Central Information Commission
Shri U.H. Jaiswal vs Office Of The Comptroller And Auditor ... on 30 April, 2009
CENTRAL INFORMATION COMMISSION
.....
F.No.CIC/AT/A/2008/01478
Dated, the 30th April, 2009.
Appellant : Shri U.H. Jaiswal
Respondents : Office of the Comptroller and Auditor General of
India This second-appeal came up for hearing on 19.03.2009. Appellant was absent when called. Respondents were present through Shri R.Srinivasan, Director (Legal). Notice for hearing by the Commission was issued on 05.02.2009.
2. The present appeal is related to appellant's RTI-application dated 07.04.2008; CPIO's reply dated 15.05.2008 and the Appellate Authority's decision dated 11.08.2008.
3. During the hearing (on 19.03.2009), respondents were directed to provide certain information to the Commission relating to their response to the appellant's RTI-queries. Their submission dated 13.04.2009 has been received in the Commission on 15.04.2009 by fax.
4. It was noted that the matter in which the appellant has sought information in his RTI-application related to the departmental promotion examination of SOGE-November/December 2007 (20.11.2007 to 07.12.2007). This Exam was cancelled by the Director (Exams) at the public authority's Headquarter Office for all the branches, viz. Civil Accounts, Civil Audit, P&T Audit, Defence Audit, etc. Public authority's this decision was on account of locating certain "malpractices" in the conduct of the examination, which apparently occasioned its cancellation. Appellant claims that the public authority has been less than transparent in not sharing with those taking the exam the reasons why it was cancelled ⎯ the nature of the malpractices noticed, the perpetrators of the malpractices and so on. Appellant has, therefore, demanded disclosure of information relating to the cancellation of the above examination. These queries ⎯ all numbering 17 ⎯ are annexed to this order.
5. CPIO provided to the appellant information pertaining to the queries at Sl.Nos.1, 2 and 7. For all other queries, CPIO informed AT-30042009-39.doc Page 1 of 6 appellant that the enquiry into the circumstances which led to the cancellation of the above examination was a "under process".
6. Appellate Authority held that CPIO had furnished to the appellant "the available information". It was his deduction that under Section 8(1)(h) of the RTI Act "a public authority has no obligation to furnish information which would impede the process of investigation". Appellant was informed by the Appellate Authority that the ongoing investigation was being carried out by the CBI.
7. Appellant described the information given to him as "vague and incorrect and incomplete". According to him, the requested information did not attract Section 8(1)(h) as stated by the Appellate Authority. Appellant urged the following grounds in support of his plea in second-appeal:-
"7. Grounds for the Prayer or Relief
(a) The said CPIO through his vague and incomplete and incorrect decision not only misled the undersigned but also destroyed the undersigned's accessible information as described hereunder:-
(i) that the said CPIO not only failed to furnish the exact dates on which the claimed malpractices about the cancellation of the said SOGE Nov/Dec stood noticed and detected, but also failed simultaneously to furnish the certified copies of the relevant report tot hat effect of the concerned officials who noticed and detected the said malpractices;
(ii) that the said CPIO avoided to disclose the name of the Examination Centers where 'IN FACT' the claimed malpractices about the SOGE Nov/Dec 2007 stood noticed and detected;
(iii) that the said CPIO while furnishing his decision to the undersigned's RTI request right from Sl.No.4 to 9 avoided to furnish the certified copies of relevantly sought documents to the undersigned to that effect;
AT-30042009-39.doc Page 2 of 6
(iv) that the said CPIO failed to furnish a certified copy of relevant FIR.
