that "addressed this letter HQ Central Command (DJAG) (By hand) regarding fwd of summary trial documents for review. Both these letters contradictory to each other. Then how was EME Records has been accepted and entered in my sheet roll on 17 Jan 2009 and placed in front of Board of Officers, DPC- 2010 causing to declared unfit for Sub Maj Promotion due to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/P4/12/Unfit dt 18 Dec 2010?
(g) Field Conduct Sheet (IAFF-3013) date of offence shown as 24 Feb 2008 for all the charges, whereas charge sheet shown that Charge 1 dt 03 Jul 2007, Charge 2 dt 29 Aug 2007, Charge 3 dt 19 Nov 2007 and Charge 4 dt 10 Dec 2007, then how EME Records was accepted intermediate Part II order dt 04 Dec 2008, entered in my sheet roll on 17 Jan 2009 and placed in front of BOO DPC-2010 causing to declared unfit for Sub Maj Promotion due to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/P4/ 12/Unfit dt 18 Dec 2010?
(h) Manuscript of Court of Inquiry has not been received by EME Records, then how EME Records was accepted re-pub Part II order dt 04 Dec 2008 and entered in my sheet roll on 17 Jan 2009 and placed in front of BOO DPC-2010 causing to declared unfit for Sub Maj Promotion due to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/ P4/12/Unfit dt 18 Dec 2010?
(j) Neither compliance of Army Rule 179 & 180 while conducting Court of Inquiry (15) Dec 2007 to 19 Dec 2007) nor Army 22 at the time of 'Hearing of Charge' (02 Feb 2008) and cogent evidence on record. Then how EME Records was accepted this punishment of "Severe Reprimand' and entered in my sheet roll on 17 Jan 2009 and placed in front of BOO DPC-2010 causing to declared unfit for Sub Maj Promotion due to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/P4/12/Unfit dt 18 Dec 2010?
Page 3 of 10(k) Remarks column of Part II order No 0/0074/001/2008 dt 04 Dec 2008 reveals that Charge 1 dt 10 Dec 2007, Charge 2 dt 19 Nov 2007, Charge 3 dt 29 Aug 2007 and Charge 4 dt 03 Jul 2007 whereas Charge sheet reveals that Charge 1 dt 03 Jul 2007, Charge 2 dt29 Aug 2007, Charge 3 dt 19 Nov 2007 and Charge 4 dt 10 Dec 2007 both these statements are non-conformity and contrary to each other. Then how EME Records was accepted this punishment of "Severe Reprimand" and entered in my sheet roll on 17 Jan 2009 and placed in front of BO0 DPC-2010 causing to declared unfit for Sub Maj Promotion duo to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/P4/ 12/Unfit dt 18 Dec 2010? (I) 2 (1) Para Fd Wksp Coy has been cancelled its original Part II order No 0/0050/002- 004/2008 dt 02 Jul 2008 vide cancellation Part II order No 0/0036/084-086/2009 dt 10 May 2009 under the authority of EME Records letter No 2664/T-16/ER-7 dt 05 Nov 2008, whereas EME Records has been rejected original Part II order dt 02 Jul 2008 vide their letter No 2664/T-16/ER-7 dt 25 Sep 2008, both these statements are non- conformity and contrary to each other and was non-est and void in law. Then how EME Records was accepted this punishment of 'Severe Reprimand' and entered in my sheet roll on 17 Jan 2009 and placed in front of BO0 DPC-2010 causing to declared unfit for Sub Maj Promotion due to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/P4/ 12/Unfit dt 18 Dec 2010?
