Central Information Commission
Shri R. N. Dwivedi vs Central Vigilance Commission (Cvc) on 2 March, 2009
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2008/01082 dated 16.6.2008
Right to Information Act 2005 - Section 19
Appellant - Shri R. N. Dwivedi,
Respondent - Central Vigilance Commission (CVC)
Facts:
By an application of 13.2.08 Shri R. N. Dwivedi, Ex-General Manager of Coal India Limited sought the following information from Shri K. L. Ahuja, CPIO, CVC:
"1. Copies of the petition dated 10th September 2005 filed by Shri. B. Dasgupta and Mr. Samiran Banerjee under the banner of Koyla Vihar Vasundhara Residents Welfare Society (KVVRWS) having its office at Koya Vihar, Vasundhara, VIP Road, P.O. Airport, Kolkata-700 052.
2. This may please be supplemented with copies of their reminder/ amendments/ additions/ revisions to above complaint being.
(a) Dated 16.10.2005
(b) Dated 28.3.2006
(c) Dated 20.4.2006
(d) Dated 12.6.2006
(e) Dated 17.7.2006
(f) Other paper, if any filed by them.
(g) Copy of letter of Shri Gurudas Dasgupta, Hon'ble M. P. if same forms part of this case file.
(h) copy of CVC office memorandum No. 006/Col/ 036863 dated 29.9.2006 in respect of closure of case/ investigation against R. N. Dwivedi, the then GM (Rajbhasa), Coal India Ltd.
(i) Copy of CIL management's observations vide their letter No. VIG/54/(CVC)/1100 dated 4.9.2006, with its associated papers.
3. Having been 'Not Found Guilty', I seek your permission/ support to prosecute the culprits under section 182 of IPC and file a defamation suit against them without making CVC/ Coal India Ltd any party to the case. The complainants are retired persons from Coal India Ltd and I have also retired on 1 31.7.07 as such Coal India has nothing to do with us or the case at this stage.
In such case the authority under section 195 (a) of IPC is vested with your office who have to invoke the same. For this you may please send me a permission/ NOC to be ahead for precaution the guilty persons under section 182 of IPC at my own and at my cost."
To this he received the following response on 13.3.2008:
"Para-1 The Complaint dated 10.9.2005 was received in the Commission under Public Interest Disclosure Resolution. Under the PIDR of GOI, the Commission as designated authority is responsible for protecting the identity of the complainant. Hence your request for supply of copy of above complaint is turned down in terms of Para 8 (1) (g) of RTI Act-2005.
Para 2 (a, c, d, e) The request for supply of copies of complaints/ reminders/ amendments dated 16.10.2005, 20.4.2006,12.6.2006,17.7.2006 is denied in terms of Para 8 (1) (g) of RTI Act as disclosure of the information would endanger the life or physical safety of the person. Regarding Para 2(b) the letter dated 28.3.2006 does not appear to have been received in the Commission. Regarding Para 2 (f) no information can be provided without any specific detail. Regarding Para 2 (g) letter from Shri Gurudas Gupta, MP has not been received in the Commission.
Para 2 (h) Copy of CVC's OM No. 006/COL/036-36863 dated 28/29.09.2006 is enclosed.
Para 2 (i) copy of CIL's letter No. VIG/54/CVC/1100 dated 4.9.2006 may be obtained from Coal India Ltd directly.
Para 3 Your request for permission to prosecute does not amount to any information under the RTI Act."
Aggrieved Shri Dwivedi moved his first appeal before Shri V. K. Gupta, Addl. Secretary and First Appellate Authority on 5.4.08 upon which Shri V. K. Gupta in his order signed on 6.5.08 held as follows:
"On examining the issues raised by the appellant and connected documents pertaining to this appeal, I find that the complainants 2 who preferred the complaint dated 10.09.2005 under PIDPIR to the Commission have themselves disclosed their identity by making continuous correspondences with several authorities and thereby have compromised with the provisions of whistle blower resolution. As such, I direct CPIO that the signed copy of original complaint dated 10.09.2005 be supplied to the appellant.
