Central Information Commission
C.M. Sarwar Mohammad vs Indo-Tibetan Border Police on 11 December, 2020
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/ITIBP/A/2019/105855
CIC/ITIBP/A/2019/105856
C.M. Sarwar Mohammad ... अपीलकता/Appellant
VERSUS/बनाम
PIO,O/o Inspector General, Eastern ... ितवादीगण /Respondent
FTR., Indo Tibetan Border Police Force,
MHA, 47/27, A-3,Sheela Complex,
19-B, VidhanSabha Marg, Hazratganj,
Lucknow, U.P.
Date of Hearing : 29.04.2020
Date of Decision-Interim : 30.04.2020
Date of Final Decision : 27.11.2020
Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on : 20.09.2018, 10.09.2018
PIO replied on : 18.10.2018
[as mentioned in 2nd appeal]
First Appeal filed on : 30.10.2018, 30.10.2018
First Appellate Order on : 14.11.2018, 14.11.2018
2ndAppeal/complaint received on : 28.01.2019, 28.01.2019
ORDER
The abovementioned appeals arise from two RTI applications dated 20.09.2018 and 10.09.2018, based on an inquiry conducted against the Appellant, pursuant to an order no. 6573 dated 21.11.2018 issued by the Regional Headquarter, Lucknow, without granting him the opportunity to state his case and defend himself. Thus the Appellant filed the RTI application dated 20.09.2018 seeking the following information:
"1. Under which rule was the inquiry against the Appellant conducted;
2. Under which provisions of the rule was the inquiry concluded without giving copy of chargesheet and adequate time to the Appellant;
3. Under which provision was the outcome of the inquiry, the inquiry report was not provided to the Appellant, even after conclusion of the inquiry."
The Appellant had filed another RTI application dated 10.09.2018 seeking information about charter of duty of the CM of ITBP. The Appellant has mentioned in the Second appeal that vide letter dated 18.10.2018 the PIO/ITBP, Lucknow [Regional Hq] denied information in response to both the aforementioned RTI applications, citing exemption available to the organization under Section 24 of the RTI Act.
Aggrieved by the denial of information by the PIO, the Appellant filed First Appeal/s dated 30.10.2018 which was decided vide order dated 14.11.2018 upholding the order of the PIO. Hence, the instant Second Appeal was filed by the Appellant.
Proceedings during hearing:
Due to nation-wide lockdown being observed, to prevent the spread of the pandemic of COVID-19, hearings are being conducted through audio conference.
The Appellant participated in the hearing on being contacted on his telephone number: 9454826106 and reiterated facts of the case.
Before dealing with the merits of the case, the foremost point which needs to be addressed in the instant case is of the maintainability of the present appeal. Section 24(1) of the RTI Act, 2005 lays that:
24. Act not to apply to certain organizations-
(1) Nothing contained in this Act shall apply to the intelligence and security organizations specified in the Second Schedule, being organizations established by the Central Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-
section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in Section 7, such information shall be provided within forty-five days from the date of the receipt of request.
The Respondent public authority is enlisted in Second Schedule of the RTI Act and as such, exempt from provisions of this Act. The only exception carved out to the rule is wherein information sought relates to allegations of corruption/human rights violations and approval to disclosure is accorded by this Commission.
Thus, the present RTI request must satisfy two conditions. Firstly, the information sought must relate to allegations of corruption / human rights violations and the same must not be barred under various exemptions under Section 8 of the RTI Act.
Decision: Interim Before proceeding further with the matter, the Commission draws its attention to a decision dated 07.05.2018 passed by a predecessor bench while deciding the case no. CIC/INBRU/A/2017/118048 Shri M. Dinesh Vs. PIO Bureau of Immigration/IB wherein it was held that:
"....7. In the considered opinion of the Commission, the Appellant is entitled to information sought. The expression 'human rights' is defined in Section 2(d) of the Protection of Human Rights Act,1993.
"human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.