(m) 2 (1) Para Fd Wksp Coy has been cancelled its re-pub Part II order No 0/0064/001/2008 dt 04 Nov 2008 vide cancellation Part II order No 0/0073/006/2008 dt 04 Dec 2008 under the authority of EME Records letter No 2664/T-16/ER-7 dt 05 Nov 2008, whereas EME Records has been rejected re-pub Part II order dt 04 Nov 2008 vide their letter No 754398/T-16/SR/ER-7 dt 17 Jan 2009, both these statements are non- conformity and contrary to each other and was non-est and void in law. Then how EME Records was accepted this punishment of 'Severe Reprimand' and entered in my sheet roll on 17 Jan 2009 and placed in front of BOO DPC-2010 causing to declared unfit for Sub Maj Promotion due to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/P4/12/Unfit dt 18 Dec 20107 (N) HQ Central Command (DJAG) report vide their S N No 600268/JAG/ 2008 dt 18 Mar 2008 addressed to HQ Central Command (A/DV) only based on Summary Trial documents fwd for review vide 9 Para Fd Regt letter No 408102/GNBR/x/A dt 29 Feb 2008 avoiding usual channels 50 (1) Para Bde (Convening authority/Fmn HQ) and HQ Central Command (A/DV) contrary to Notes Form 1, Notes Army Rule 26 and Para 462 of EME ROI. As per para 471 of Defence Services Regulations-1987 (rev edition), this JAG report valid for HQ Central Command only for review of summary Page 4 of 10 trial punishment by superior military authority. Using this DJAG report other than HQ Central Command for review was non-conformity, non-est and void in law. Then how EME Records was accepted this punishment of 'Severe Reprimand" and entered in my sheet roll on 17 Jan 2009 and placed in front of BOO DPC-2010 causing to declared unfit for Sub Maj Promotion due to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/P4/12/Unfit dt 18 Dec 2010?
(O) As per EME Records signal No A-4291 dt 13 Feb 2010, EME Records has not been received original summary Trial documents from 2 (1) Para Fd Wksp Coy, but your office filed an affidavit in front of Armed Forces Tribunal Regional Bench Chandigarh in OA No 127/2011 and informed to Dte Gen of EME vide letter No JC-754398A/SR/T-02/ER-5 dt 19 Jan 2011 that supporting documents received later on from 2 (1) Para Fd Wksp Coy vide letter No 22201/GNB/PC dt 29 Jan 2010. Why EME Records officials were mis- lead to Armed Forces Tribunal as well as to Dte Gen of EME and gave false report?
(p) As per EME Records letter No JC-754398A/SR/T-02/ER-5 dt 19 Jan 2011 and Affidavit filled in OA No 127/2011 at Armed Forces Tribunal Regional Bench Chandigarh, The CPIO furnished a reply to the Appellant on 28.03.2023 stating as under:
2. It is intimated that you have not sought any specific information as defined in Section 2 (f) of RTI Act-2005 in your application under reference. As per RTI Cell, IHQ of MoD (Army) letter No A/810027/RTI/Policy dated 16 Apr 2012 regarding guidelines for handling RTI applications, it is clarified that the term "Information" as defined in the RTI Act-2005 does not include answers to the question like why, what, when, how and whether amounting to seeking reasoning, clarification, interpretations, drawing inferences. PIO is not required to generate/ create any information on his own and neither empowered to redress any personal grievances, instruct any Agency / Office / Section to redress such grievances nor can he get the case processed. RTI Act is not a suitable mechanism to resolve redress any personal grievances. Hence, information regarding redress of any grievances correspondence may with concerned section of EME Records with mentioned specific subject/ particular requirement. Petition addressed to PIO, EME Records for redress of grievances will not be entertained.
Being dissatisfied, the appellant filed a First Appeal dated 04.04.2023. The FAA vide its order dated 06.05.2023. held as under.
Page 5 of 102. AND WHEREAS, the Public Information Officer, EME Records vide letter No 2708/RTI Cell/381 dated 28 Mar 2023 had rejected the ibid RTI application due to the appellant sought reason and clarification from the PIO which is not termed as information as defined in Section 2 (f) of RTI Act 2005. Under the RTI Act 2005, PIO to supply the available information through material forms and he is not generate/ create any information on his own and also in response to seeking answers, reasoning, interpretations, drawing inferences etc by the appellant.
