Central Information Commission
Sushil Kumar Agarwal vs Chief Commissioner Of Income Tax (Cca), ... on 1 October, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/CCITD/A/2017/148876-BJ
Mr. Sushil Kumar Agarwal,
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO & Dy. DIT (Vig.),
O/o Pr. DGIT (Vig.), Directorate General of Income Tax,
1st Floor, Dayal Singh Public Library Building,
1, Deen Dayal Upadhayaya Marg,
New Delhi 110002
... ितवादीगण /Respondent
Date of Hearing : 01.10.2018
Date of Decision : 01.10.2018
Date of RTI application 05.05.2017
CPIO's response 29/30.05.2017
Date of the First Appeal 09.06.2017
First Appellate Authority's response 07.07.2017
Date of diarised receipt of Appeal by the Commission 17.07.2017
ORDER
FACTS:
The Appellant vide his RTI application sought information on 03 points regarding Memorandum dated 27.04.2017 issued by CBDT, copy/ copies of the complete notesheet of the file through which the above referred matter was initiated in the office of the DGIT, entire correspondence / inspection reports / internal note from the date of initiation of the file till the date of issue of above referred memorandum and issues related thereto.
The CPIO and Dy. DIT (Vig.) vide its reply dated 29/30.05.2017 denied the information under Section 8 (1) (j) of the RTI Act. Dissatisfied with the response of the CPIO, the Appellant approached the FAA. The FAA and Addl. Director General (Vig.) vide order dated 07.07.2017 concurred with the reply of the CPIO.Page 1 of 5
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Sushil Kumar Agarwal (Retired as PCIT) in person;
Respondent Mr. Diwakar Singh, DDIT (Vig.);
The Appellant reiterated the contents of his RTI application and stated that the documents in relation to the chargesheet issued against him were not provided by the Respondent who erred while claiming exemption under Section 8(1)(j) of the RTI Act, 2005 as the information sought pertained to his own case. While understanding and appreciating that the information relating to Third Parties could not be disclosed under the RTI Act, 2005, the Appellant submitted that the entire correspondence / inspection report / internal notes from the date of initiation of the file, till the date of issuing the chargesheet should be provided to him taking into consideration the principles of natural justice in order to contest the matter before an appropriate forum. In its reply, the Respondent while referring to the reply of the CPIO/FAA stated that the sought information was confidential and apprehended that its disclosure could endanger the physical safety of the personnel who had dealt with the disciplinary proceedings and discourage and demoralize them to express their opinion in a free and fair manner. It was also submitted that all relevant details including the documents relied upon to prepare the chargesheet had already been provided to the Appellant in the Memorandum of Charge. In support of their contention, the Respondent also relied on the decisions of the Commission in Appeal No. CIC/AT/A/2008/00437 dated 31.10.2008 and CIC/RM/A/2014/001257 dated 07.05.2014. During the hearing, the Respondent while acknowledging that the approval of the competent authority was obtained prior to the issuance of the chargesheet, agreed to provide a copy of the same to the Appellant. On being queried by the Commission, whether he had approached any Court / Judicial or Quasi Judicial Forum in the matter, the Appellant replied in the affirmative and submitted that Hon'ble CAT had stayed the disciplinary proceedings against him and the next hearing in the matter was scheduled for October, 2018.
The Appellant vide his written submission dated 01.10.2017 requested to change his communication address to 501, Panchawati Apartment, Near Parle Tilak School, Hanuman Road, Vile Parle (E), Mumbai- 400057.
The Commission was in receipt of another written submission from the Appellant dated 01.10.2018 wherein it was stated that the Respondent had wrongly denied information.
Articulating further, it was stated that a show cause notice was issued to him after a gap of 08 years and that the charge-sheet was issued in an arbitrary manner. Furthermore, he got all his promotions in time and cited the decisions of the Hon'ble High Court Delhi in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 and Adesh Kumar v. UOI and Ors. W.P. (C) 3542/ 2014, in support of his contention. In addition a reference was also made to the decision of the CIC in the order passed on 05.09.2018 in Appeal No. CIC/CVCOM/A/2017/148874. Therefore, it was Page 2 of 5 emphatically submitted that the information sought could be provided to him. During the hearing, the Appellant furnished a copy of the above mentioned submission to the Respondent.
The Commission at the outset observed that while claiming exemption under Section 8 (1) (j) of the RTI Act, 2005, the preliminary requirement was to ascertain whether the information sought was personal information of a Third Party or not and if so whether any larger public interest was involved in the matter.
In this context, the Commission referred to the decision of the Hon'ble High Court of Kerala in Treesha Irish v. The CPIO and Ors. WP (C) No. 6532 of 2006 dated 30.08.2010 wherein it was held as under:
"23. There is no provision anywhere in the Act to the effect that information can be refused to be disclosed if no public interest is involved. Of course in a case of personal information, if it has no relationship with any public activity or interest, the information officer has discretion to refuse to disclose the same, if the larger public interest does not justify disclosure of such information. But on the ground of lack of public interest involved alone, the public information officer cannot refuse to disclose the information, without a finding first that the information is personal information having no relationship to any public activity or interest."