(v) that the said CPIO failed to provide the certified copies of relevant administrative orders including the terms of reference through which the essentially needed enquiry then stood ordered and instituted initially to unearth the facts and also to nab the errant officials;
(vi) that the said CPIO failed to disclose the designation including official address of the Enquiry Officer / Officers and members then entrusted with the task of immediate investigation concerning the claimed malpractices;
(vii) that the said CPIO failed to furnish the copies of the relevant and immediate findings and recommendations of the Enquiry Officer / Officers and Committee Members, which ultimately resulted to the handing over of the case to the CBI as stood claimed by the said CPIO through his said decision;
(viii) that the said CPIO failed to inform of the immediate action, if any, stood initiated against all those errant officials who prime- facie caused the cancellation of the said SOGE Nov/Dec 2007 in one stroke;
(ix) that the said CPIO failed to provide the copies of the relevant file notings, through which the authorities concerned at the relevant level could unanimously arrive at a decision to effect the cancellation of the said SOGE Nov/Dec 2007 in one stroke;
(x) that the said CPIO while claiming that "Authority holding Exams has inherent power to cancel the Exam with reasonable cause"
AT-30042009-39.doc Page 3 of 6 against the undersigned's RTI request at Serial No.7 avoided to reveal and inform:-
"As to why the Authorities concerned at the relevant level instead of restricting the cancellation of SOGE Nov/Dec 2007 to the:-
Firstly : total number of Missing and Duplicated Answer Sheets on record;
Secondly: total numbers of involved Examination papers on record;
& thirdly: total numbers of involved Examination Centres on record;
have effected the cancellation of all of the SOGE Papers in one stroke;
(b) The said CPIO failed to exhibit warranted transparency and accountability in terms of the said RTI Act and encroached upon and curtailed the undersigned's Fundamental Right of Right to Information evidently on record by preventing the undersigned's access to the requested informations;
(c) The First Appellate Authority, instead of taking a serious note of the undersigned's Preferred Appeal especially the advanced caused of Appeal therein, and furnishing of the requested information accordingly as a Designated First Appellate Authority, preferred to deny the same through the blanket dismissal of the same visibly under highhandedness by advancing exemption clause i.e. Section 8(1)(h) of the said Act, even when the sought information, in no way attracted any of the provisions of the Exemption clause of the said RTI Act;
(d) The First Appellate Authority deliberately acted contrary to the provisions of the RTI Act to shield the errant officials apparently from Exposure;
(e) The undersigned wish to obtain the requested information under your firm directions, besides the undersigned also wish to activate the Penal Provisions of the said RTI Act AT-30042009-39.doc Page 4 of 6 against CPIO and Appellate Authority both under your firm directions for the violation of the provisions of the said RTI Act 2005............"
8. What emerged during the hearing and on perusal of the documents filed by both parties is that the respondents have requested the CBI to hold an enquiry into the malpractices which were detected in the conduct of the examination mentioned at para 4 above. Therefore, all documents and files relating to the ongoing investigation had been handed over to the CBI. Respondents, no doubt, still have with them the files in which they arrived at the decision to cancel the examination in November/December 2007.
9. Respondents were asked to clearly state the date on which they made a reference to CBI for taking up the investigation. This they have communicated through their letter dated 13.04.2009. According to this communication, they made their reference to CBI on 29.02.2008. The investigation is still in progress and the CBI has not yet filed the charge-sheet.
10. Respondents admitted that the file in which decision to cancel the exam and to hand over the investigation to CBI was taken was "available in this office". According to them, the file-notings in the above files containing names of those involved and the malpractices which led to the cancellation of the exam should not be allowed to be divulged as the CBI investigation was still in progress.
11. During the hearing, respondents had informed the Commission that no internal enquiry at-all was conducted to determine the nature and the extent of the malpractice and those suspected to be involved in its perpetration.
12. The point for decision in this case is whether the information relating to the CBI enquiry be allowed to be divulged to the appellant and if not, what other information could be disclosed.
13. It can straightaway be said that the file in which respondents took the decision regarding cancelling the examination and handing over the investigation to CBI should be allowed to be opened for inspection by the appellant. Mere presence of the names of employees and others who might be suspected to be involved in the above malpractice shall not be enough to withhold the information from disclosure.
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14. It is, therefore, directed that the file in which the decision was taken to cancel the examination and to hand over the case for investigation by CBI should be disclosed to the appellant to inspect.
15. CPIO is directed that on a day and time to be intimated to the appellant within three weeks of the receipt of this order, he shall be allowed to inspect the above file including its note-portion. Appellant shall be allowed to take copies including certified copies from the inspected document on payment of such fee that may be determined under the RTI Rules.
16. As regards the other queries of the appellant, it was persuasively argued by the respondents that the information relating to those queries was contained in files which were presently in the custody of the CBI.
17. In view of the fact that the requested information was not in the control of the respondents, and also considering the fact that any disclosure at this stage will surely impede the process of investigation currently conducted by the CBI by divulging the direction of the investigation, identities of the witnesses, etc., this information cannot be authorized to be disclosed.
18. Appeal is disposed of with these directions.
19. Copy of this direction be sent to the parties.
( A.N. TIWARI ) INFORMATION COMMISSIONER AT-30042009-39.doc Page 6 of 6