Central Information Commission
Abhijit Bhawal vs Ministry Of Environment & Forests on 22 July, 2020
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: CIC/MOENF/A/2019/157622
In the matter of:
Abhijit Bhawal
... Appellant
VS
CPIO / Under Secretary,
Ministry of Environment , Forest & Climate Change(MoEF&CC),
FE Division, Indira Paryavaran Bhawan, 6th Floor,
Jal Wing, Aligang, Jorbag Road,
New Delhi-110003
...Respondent
RTI application filed on : 18/09/2019 CPIO replied on : 21/10/2019 First appeal filed on : 24/10/2019 First Appellate Authority order : 15/11/2019 Second Appeal dated : 28/11/2019 Date of Hearing : 21/07/2020 Date of Decision : 21/07/2020 The following were present: Appellant: Present over phone
Respondent: Mr. Mahender Yadav, CPIO, FE Div; present over phone Information Sought:
The appellant has sought information with reference to the FE Division's order No. 4-3/2013-FE dated 16th September, 2019 through which the appellant has been placed under suspension.
- Provide copy of all the noting pages of the file from which the suspension order of the appellant has been issued.1
Grounds for Second Appeal The CPIO has denied the information under section 8(1)(h) of the RTI Act.
Submissions made by Appellant and Respondent during Hearing:
The appellant submitted that the denial of information u/s 8(1)(h) of the RTI Act was not proper.
The CPIO explained that the inquiry is incomplete and the disclosure of information may impede the disciplinary proceeding. He further submitted that during the disciplinary proceedings as per the CCS rules the required documents related to him will be given. To substantiate his claim he relied on a decision of the earlier bench of the Commission dated 14.01.2019 in case no. CIC/POST/A/2018/159728.
The appellant in his second appeal contested the reply of the CPIO and pleaded that the denial of the information u/s 8(1)(h) of the RTI Act is not justified. He further submitted that he has been placed under suspension w.e.f 17.09.2019 by the MoEF Delhi. As per office procedure the matter of placing under suspension of any officer has to be examined by the concerned Section in view of the extant CCS (CCA) Rules 1965 and other Government instructions and guidelines and the facts of the case. In his case, the opposite thing has happened. In response to a fictitious and ill motivated report of death of 245 animals in NZP, he came to know from a number of newspaper reports that Hon'ble Minister of State, Environment Forest and Climate Change had given a statement about his suspension in the near future.As a result he was placed under suspension. He further contested that this is enough to presume that he was not placed under suspension following the proper procedure and guidelines. Hence, he sought the copy of the notesheet that ultimately led to his suspension with the approval of the competent authority. He also summed up stating that refusal of information by both the CPIO and the FAA in a blunt manner substantiates his above suspicion.2
He submitted that in this case there is no investigation being conducted by the Ministry. The content of the charges that they are yet to serve him has nothing to do with the grounds of suspension. Not all the disciplinary cases are initiated after placing the charged officer under suspension. Hence, it is very clear that Sec 8(1)(h) is not applicable in this case and that disclosure of the causes of the suspension, narrated in the concerned notesheet no way hampers the oral inquiry in the disciplinary proceedings.
Observations:
On a perusal of the order relied upon by the CPIO, it was noted that the Commission vide order dated 14.01.2019 in case no. CIC/POST/A/2018/159728 had held as follows:
"5. The respondent submitted that though the chargesheet has been issued, enquiry is yet to attain completion. Hence, disclosure of information at this stage is likely to impede the disciplinary proceedings. He further stated that the information sought by the appellant is of composite nature because disciplinary action has been initiated against a group of 10-12 accused persons. Since the Enquiry in the case is still pending against some of the accused and the Disciplinary proceedings are yet to be completed, hence divulging information to any one of the co-accused is likely to impede the disciplinary proceedings against the accused. Hence, the information sought for was denied under Section 8(1)(h) of the RTI Act.
Decision:
6. The Commission, after hearing the submissions of both the parties and perusing the records, observes that the Commission in the case of Shankar Sharma & Ors. vs. DGIT [CIC/AT/A/2007/0007, 10 & 11] observed that :3
".....17. ..... the term 'investigation' used in Section 8(1)(h) , in the context of this Act should be interpreted broadly and liberally. We cannot import into RTI Act the technical definition of 'investigation' one finds in Criminal Law. Here, investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on. Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken. In that sense, an investigation can be an extended investigation........The respondents are, therefore, right in holding that it would be a misnomer to hold that investigation in matters such as this, the moment the Investigating Officer submits his report to the competent authority spells the end of investigation."
7. Furthermore, the Commission in the decision of K.S. Prasad vs SEBI CIC/AT/A/2007/007/00234 had held as under:
"...as soon as an investigation or an enquiry by a subordinate Enquiry Officer in Civil and Administrative matters comes to an end and, the investigation report is submitted to a higher authority, it cannot be said to be the end of investigation.... which can be truly said to be concluded only with the decision by the competent authority."
Thus the above ratio clearly indicates that the term "investigation" used in the Section 8(1)(h) of the RTI Act requires a wider interpretation and shall be read as inclusive of an enquiry conducted during disciplinary proceedings.