In addition, I observe that copies of complaints dated 16.10.2005, 20.04.2006, 12.06.2006 & 17.07.2006 are sought under Para 2(a), (c ), (d) and (e) by the appellant and as the case stands closed, CPIO is directed to provide the copies of the same to the appellant.
Regarding Para 2 (b) (mentioned as Para 2 (d) by the appellant), the complaint dated 28.03.2006 purported to have been sent to the Commission, the same is not available in file/ records of the Commission, and therefore, reply of CPIO is in order. The alternate request of the appellant to obtain a copy and provide does not fall under the provisions of RTI Act.
As far as Para 2(f) is concerned, appellant has furnished specific details and since the case stands closed, direct the CPIO to provide copies of correspondences and connected papers sought by the appellant in respect of complaint dated 10.09.2005.
In regard to Para 2(j) the CPIO has replied to the appellant to obtain CIL's letter dated 4.9.2006 directly from CIL and accordingly the appellant may approach CIL for the same. I, therefore, uphold CPIO's decision on this issue.
Subsequently, however, we have another order of 16.5.08 from the same Shri V. K. Gupta stating as follows:
"On re-examining the issues raised by the appellant and connected documents pertaining to this appeal and the facts brought to notice by the concerned section dealing with PIDR complaints, subsequent to the issue of earlier orders on 7.5.2008, I find that the complaint dated 10.09.2005 still enjoys the status of a PIDR complaint. Under the provisions of the Public Interest Disclosure Resolution (PIDR) 2004, the concerned section which is custodian of such complaints, is duty bound to protect the identity of the complainant who made the complaint dated 10.09.2005 under PIDR. Accordingly, I decide to hold my orders dated 7.5.2008 to supply a copy of this complaint to the appellant in abeyance.
However, in view of the averments made by the appellant that the complainant had himself disclosed his identity and violated PIDR 3 provisions that formed the basis of my orders dated 7.5.2008, it is also considered desirable for the public authority concerned to review the status of this complaint and decide whether it continues to be qualified as PIDR complaint and convey its decision to the undersigned for taking further necessary view in this matter.
As regards Para (5) of my orders dated 7.5.2008, for supplying copies of complaints dated 16.10.2005, 20.04.2006 & 17.07.2006 as sought under Para 2 (a), (c ), (d) and (e) by the appellant, on re- examination of the matter, I direct CPIO to complete the procedure laid down under section 11 of the RTI Act pertaining to confidential information supplied by the third party, before supplying the copies of the complaints dated 20.4.2006, 12.06.2006 & 17.07.2006 to the appellant.
However, I find that the complaint dated 16.10.2005 was also filed under PIDR by the complainant. Hence the observations made in Para (3) above would also apply to this information.
As far as Para 2(f) is concerned, appellant has furnished details in the appeal, however, I find that the information sought relates to the PIDR complaint dated 10.09.2005. Hence the observations made in Para (5) above would also apply to this information.
Insofar as orders contained in Para 6 & 8 of earlier orders dated 7.5.2008 there is no change and the same stands."
Upon this, appellant Shri Dwivedi moved his second appeal before us with the following prayer:
"1. The unjustified order of Additional Secretary & Appellate Authority CVC (Shri Vineet K Gupta) vide his memo No. CVC/RTI/APP/08/006-11058 dated 16.05.2008 (received by me on 22.5.2008) may kindly be quashed/ reversed as illegal and issued in violation of RTI provisions.
2. His order vide reference to No. CVC/RTI/APP/08/006- 10160 dated 6/7.5.2008 may be declared as the perfect and enforceable order for compliance by director & CPIO/CVC and other authorities/ offices.
3. Order may also please be passed for obtaining copy of CBI letter No. S10822006A 0007/3305 dated 5.9.2006 along with all relevant documents associated with same to be obtained by CVC as a part of this proceedings, as 4 it is integral part of this case history. Which on receipt may be sent to me along with papers.
4. To ascertain the truth, I may please be given a copy of the entire proceeding of the case history of CVC investigation and their RTI proceedings in their totality.
5. The copy of petition dated 28.3.2008, from complainants has also been established to be written to CVC. The CVC may be please directed to obtain/ locate the same and sent it to me separately in due course, if not readily available.
