Central Information Commission
Tarun Kumar Bhattacharya vs Central Board Of Direct Taxes on 17 March, 2017
CENTRAL INFORMATION COMMISSION
2nd Floor, C-Wing, August Kranti Bhawan,
Bhikaji Cama Place, New Delhi -110066.
Tel: 011 - 26182597, 26182598
Email: [email protected]
Appeal No.:-CIC/BS/A/2016/001021-BJ
Appellant : Mr. Tarun Kumar Bhattacharya
House no. 5, Type-IV, Income Tax Colony,
Jalandhar-144003
M: 9530703923
Respondent : CPIO& Dy. DIT (Vig.)
O/o the DGIT (Vig.),
1st Floor, Dayal Singh Public Library Building,1,
Deen Dayal Upadhayaya Marg,
New Delhi-110002
Date of Hearing : 17.03.2017
Date of Decision : 17.03.2017
Date of filing of RTI applications 07.10.2015
CPIO's response 29.10.2015
Date of filing the First appeal 16.11.2015
First Appellate Authority's response 07.12.2015
Date of diarised receipt of complaint by the 15.03.2016
Commission
ORDER
FACTS:
The appellant vide his RTI application dated 07.10.2015 sought information on 06 points regarding whether seeking views on revocation/suspension from an outside Department like CBI is mandatory or optional, laws under which it was specified that it was mandatory to seek views of CBI before revocation/suspension, whether suspension was kept uniform in all cases till the completion of examination of prosecution witnesses in trial court by IT Department since 2005, if not, then the number of cases in which such procedure was not adopted, the criteria for charging a offence with a grave one, copy of minutes of meeting recorded by the Suspension Review Committee(SRC) and letter purportedly received by CBI for continuation of suspension and issues related thereto.
The CPIO vide its letter dated 29.10.2015 provided point wise response to the appellant. Dissatisfied by the reply of the CPIO, the appellant approached the FAA. The FAA vide its order dated 07.12.2015 upheld the reply of the CPIO.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Rajesh Bhardwaj, Representative of Appellant (M. 9958881658) in person and Mr. Tarun Kumar Bhattacharya (M: 9530703923) through VC;Page 1 of 4
Respondent: Ms. Pratibha Chaudhary, Dy. Director Income Tax and CPIO (M. 9013851288) in person;
The appellant reiterated the contents of his RTI application and stated that no satisfactory information was provided to him, till date. It was submitted that vide his RTI application he had sought information whether seeking views on revocation /suspension from Departments like CBI is mandatory or optional, laws under which it was specified that it is mandatory to seek views of CBI before revocation/suspension, whether uniformity was maintained in all suspension cases, etc. In reply, the respondent submitted that the information sought in point no. 1 and 2 related to "opinion" which did not fall within the purview of definition of information as per section 2 (f) of the RTI Act, 2005. It was emphatically argued that seeking opinions/advices are not covered in the definition of Section 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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 support of its contention, the respondent also drew reference to the decision of the Hon'ble Supreme Court of India in CBSE & Anr. Vs. Aditya Bandopadhyay & Ors, SLP(C) NO. 7526/2009 wherein it was held as under:
35..... "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."
As regards point no. 3, 4 and 5 of the application, it was submitted that the queries sought did not pertain to them and hence were transferred under Section 6 (3) of the RTI Act, 2005 to Under Secretary (V and L), CBDT, New Delhi. On point no. 6, it was submitted that CBI was an exempted organization as per Section 24 R/w Second Schedule to the RTI Act, 2005. Thus, reply on each of the points had been furnished to the Appellant.
The Commission observed that the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."Page 2 of 4
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the 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."
Furthermore, The High Court of Bombay in Dr. Celsa Pinto, Ex-Officio Joint Secretary (School Education) vs The Goa State Information Commission on 3 April, 2008 (2008 (110) Bom L R 1238) had held as under:
"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."
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."
The High court of Madras in W.P.No.26781 of 2013 & M.P.No.1 of 2013(The Public Information Officer And others v. The Central Information Commission) decided on 17.9.2014 held as under:
"Before we go into the merits of the case, let us consider the relevant provisions of the RTI Act for the purpose of deciding this case, which read as follows: The RTI Act defines "information" under Section 2(f) as follows: "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." Likewise, it defines "right to information" under Section 2(j) as follows: "right to information" means the right to Page 3 of 4 information accessible under this Act which is held by or under the control of any public authority and includes the right to-(i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.
In the decision reported in 2010 (2) SCC 1 (Khanapuram Gandaiah Vs. Administrative Officer), the Honourable Supreme Court has observed that the applicant under the RTI Act cannot ask for any information as to why such opinions, advices, circulars, orders, etc., have been passed.
In 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), the Honourable Supreme Court, while quoting the earlier decision reported in 2004 (2) SCC 476 (People's Union for Civil Liberties Vs. Union of India), held that the "right to information" is a facet of the freedom of "speech and expression", as contained in Article 19(1)(a) of the Constitution of India and such a right is subject to any reasonable restriction in the interest of the security of the State and subject to exemptions and exceptions."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, no further intervention of the Commission is warranted in the matter.
The appeal stands disposed accordingly.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Page 4 of 4