3. AND WHEREAS, having been not satisfied with the reply of Public Information Officer EME Records, the appellant has preferred an appeal No Nil dated 04 Apr 2023 under the provisions of Sec 19 (1) of the said Act and stating that, "PIO EME Records has been declared my RTI application in to normal routine correspondence and denied to provide information".
4. AND NOW THEREFORE, after having perused the Appeal and verified the authenticity of information furnished to the applicant based on the documents/data provided by the section dealing with the case, I arrive at the following conclusions: -
(a) PIO, EME Records has correctly been rejected by the applicant RTI application dated 11 Mar 2023 in accordance with RTI Cell, IHQ of MoD (Army) letter No A/810027/RTI/Policy dated 16 Apr 2012 regarding guidelines for handling RTI applications, it is clarified that the term "Information" as defined in the RTI Act-2005 does not include answers to the question like why, what, when, how and whether amounting to seeking reasoning, clarification, interpretations, drawing inferences. The Public Information Officer is obliged to provide information which is available with or made available to him.
(b) As per RTI Cell, IHQ of MoD (Army) letter No A/810027/RTI/Policy dated 19 Mar 2010 that redressal of grievances, settlement of claims, allegation against superiors, clarification & explanation on existing policies incl AOs/Als, Information on ACR grading selection Bd and DPCs in Armed Forces Pers, do not constitute as information since which are either beyond the purview of RTI Act 2005 or as of now exempted from providing information under said Act.
(c) Clarification regarding summary punishment of the applicant has already been provided by NE-1 Section of EME Records vide letter No JC- 754398A/Misc/ T-7/NE-1 dated 08 Dec 2022 (Copy enclosed).
(d) PIO and Appellate Authority is not empowered to redress any personal grievances or instruct any Agency/Office / Section to redress such grievances nor can he get the case processed and also Page 6 of 10 clarification/justification/explanation does not fall under the ambit of RTI Act-2005.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: Present through Video-Conference.
Respondent: Shri T Senthil Kumar, PIO present through Video-Conference. The Appellant, during the hearing, reiterated the contents of his RTI application and instant appeal and submitted that till date no information has been provided to him by the Respondent. He further alleged that certain documents related to him are tampered in the Public Authority.
The Respondent while defending their case inter alia submitted that vide their letter dated 28.03.2023, they have informed the factual position in the matter to the Appellant. Further, the FAA had also upheld the reply given by the PIO.
Decision:
The Commission based on perusal of the facts on record finds that the dissatisfaction of the Appellant with the reply provided by the CPIO is bereft of merit as the RTI Application merely seeks for clarifications and answers to interrogative queries viz. "Then how EME Records was accepted this punishment of 'Severe Reprimand' and entered in my sheet roll on 17 Jan 2009 and placed in front of BO0 DPC-2010 causing to declared unfit for Sub Maj Promotion due to lack of disciplinary criteria intimated vide letter No 1412/DPC/CA1/P4/ 12/Unfit dt 18 Dec 2010? etc." Despite the fact, the Respondent has provided reply/information to the Appellant.
It is an admitted fact that the CPIO is only a communicator of information based on the records held in the office and hence, he cannot be expected to create information as per the desire of the Appellant. As per Section 2(f) of the RTI Act, the reasons/opinions/advises/rules can only be provided to the Page 7 of 10 applicants if it is available on record of the Public Authority. The CPIO cannot create information in the manner as sought by the Appellant.
For better understanding of the mandate of the RTI Act, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;.."
In this regard, the Appellant's attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it washeld as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Page 8 of 10 Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him...." (Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information."
(Emphasis Supplied) Page 9 of 10 In this regard, the Commission finds no infirmity in the reply of the CPIO as the same was found to be in consonance with the provisions of RTI Act.
No intervention of the Commission is required in the matter.
The appeal is disposed of accordingly.
Vinod Kumar Tiwari (विनोद कुमार वििारी) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (S. Anantharaman) Dy. Registrar 011- 26181927 Date Copy To:
The FAA, RTI Cell, EME Records, PIN - 900453, C/o 56 APO.Page 10 of 10
Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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