CVC may also please be directed to supply all the papers to me free of cost, duly certified, authenticated and in its totality with all the enclosures including copies of their office proceeding and information associated with this issue."
Subsequently, by a third order of 26.6.08, Shri V. K. Gupta ordered as follows:
"The competent authority under PIDR has after examining the issues relating to the PIDR complaints dated 10.09.2005 and 16.10.2005 informed the undersigned, that as per records there is no evidence with the concerned section that the identity of the complainant who made such references has been revealed at any state to any authority or office or that the screening committee has not treated it as PIDR. The complaints, therefore, continue to be classified as PIDR.
On re-examining the issues raised by the appellant, connected documents pertaining to this appeal and the views of the competent authority for PIDR, I find that both the complaints dated 10.9.2005 and 16.10.2005 continue to be classified as PIDR. The averments made by the appellant in his appeal that the complainants had themselves compromised or disclosed their identity have also, not been found correct. CPIO vide rely dated 13.3.2008 has denied information under section 8 (1) (g) of RTI Act with reference to Para (1) and Para (2) (A) of the appellant's request dated 13.2.2008 in so far as complaints/ petitions dated 10.9.2005 and 16.10.2005.
However, I find that the information is protected even under PIDR which has been issued under the express directions of the Hon'ble Supreme Court in Satyendra Dubey's case. This Commission being the designated agency under PIDR resolution to received complaints and to maintain confidentiality of such complaints, therefore, cannot provide details or copy of the said complaints sought by the appellant.
5The appellant under Para (2) (f) of his application sought copies of "other papers, if any filed". CPIO vide reply dated 13.3.2008 had replied that no information can be provided without specific details. The appellant in his appeal stated that he needs all documents forming part of correspondence of the complaint dated 10.9.2005. As the information/ documents sought by the appellant relates to the PIDR complaint dated 10.9.2005, information sought cannot be supplied and is, therefore, denied."
In compliance, through her letter of 14.2.08 CPIO Dr. Jaya Balachandran, Director & CPIO, CVC wrote to appellant Shri Dwivedi attaching the following:
"Copies of complaints dated 20.4.2006, 12.6.2006 and 17.7.2006"
Therefore, while copies of the original petition of 10.9.05 were denied to appellant Shri Dwivedi so were the documents dated 16.10.05 and 23.8.06 and the documents provided dated 16.5.08 was specifically not asked for.
The appeal was heard by videoconference on 20.10.2008. The following are present:
Appellant at NIC Studio Kolkata Shri R. N. Dwivedi Respondents at CIC Studio, New Delhi Shri A. K. Gupta, Under Secy. & CPIO Shri J. Vinod Kumar, Under Secy. & Nodal CPIO Respondent Shri A. K. Gupta, CPIO was asked under what law appellate authority had reviewed his earlier decision not once but twice when in fact RTI Act confers no such powers even on the Central Information Commission other than what is allowed to any judicial body i.e. review on the basis of error of law or error of facts. To this he responded by submitting a copy of the Resolution No. 371/12/2002-AVD-III published on 21.4.2004 by the Ministry of Personnel, Public Grievances and Pension on Public Interest Disclosure and Protection of Informers. Under Sec. 4(2) of this Resolution it has been directed as follows:
"The identity of the complainant will not be revealed unless the compliant himself has made the details of the complaint either public or disclosed his identity to any other office or authority."6
Respondent CPIO also presented a copy of file noting by Ms. Deepa Bajwa, Director of 14.5.08 addressed to the CPIO Br. VI in which she has noted as follows:
"In view of the factual position as above, a complaint dated 10.9.2005 received under PIDR, has been processed as a PIDR complaint. The issues raised in the complaint have been considered as closed after due examination of the report by the CVO. Notwithstanding the complaint continues to be classified as a PIDR and the identity of the complainant would remain concealed.