8. Article 21 of the Constitution of India guarantees a right to lead a dignified life with personal liberty. Article 14 guarantees equality before law to all citizens. In a catena of judicial pronouncements, the right to a have a fair trial is held to be an embodiment of the Article 14 read with Article 21.
10........I am left with no doubt that a man preparing for his self defense in penal proceeding exercises his basic human right. Any impediment in the same would invariably be a breach of human right. The term 'violation' as preceding the term 'human right' in proviso to Section 24 of the RTI Act has to be understood in a broader manner so as to cover any past or ongoing violation of human rights. It is not necessary that the breach of human rights has to be conclusively proved by the information seeker. A credible allegation of breach of human right, which weighs favourably with the Commission warrants disclosure of information.
11......The present case can also be viewed as a simple case of hardship which needs a sympathetic redressal by the public authority. The Commission is quite alive to the possible exponential increase in requests for information under RTI Act regarding foreign travel citing the present decision as precedent. It would not be possible to postulate all specific instances in which information shall be divulged. The same depends on facts and circumstances of each case and the present decision cannot be generalised.
12. In the facts of present case, the Appellant is not seeking information related to any third party but his own travel details to prove his innocence in a criminal proceeding. The information sought is crucial to the Appellant for a fair opportunity of self defence. The Commission is not considering the culpability or innocence of the Appellant in the criminal case set up against him; but declining a fair opportunity to arrange for material of self defence would certainly breach the human right of Appellant.
13. Furthermore, there is no impediment in terms of exceptions carved out in Section 8 of the RTI Act prohibiting dissemination of information sought. Accordingly, the Commission directs the PIO, Bureau of Immigration, Intelligence Bureau/MHA to provide complete information sought within four weeks of receipt of the present order.
14. The appeal is allowed in aforesaid terms."
Perusal of records of the case reveal that the Appellant has sought the above information pertaining to an inquiry conducted against him. The chargesheet, outcome of an enquiry conducted against the Appellant must be made known to him, as a matter of natural justice. Likewise the query about charter of duty of the CM of ITBP is also not a query which cannot be divulged, under provisions of the Section 8 of the RTI Act. Hence, the Commission is not convinced with the outright denial of information by the respondent under Section 24 of the RTI Act and is of the considered opinion that this case deserves a more calibrated approach rather than summary dismissal. Hence, the replies of PIO and FAA are hereby set aside.
In the light of the above decision of the predecessor Bench the Commission is inclined to direct disclosure of the information. However, considering that the respondent organization has claimed exemption being covered by the Section 24 of the RTI Act and the Respondent is not present for the hearing, the Commission grants an opportunity to the respondent to submit their stance in the form of a written submission in support of their denial of information in this case, within one month of the lifting of the lockdown. In the event that no submissions are received from the respondent within the stipulated time, the Commission will decide the matter on the basis of the records available.
Order reserved.
Final Decision: 27.11.2020 Despite passage of more than sufficient time and granting opportunity to the Respondent to justify denial of information, no submissions have been received so far from the Respondent. Thus no justification has been found on record for denial of information except the blanket denial invoking Section 24 of the RTI Act.
In the light of the ratio of the decision dated 07.05.2018 of an earlier Bench of the Commission in case no. CIC/INBRU/A/2017/118048 titled Shri M. Dinesh Vs. PIO Bureau of Immigration/IB, coupled with non submission of any contention by the Respondent, despite grant of opportunity, no rationale for denial of information is found in this case. Accordingly, this Commission hereby directs Respondent-CPIO, Inspector General, Eastern FTR., Indo Tibetan Border Police Force, to furnish complete query wise response to the Appellant, as permissible under the Act, within three weeks of receipt of this order. Compliance report with respect to the above directions must reach the Commission by 31.12.2020, failing which appropriate penal action shall be initiated as per law.
The appeals are disposed off accordingly.
Y. K. Sinha(वाई. के . िस हा) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मािणतस ािपत ित) Ram Parkash Grover (राम काश ोवर) Dy. Registrar (उप-पंजीयक)/ 011-26180514