48. It is further noted that this Commission had discussed a similar issue and adjudicated the query of similar nature in the case of Govind Jha v. Army HQs, [CIC/AT/A/2006/00039 dated 01.06.2006], holding as hereunder:
".....although the rules of disciplinary proceedings provide for disclosure of all documents and information which constitute the basis for the disciplinary action against an employee, yet such employees demand additional information pertaining to them through the RTI Act. These demands are mostly about disclosure of file-notings and other materials which otherwise would not be available to the employee under the Disciplinary Proceedings Rules. It has been the consistent position of the Commission that a disciplinary enquiry assumes the characteristics of an ongoing investigation and the material thereof cannot be disclosed under Section 8(1)(h) of the RTI Act."
9. Likewise, in the case of Shri P.K. Saha v. Shri D.B. Janotkar, General Manager (A&EE) & PIO, Mahanadi Coalfields Limited, CIC/AT/A/2007/00333 dated 17.08.2007, this Commission had held as under:
"When a specific law lays down the scope and the range of information to be disclosed to a person facing specified action at the hands of a public authority, it will be a sure interference with the process of investigation under that specific law if the affected person, or anybody else in his place, is allowed under the RTI Act to access a larger range of information than would be otherwise authorized."5
10. The Commission while deciding the case of V.K. Gulati Vs. DG Vig. Customs & Central Excise; [CIC/AT/A/2007/01508; Date of Decision:
17.06.2007], had taken the view that:
"5. ..... disclosure of information relating to ongoing disciplinary proceedings, which are in the nature of ongoing investigations, will have the impact of compromising those proceedings and restricting the discretion of the Enquiry Officer to decide as to what documents the officer proceeded against will have access to. Since departmental enquiry is in the nature of ongoing investigation, it is covered by Section 8(1)(h) of the RTI Act. The only element which needs to be proved is whether the requested disclosure would impede the process of investigation. It has been the view of the Commission that such disclosures would impede the process of investigation in so far as these would affect the ability of the Enquiry Officer to conduct and regulate the extant departmental proceeding. It is also true that during any preliminary enquiry, a number of witnesses are examined and information is collected. Disclosure of this variety of information would undoubtedly bring out into the open its sources, which will be injurious to the interests of those who offer their assistance to the preliminary enquiry in the confidence that their identity would not be disclosed.
6. Commission has noted that a number of employees of the public authorities facing departmental/vigilance and other forms of proceedings from their respective managements have tended to use the RTI Act to access information ⎯ specially file notings in their own vigilance matters / disciplinary matters ⎯ in order to somehow lay hands on evidence that they could use in their favour. Commission has no 6 problem with such an approach but since premature disclosure of information, specially file notings, prior to the final decision being made in a disciplinary action has the potential to disrupt the proceedings, Commission has been guarded in authorizing such disclosures. The RTI Act, apart from being a rights expanding instrument, it is also an instrument for improving governance. In that sense, it is always helpful to be guarded in interfering with the disciplinary proceedings, through which the managements enforce discipline within the organization and bring the guilty employees to book. Most disciplinary proceedings are under laws, which prescribe the processes of the proceeding such as the documents that can be disclosed to the officer proceeded against, the discretion of the enquiry officers to decide what documents to be disclosed to the accused officers in conformity with the norms of justice and fairplay and so on. Each time an RTI proceeding is started to force disclosure of documents, regardless of what the enquiry officers may have to say on this, potentially the process of the enquiry is impeded. Considering its large ramification, it is unsafe to authorize disclosure of such information under the RTI Act."
11. This Commision also observes that the Delhi High Court's decision dated 10.11.2006, passed in W. P. (C) No. 16712/2006 in Surinder Pal Singh vs. UOI & Ors., has held is as follows:
".....Since the chargesheet has been filed, the process of investigation has been completed but the petitioner cannot contend that there is no apprehension with the respondent that the information sought by the petitioner may impede the prosecution of the offender. Whether the respondents 7 have apprehension or not is to be decided by the respondents in the present facts and circumstances. The apprehension of the respondents is not without any basis. In any case the prosecution of the offender is pending. Since prosecution of the offender is pending and has not been completed, it can not be inferred that divulgence of information will not impede the prosecution of the offender. The respondents, therefore, are justified in claiming exemption under Section 8 (1) (h) from disclosure of information sought by the petitioner..."
12. In the light of the aforementioned settled position of law, this Commission is of the considered opinion that the contention of the respondent is found reasonable and there appears no reason to interfere with the same. The appellant is at liberty to obtain necessary information from the Disciplinary Authority at the appropriate stage, which as a matter of legal norm is anyway made available to the accused to prove his innocence."
Based on a perusal of the record, it was noted that the CPIO vide letter dated 21.10.2019 replied that the information sought by the appellant cannot be given u/s 8(1)(h) of the RTI Act. The appellant being aggrieved with the reply filed a first appeal. The FAA vide order dated 15.11.2019 held as follows:
"....................As such the CPIO had replied to the RTI application well within the time limit of 30 days. Information as sought by the appellant comes within the ambit of the exemptions under the provisions of Sec 8 of the RTI Act, 2005 since the information is having relation with the process of investigation and its disclosure would impede the process. It may be mention here that as per order dated 16.09.2019 the grounds of 8 suspension in appellant's case are contemplated disciplinary proceeding against him. The memorandum of charges/chargesheet is being finalized and would be communicated to the appellant soon."
Decision:
Having heard both the parties, and after considering the contentions of the CPIO and the rulings of the Commission in a similar subject matter, this bench finds no ground to intervene with the CPIO's reply. Therefore, the reply is considered proper and no further action lies.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सच ू ना आय! ु त) Authenticated true copy (अ भ मा णत स या पत त) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011- 26182594 / दनांक / Date 9