Central Information Commission
Sanjay Kumar Yadav vs Cbdt Director (Itcc) on 20 February, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नईिद ी, New Delhi - 110067
File No : CIC/CBDTD/A/2022/619389
Sanjay Kumar Yadav ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
O/o Additional Commissioner of
Income Tax-ITAT-2, RTI Cell,
7th Floor, 'A' Wing, CGO Complex,
Seminary Hills, Nagpur - 440006,
Maharashtra. .... ितवादीगण /Respondent
Date of Hearing : 09/02/2023
Date of Decision : 09/02/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 16/11/2021
CPIO replied on : 07/12/2021
First appeal filed on : 24/12/2021
First Appellate Authority's order : 28/01/2022
2nd Appeal/Complaint dated : NIL
Information sought:
The Appellant filed an RTI application dated 16.11.2021 seeking the following information:
(f) Certified copy of forwarding letter dated 07.05.2015 written by Shri S C Nimodia, the then ITO (HQ)(Admn)-2, office the principal commissioner of Income Tax-2, Nagpur, written to the Joint Commissioner of Income Tax, Wardha Range, Wardha, vide f.No. PR.CIT-2/NGP/DSO/2015-16 regarding forwarding papers sent 1 by CBI for grant of Sanction against Sanjay Kumar Yadav, then Tax Assistant, Yavatmal office in the trap case against him.
(g)All annexures and documents, enclosed alongwith the above said letter, including the letter dated 01.05.2015/1925 to the CIT-1, Chief Vigilance Officer by Superintendent of Police, CBI-ACB, Nagpur.
(h)Letter dated 01.05.2015/1924 from the same Superintendent of police, CBI, Nagpur written to Commissioner of Income Tax-1, Chief Vigilance Officer, Nagpur.
(i)The accompanying CBI report in RC15 (A)/2014-15-NGP.
(j)Draft Sanction Order sent by CBI to Income Tax Department.
The CPIO furnished a reply to the appellant on 07.12.2021 stating as under
"The departmental enquiry proceedings and court proceedings are in progress in this case. This information is confidential in nature and fall under section 8(1)(h) and barred from disclosure.
Further, the information sought is pertaining to the applicant himself and hence personal in nature. These documents have no relationship with public activity or interest. The matter is personal in nature and attracts exemption under sec. 8(1)(j) of the RTI Act. Disclosure of this information would prejudice public interest and therefore attract bar under sec. 8(1)(j) r.w.s. 123, 124, 125 of Indian Evidence Act, 1872.
As the appellant failed to cite any public interest that could commend superseding in interest of public in the matter of disclosure with the meaning sec. 11(1) of RTI Act and hence rejected. The disclosure of information is therefore exempted under sec. 8(1)(j) and 8(1)(h).
In the case of Sarvesh Kaushal Vs. F.C.I. and others (Appeal Nos. 243/ICPB/2006 and 244/ICPF/2006, dated 27.12.2006), the appellant had applied for documents relating to the departmental enquiry launched against him in a corruption case. -21- DECISION: The CIC, rejecting the appeal, held that the departmental enquiry, which was in progress against him, was a pending investigation under law, and the same attracted the provisions of sec. 8(1)(h). Therefore, there is no question of disclosing any information relating to his prosecution, the CIC noted."2
Being dissatisfied, the appellant filed a First Appeal dated 24.12.2021. FAA's order dated 28.01.2022, upheld the reply of CPIO stating as under:
"7.1 The information sought by the appellant has been stated in para 2 above. It is noticed that the information sought at sr.no 2 to 5 is the correspondence of CBI with the Income Tax Department. The letter at sr. no. 1 is a letter forwarding the information mentioned at Sr. no. 2 to the Disciplinary Authority.
7.2 It is settled law that CBI is exempt from RT1 Act as per provisions of section 24(1) of the RT1 Act, being a specified organization in the 2nd Schedule to the RT1 Act. This aspect of disclosure of information from CBI was subject matter of consideration by the CIC in the decision no C1C/SB/A/2016/000821 dated 14.03.2017 in the case of K Nagaraj Vs CPIO, Min. of Home Affairs. The Hon. CIC directed that information at Sr.No.6 should be provided after redaction of information submitted by the CBI to MHA in this regard. The point to be noted here is that the Hon. CIC having noticed that no doubt the CPIO has to demonstrate that providing information would impede investigation/prosecution, has also taken cognizance of the exemption of section 24(1) applicable to CBI. Therefore, in the facts of the matter, the Hon. CIC directed the CPIO to provide the information after redacting the information provided by CIC. In other words, the information received from CB1 was denied by Hon. CIC.
7.3 In the present case, the entire information sought is the information/correspondence received from CBI. Therefore, judicial discipline demands that the ratio of the decision of CIC has to be followed. Accordingly, I uphold the decision of CPIO in denying the information sought.
7.4 Once it is held that the information cannot be disclosed in view of provisions of section 24(1), the alternate arguments of application of provisions of section 8(1)(h)/8(1)(j)/11(1) would become academic and infructous and therefore not adjudicated.