Moreover, the Hon'ble High Court of Delhi in the matter of Union of India vs. R.S. Khan WP (C) No. 9355 of 2009 and CM No. 7144 of 2009 dated 07.10.2010 held as under:
"This Court concurs with the view expressed by the CIC that in the context of a government servant performing official functions and making notes on a file about the performance or conduct of another officer, such noting cannot be said to be given to the government pursuant to a 'fiduciary relationship' with the government within the meaning of Section 8(1)(e) of RTI Act. The Union of India cannot rely upon Section 8(1)(e) of RTI Act, to deny information to the Petitioner in the present case. This Court finds no merits in any of the apprehensions expressed by the CPIO in the order rejecting the Respondent's application with reference to either Section 8(1)(g) of RTI Act. The disclosure of information sought by the Petitioner can hardly endanger the life or physical safety of any person. There must be some basis to invoke these provisions. It cannot be a mere apprehension. As regards Section 8(1)(j) of RTI Act, there is no question that nothings made in the files by government servants in discharge of their official functions is definitely a public activity and concerns the larger public interest. In the present case, Section 8(1)(j) of RTI Act was wrongly invoked by the CPIO and by the Appellate Authority to deny information to the Respondent."
Furthermore, in a recent decision the Hon'ble High Court of Delhi in its order dated 12.02.2018 in W.P.(C) 7845/2013 (Paras Nath Singh Vs. Union of India) had held as under:
10. The contention that notings made by a junior officer for use by his superiors is third party information, which requires compliance of Section 11 of the Act, is unmerited. Any noting made in the official records of the Government/Public Authority is information Page 3 of 5 belonging to the concerned Government/Public Authority. The question whether the information relates to a third party is to be determined by the nature of the information and not its source. The Government is not a natural person and all information contained in the official records of the Government / public authority is generated by individuals (whether employed with the Government or not) or other entities. Thus, the reasoning, that the notings or information generated by an employee during the course of his employment is his information and thus has to be treated as relating to a third party, is flawed.
11. Section 8 of the Act provides for exemption from disclosure of certain information and none of the provisions of Section 8 provide for blanket exemption that entitles the respondent to withhold all notings on a file.
It was also observed that as per Section 10 of the RTI Act, 2005 all such information relating to the name and designation of officers in the note sheets/ correspondences could be severed to provide the remaining information. In this context, a reference was made to the decision of the Hon'ble High Court of Delhi in its decision dated 7/10/2013 [W.P. (C) 4079/2013 Union Public Service Commission vs. G S Sandhu] wherein while observing that denial of notings altogether was not justified directed to block the name, designation or any other indication which disclose or tend to disclose the identity of author, it was held as under:
"11. In my view, the apprehension of the petitioner that if the identity of the author of the file notings is revealed by his name, designation or in any other manner, there is a possibility of such an employee being targeted, harassed and even intimidated by the persons against whom an adverse noting is recorded by him on the file of UPSC, is fully justified. Though, ultimately it is for the members of the UPSC who are to accept or reject such notings, this can hardly be disputed that the notings do play a vital role in the advice which UPSC ultimately renders to the concerned department. Therefore, the person against whom an adverse advice is given may hold the employee of UPSC recording a note adverse to him on the file, responsible for an adverse advice given by UPSC against him and may, therefore, harass and sometime even harm such an employee/officer of UPSC, directly or indirectly. To this extent, the officers of UPSC need to be protected. However, the purpose can be fully achieved by blocking the name, designation or any other indication which would disclose or tend to disclose the identity of the author of the noting. Denying the notings altogether would not be justified when the intended objective can be fully achieved by adopting such safeguards."
Furthermore, the Hon'ble High Court of Delhi in the decision of KVS v. CIC and Anr. W.P.(C) 6892/2009 dated 15.09.2009 while upholding the decision of the Commission had held as under:
"The only objection raised by the petitioner against the supply of statement of witnesses was under Section 8(1)(g) of the Right to Information Act, 2005. The said provision stipulates that information disclosure of which would endanger life and physical safety of any person or identity, the source of information or assistance given in confidence for law enforcement and security purposes need not be supplied. The Information Commissioner keeping in mind Section 8(1)(g) of the Right to Information Page 4 of 5 Act, 2005 has directed that the name of the witnesses need not be disclosed to the respondent No.2.
In fact the order passed by the Information Commissioner seeks to rely upon section 10, which permits withholding of certain portions of information by applying severability principle. The order of the Information Commissioner takes care of the apprehension of the petitioner."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Respondent to re-examine the RTI application and provide information to the Appellant pertaining to his own case after obliterating the details in respect of the name/ designation of the officers in the notesheets / correspondences and any other details relating to any Third Party, within a period of 15 days from the date of receipt of this order.
The Appeal stands disposed with the above direction.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 01.10.2018
Page 5 of 5