On this basis Ms. Deepa Bajwa has submitted a note to Secretary, CVC on 28.5.08 stating as below:
"The records of the Confidential Section in the instant case have been examined and it is confirmed that a complaint dated 10.9.2005 under PIDR was duly considered by the Screening Committee and taken up for further necessary action after concealing the identity of the complainant as per extant Resolution. There is evidence on record of the Confidential Section that the identity of the complainant who made such reference has been revealed at any stage to any authority or office that the Screening Committee has not treated it as PIDR. The complaint thus continues to be classified as a PIDR. These facts may be brought before the appellate authority."
On the transfer of the above Secretary on 28.5.08, this had been forwarded to Appellate Authority ASG on 29.5.08.
DECISION NOTICE The issues before us are as follows:
1. Can information sought under the RTI Act be denied on the grounds that the matter falls within the purview of PDIR?
2. Can the First Appellate Authority exercise the powers of review in such a matter?
3. In case a decision had been found to be in violation of Govt. Policy, or the grounding in law, what is the remedy that can be sought by the CPIO?7
From the facts of the case, it appears that the CPIO denied the information under Section 8(1)(g) of the Right to Information Act, 2005 as he was of the view that the Central Vigilance Commission, as the designated authority, is responsible for protecting the identity of the complainant under the Public Interest Disclosure Resolution (PIDR) 2004. The First Appellate Authority heard both the parties and on finding that the complainants who preferred the complaint petition under PIDPIR to the Commission have themselves disclosed their identity by making continuous correspondence with several authorities have thereby compromised with the P.I.D. Resolution, he directed the CPIO to provide a signed copy of the original complaint dated 10.9.2005 to the appellant. The order of the First Appellate Authority was passed on 6.5.2008.
Subsequently, the First Appellate Authority revised its own order on the ground that certain facts and material relating to this appeal were not taken note of at the time when the first orders were issued. In his revised order, he has come to the conclusion that the complaint petition was submitted in confidence by a third party, i.e. the complainant and as such the procedure laid down under Section 11 of the Right to Information Act, 2005 should be followed before supplying the copies to the complainant. He also directed that the concerned public authority should review the status of this complaint and decide whether it continues to be qualified as PIDR complaint and convey its decision.
From the records, it, however, does not appear as to what led the First Appellate Authority to revise its earlier order. It may be that either the CPIO or the concerned public authority, being the third party itself, may have objected to the first order passed by the First Appellate Authority.
However, in this context, it may be mentioned that the First Appellate Authority has no power to review its order once passed and communicated. The public authority or the concerned CPIO if they were at all aggrieved with the 8 decision of the First Appellate Authority, could have approached this Commission under Section 19(3) of the Right to Information Act, 2005. This disposes of issues 2 and 3 From the records, it also appears that the First Appellate Authority before revising its previous decision did not hear the appellant and the orders were passed behind his back. Thus, the impugned order passed by the First Appellate Authority is not legally sustainable for non-compliance with the principles of natural justice. This lapse may be brought to the notice of Shri Pratyush Sinha, Chief Vigilance Commissioner who will ensure closer adherence to the principles of natural justice besides a strict compliance with the law on information in the servicing of RTI in his public authority. However, since the material facts are there before the Commission, no purpose will be served by remitting back the case to the appellate authority.
From the copy of the note sheet which has been produced by the public authority, it appears that the complaint petition, information about which is being asked for under the Right to Information Act, 2005, was processed as a PIDR complaint and the concerned public authority under DoPT Resolution issued in pursuance of the Supreme Court directions in WP (C) No. 539/2003 is obliged not to disclose the identity of the complainant. We are of the view that the disclosure is then, prima facie, exempted under Section 8(1)(g) as rightly held by CPIO Dr Jaya Balachandran, and, therefore, there is no obligation on the part of the public authority to disclose this information to the appellant. This disoposes of Issue No 1.
With the above directions, the appeal petition stands disposed of. Reserved in the hearing, this Decision is announced in open chamber on the 2nd day of March 2009 9 Notice of this decision be given free of cost to the parties. A copy also to Shri Pratyush Sinha, Chief Vigilance Commissioner for his urgent attention.
(Wajahat Habibullah) Chief Information Commissioner 2.3.2009 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 Shreyaskar) Joint Registrar 2.03.2009 10