Central Information Commission
Hc/M Deepak Tiwari vs Central Reserve Police Force, (Crpf) on 30 October, 2009
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2008/001347 dated 29-7-2008
Right to Information Act 2005 - Section 19
Appellant: HC/M Deepak Tiwari,
Respondent: Central Reserve Police Force, (CRPF)
Announced 30.10.'09
FACTS
By an application of 19-10-07 HC/M Deepak Tiwari of Dhangir, District Rohtas, Bihar applied to the CPIO, ADIGP (ADM), Directorate General, CRPF seeking information on 38 questions arising out of the following:
"The undersigned may be provided the certified copy with full detail of the following information/ documents / telegrams etc under circular order No. 01/2007 & RTI Act-2005 of CRPF so that discrepancies in appointment of Constables during the months September- December 2005 at 29BN.CRPF Kokrajhar, Assam may be resolved. In this case the money was taken illegally from the applicants who came for posting of Constable/ GD. This was established in the enquiry of Ujjain Kumari Kapri (11 Battalion) under order No. 050110029 HV (M)/ (clerk). After that it was tried to hide this matter by some officers of CRPF and we were booked in false criminal case and we were tortured physically and mentally like not providing food in the mess, beating, snatching important documents, curtailment in freedom to move, forcibly trying to know my email ID, abusing which has violated sections 01 to 08, 10 to 11, 19, 22 to 26 and section 29 of Human Right Commission. By this Act they have also violated sections 303, 173 (B), 207, 208, 238, 243 and 314 of Cr. P.C. and they have worked against sections 101 to 104 of evidence Act which has spoiled my career and till now I have been put to a loss of Rs. 2.00 lakhs."
On not receiving a response Shri Deepak Tiwari moved an appeal before Shri S.R. Ojha, DIG, CRPF referring to the receipt of an order of CPIO of 23-10-07, upon which Shri Ojha in his order of 31-5-08 has informed appellant HC/Major Deepak Tiwari as follows:
"This is to inform you that the information has been sought from concerned Battalion/Office on your appeal. After receipt of this, you will be informed accordingly."
HC. Major Deepak Tiwari then moved his second appeal before us with the following prayer:
11. "Please give appropriate directions to my department for giving answer to all my 38 questions (in Appendix-A) of my appeal dated 23-10-07 sent to CPIO.
2. Please give appropriate directions to my department for providing certified copies of all necessary documents asked (in Appendix-B) of my appeal dated 23-10-07 sent to CPIO.
3. In my case my department has caused undue delay which has caused me mental and economic loss and for this also my department may be given appropriate directions and erring officers be penalised u/s 20 of the RTI Act 2005.
4. In addition to above, whatever directions are appropriate on the part of Hon'ble CIC they may also be given, so that in future this type of mal practice is stopped."
Appended with this appeal petition is a further list of seven questions as below:
1. Acting just reverse, why was a criminal Case lodged against me and on what basis and facts, whereas the deep rooted corruption was exposed by me in the recruitment of constables/GD during month of September 2005 to December 2005.
2. What action was taken regarding the application submitted to commandant -29? Why was I not informed regarding the action if taken?
3. Despite the fact that in course of initial enquiry main accused Hawaldar M. Ujjain Kumar Kapari (11th Battalion) framed comparatively more severe charges against Hawaldar Pankaj Kumar and Yashpal Singh (80th Battalion) than me, on what basis and facts Commandant Shri Narendra Singh (Enquiry Officer) in first paragraph of his primary findings framed charges against me?
4. I submitted about 12 to 13 dubious letters along with my application dated 16-01-2006 to the Commandant-29 Shri Niraj Kumar for conducting enquiry, then why did enquiry officer Commandant Narendra Singh send only two letters exhibit No. 4 and 9 for forensic test? Whereas, all letters including officials/employees concerned with the recruitment should have been sent for forensic test. What is the reason for not doing so?
5. I submitted an application addressing Commandant 29 on 10-07-2006 which photocopies were sent to Ministry of Home Affairs including all apex offices. What action was taken on that and why was I not informed regarding the action taken till now whereas one and half years have gone?2
6. On what basis Commandant Narendra Singh framed following charges against me in his last conclusion of investigation:-
"Hawaldar Ujjain Kumar Kapari was involved during the whole recruitment process of constables/ GD, prepared a plan with Hawaldar Deepak Tiwari and took money from candidates."