8. In view of the foregoing, the appellant's petition for providing information as discussed in preceding paras cannot be acceded to and therefore appeal is rejected."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Represented by Advocate Narendra through video conference. Respondent: Vijay Subramanian, JCIT & CPIO present through video conference.3
The Rep. of the Appellant reiterated the queries in the RTI Application and stated on the lines of his written arguments submitted vide letter dated 03.02.2023 as under:
"4) The FAA instead of deciding on the claim of exemptions raised by the CPIO, arbitrarily invoked the provisions of section 24 of the Act to confirm rejection of the claim. The FAA did not give an opportunity of hearing to the applicant after disclosing her intention to invoke section 24. Thus, the right of a fair hearing has been compromised in the 1st appeal proceeding.
5) As regards the section 24 exemption claimed by the FAA is concerned, it applies to Intelligence and security organizations or any information furnished by such organizations to the Government. Proviso to section 24 takes out of the purview of exemption information relating to corruption and human rights violations.
6) If the list of organizations included in the second schedule is perused it will be seen that it includes,
a) Agencies protecting borders of India
b) Agencies engaged in gathering intelligence about activities which are likely to undermine the sovereignty, integrity and economic stability of India.
7) CBI is the only organization included in it, which carries out normal policing work of crime detection and prevention, apart from some incidental Intelligence and security related functions.
8) The section further qualifies exemption to the extent of information furnished by such organizations to the government.
9) Admittedly the applicant is facing a departmental enquiry on the perceived charges of conduct unbecoming of a government servant, evidence of which is gathered by the CBI.
10) In the circumstances the material gathered by the CBI against the applicant cannot be linked to the breach of integrity, sovereignty & security of the Union of India to claim exemption u/s 24.
11) The correspondence between a Superintendent of Police in CBI with the Vigilance Officer of the local Income Tax Office cannot be classified as the information provided by the CBI to the Government of India. On the contrary information relates to alleged offenses under the Prevention of Corruption Act for which no exemption is provided in the Act.
12) Moreover, the information that has been asked for relates to the correspondence made by the officers of the Income Tax Department with one another and the FAA cannot claim that the exemption under section 24 would be applicable to this internal correspondence.
13) Further it should be appreciated that when a communication made reaches the person, for whom it is intended, it becomes the property of that 4 person/ organization to which it was addressed. Since in this case it is the record of the Income Tax Department that is being asked under the RTI, the Income Tax Department cannot claim exemption under section 24.
14) It is a well-established fact that charges against the government servant arise out of his actions within the contours of his duty. Therefore, strands of defences would also be available at his place of duty, which is under the control of authorities.
15) Departmental enquiry at the instance of a department is non adversarial in nature, hence the department is duty bound to provide access to the pieces of defences available under its control to the charged official to clear his name in a fair and honourable manner.
16) In view of the facts and circumstances of the case the claim of exemption under Section 8 or under section 24 of the RTI Act is not available to the authorities in the Income Tax Department. Therefore, it is hereby prayed that the direction may kindly be given to the authorities to make available to the applicant, documents as requested by him under the RTI Act."
The CPIO reiterated the denial of the information by the CPIO and contents of the FAA's order. He further submitted that trial process is ongoing in the CBI Court and departmental proceedings are still under process.
The Rep. of Appellant interjected that chargesheet has been filed and majority of witnesses have been recorded so the investigation part is over and even the department proceeding is based on the said chargesheet itself therefore disclosure of the information sought for in the RTI Application cannot be said to be impeding any investigation now.
Decision:
The Commission based on a perusal of the facts on record and upon hearing the contentions of the parties observes that the Appellant has admitted that - 'the applicant is facing a departmental enquiry on the perceived charges of conduct unbecoming of a government servant, evidence of which is gathered by the CBI', in other words, the factum of a pending prosecution has not been denied by the Appellant and considering the nature of documents sought for by the Appellant, it is not out of place for the CPIO to invoke Section 8(1)(h) of the RTI Act for the denial of the information as these are predominantly substantial records of the alleged investigation conducted against the Appellant. Moreover, it is not the case that the exemption of Section 8(1)(h) of the RTI Act only provides for exemption when an inquiry/investigation is pending, for the sake of clarity, Section 8(1)(h) of the RTI Act is reproduced hereunder:5
"(h) information which would impede the process of investigation or apprehension or prosecution of offenders;"
Section 8(1)(h) of the RTI Act thus provides for more than one aspect of an inquiry/investigation and since in the instant case, the prosecution is pending in the criminal case and investigation in the disciplinary proceedings is only underway, the impediment to the process thereof by the disclosure of "all" annexures & documents enclosed with the letter of grant of sanction; CBI report etc., cannot be ruled out in its entirety.
Having observed as above, the Commission upholds the denial of the information under Section 8(1)(h) of the RTI Act by the CPIO and finds no scope of relief to be ordered in the matter.
However, the invocation of Section 8(1)(j) of the RTI Act by the CPIO is misplaced and without any basis as the records relate to the Appellant himself and not to a third party.
Similarly, the FAA ought to have decided on the invocation of Section 8(1)(h) of the RTI Act before introducing new grounds of exemption, and for the said reason the FAA's order is set aside.
With the above observations, the appeal is disposed of.
Saroj Punhani (सरोज पुनहािन)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अिभ मािणत स!ािपत ित)
(C.A. Joseph)
Dy. Registrar
011-26179548/ [email protected]
सी. ए. जोसेफ, उप-पं जीयक
िदनां क /
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