What is the main basis of framing above mentioned charges? I may be informed because all senior officials misguided by such false charges.
7. Despite the fact when enquiry officer in paragraph 2 of final report has stated "no important documents have been received against Hawaldar Deepak Tiwari and Yashpal Singh. Hawaldar Ujjain Kumar Kapari has allegated (sic) (sic) (sic) them only." why did Commandant Shri Narendra Singh misguided apex offices, I may be informed?"
This appeal was followed by a complaint of 6-4-09 seeking an early hearing submitting as follows:
"When no action was taken on my application dated 19.10.2007 by CPIO, Directorate, CGO, Complex, Lodhi Road, New Delhi then I made an appeal vide letter dated 28.4.2008 to the appellate authority, DIG (Admn.) Directorate, CGO, Complex, Lodhi Road, New Delhi.
On my appeal also no action was taken and no information/ document was provided."
The appeal was heard through video-conference on 30-10-2009. The following are present.
Appellant at NIC Studio, Bihar Hav. Maj. Deepak Tiwari Respondents Shri S. R. Ojha, DIGP (ADM)/CPIO Shri Sanjeev Dhundia, DIGP (Cr& Vig.) Shri Y. N. Rai, Second-in- command Shri R. K. Rao, Inspector.
Shri Om Prakash, ASI.
The issues before us are as follows:
i) In his response to the first appeal Appellate Authority Shri Ojha, DIG had in his letter of 30-5-08 promised to provide the information sought to appellant. The issue is what became of this promise?
ii) Appellant Shri Deepak Tiwari has raised seven fresh questions in his second appeal. This is not permissible. Under the RTI Act the 3 request for information is to be addressed only to CPIO, who can indeed seek the assistance of any other in providing the information sought, appellate authorities both first and second adjudicate upon whether the information provided in response is as mandated by the law or not.
iii) The issue here is whether there has been a delay in responding to the application of 19-10-07 thus calling for a penalty u/s 20 (1) or indeed whether the appellant Shri Tiwari has as a result of such delay been inflicted with loss or detriment warranting compensation u/s 19 (8) (1) (b) of the RTI Act 2005.
CPIO Shri S.R. Ojha, DIG (P) submitted a booklet compiling the entire processing of the case of Shri Deepak Tiwari. He submitted that a response to the application of 19-10-07 has, in fact, been sent by Shri Ramesh Chandra, Addl. Police DIG dated 6.11.'07 informing the appellant Shri Deepak Tiwari as follows:
"Because the information sought by you relates to allegation of corruption and human rights violation so parawise comments are being sought from concerned battalion. So that the correct position is known regarding your allegations and after that necessary action will be taken."
Subsequently, a detailed reply has, in fact, been sent on 23-10-08 responding to the complete information sought which has also acted as a compliance to his own assurance in his decision of first appeal dated 30-5-08 that the information had been called for and would be provided when obtained. In addition through his own letter of 31-7-08 Shri S.R. Ojha had informed appellant Shri Deepak Tiwari as follows:
"In this connection by letter of CPIO even No. dated 6.11.2007 and 11.2.2008 of this office you have been informed that under section 24 (1) of RTI Act this Act does not apply to Security Organisations. Even then your questions were deeply studied by the concerned battalion and officers. This has also come to light that your complaint against 29 battalion CRPF, Kokrajhar, Assam for appointment of constable / GD by illegal means taking money illegally and leave without permission and direct correspondence with senior officer and laziness in duty are also lying pending for departmental enquiry. So the information/ document if provided to you can affect the departmental enquiry. For that purposes you are also given interview before DG, 4 Additional DG, Police DIG (Personnel) and Police Inspector General, Srinagar and the action taken on your applications has also been replied to you from time to time. Even then if you need any information/ document against the departmental enquiry continuing against you so you can contact the concerned officer."
Appellant on the other hand disputed some of the information sought which Shri Y.N. Rai, 2-i-C who was also present was able to identify in the booklet that is provided by DIG Shri Ojha as having been supplied.
Appellant Tiwari, however, stated that the information which should have been given to him within 30 days has taken more than a year to be supplied which has resulted in his losing an opportunity for appointment and therefore, suffering detriment since no NOC was issued by the Organisation enabling him to seek further employment. In this context Shri Y.N. Rai invited our attention to the OM issued by the Ministry of Personnel, Public Grievances & Pensions No. 42015/4/78-CSTT( C) dated 1-1-1979 under which NOC may not been issued to an employee who is facing a disciplinary enquiry. In the present case there were two investigations pending against the appellant Shri Deepak Tiwari.
DECISION NOTICE It is correct that the CRPF is listed at serial No. 10 of Second Schedule of the RTI Act and is, therefore, not covered by the RTI Act. Nevertheless, it would be wise for the organisation to establish an infrastructure to deal with cases under the RTI Act as and when received. In the present case the delay in providing the complete response to application of Shri Deepak Tiwari has two causes:
(i) A Decision of this Commission dated 7.7.'06 SK Nagarwal vs. CVC of ordering that information regarding cases under investigation need not be disclosed u/s 8 (1) (h)
(ii) The information had to be obtained from a Battalion located at some distance from the Hqrs, hence the delay in compiling, collating and forwarding this information.5
We find on examination of the record that there is also a letter of 26-10-07 from AD, IGP (Admn.) Shri M.K. Sinha giving parawise comments on the application of 19-10-07 of Shri Deepak Tiwari. A copy of this report has not been endorsed to appellant. The plea, therefore, that obtaining the information from the Battalion took a whole year cannot hold. Besides, respondent has taken the plea of a Decision by this Commission regarding disclosure of information in light of exemption allowed u/s 8(1) (h). In this matter the judgment of the Delhi High Court in W.P.(C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors is of relevance, since it deals with the application of sec. 8(1)(h) :
11. "The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assured by Article 19, everyone the right "to seek, receive and impart information and ideas through any media, regardless of frontiers". In Secretary Ministry of Information and Broadcasting, Govt. of India and others vs. Cricket Association of Bengal and others (1995 (2) SCC 161) the Supreme Court remarked about this right in the following terms:
"The right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an "aware" citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizen to arrive at informed judgment on all issues touching them."
In applying the provisions of Sec 8 (1) (h) this Decion will spuerced all earlier decisions of this Commission on the subject. At any rate, the information subsequently provided has not been withheld on this ground. However, we also find confusion in the pursuit of his case by appellant Shri Deepak Tiwari. He has insisted before us that CPIO replied to him is of 23- 10-08 but the same has been referred to as the reply of 23-10-07 in the first appeal which itself is dated 28-4-08. Clearly a response of 23-10-08 could not have found reference in an appeal of 28-4-08.
On the basis of above we decide as follows:
6Issue No. (i): We find that, in fact, the application of 19-10-07 has been responded on 6-11-07. There has been no delay calling for invocation of penalty u/s 20 (1). Besides, the promise of Appellate Authority Shri Ojha to provide the remaining information after obtaining the same from the Battalion Hqrs. has been redeemed but there has been an unexplained time lag between the receipt of this information and its forwarding to appellant Shri Deepak Tiwari.
A copy of the booklet submitted by respondents before us in the hearing, which contains the entire correspondence including file noting and details of information provided, is attached with this decision notice for supply to appellant. This will address each of the issues raised by him in appeal.
Issue No. (ii): Although, appellant was asked repeatedly whether he would like his questions in second appeal to be treated as a fresh application, he has not pressed for the same. This issue is dropped.
Issue No. (iii): As discussed, against issue No.1, there is no case for penalty. However, on the question of compensation, although, it may be admitted that because there was enquiry pending against Shri Deepak Tiwari no NOC could at any rate have been issued, the fact is that there has been undue delay in providing the information received as observed by us above. For this reason a token amount of Rs. 2,500/- will be paid to appellant HM/C Deepak Tiwari by the CRPF to cover his expenses within 15 working days from the date of receipt of this decision notice. This disposes of Issue No (iii) Announced, except for the decision on issue No. (iii) in the hearing, announced subsequently on the same date. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 30-10-2009 7 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.
(Pankaj K.P. Shreyaskar) Joint Registrar 30-10-2009 8