Central Information Commission
Sgt. Indrasen Singh vs Air Force, Ministry Of Defence on 30 September, 2008
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/00747 dated 28.5.2007
Right to Information Act 2005 - Section 19
Appellant - Sgt. Indrasen Singh, Jaunpur
Respondent - Air Force, Ministry of Defence
Facts:
By a request of 12.9.06 to the PIO 77 SU Air Force. Sgt. Indrasen Singh of Jaunpur (UP) sought the following information:
"1. Remarks by HQ SWAC and AFRO on my discharge application dated 12th December 2005.
2. Copies of charge sheet raised against me in this unit.
3. Remarks by Section Commander and Station Commander on my discharge application dated 12th December 2005.
Period 2005-2006."
To this he received a detailed response from Flt. Lt. Nav Chetan, PIO 77 SU Air Force of 3.11.06 as below:
"(a) HQ SWAC, IAF had forwarded the application of the individual to AFRO as "Not Recommended". No remarks were made by AFRO since the "not recommended" remarks of HQ SWAC, IAF were endorsed in the covering letter and not on the application. Thus the application was returned unactioned by AFRO.
(b) Copies of charge sheets raised against you in 77 SU, AF are enclosed. (Total 03 charge sheets).
(c) Remarks of Stn Cdr. 77 SU on your discharge application dated 12th December 2005 are as follows:-
(i) The SNCO has applied for discharge from Service due to his perceived problems of leave and because of being charge sheeted and punished for offences committed by him.
(ii) The SNCO was posted to this unit w.e.f. 30th August 2004. From 30th August 04 till 31st December 2004, the SNCO was granted 48 days leave including 16 prefix and suffix. He has availed 89 days leave with 12 days prefix and suffix from 01st January 2005 till date. He had applied for leave for 12 days from 12th 1 December 2005 to 23rd December 2005. Which was not approved. The leave for 2005 was granted in six installments. In 2005 he has put up application for leave on compassionate grounds on all six occasions.
The SNCO did not apply for leave as per plan on any occasion. The leave details of the SNCO for this year are as follows:-
S. Leave Leave to A/L C/L Px Sx Remarks
No from
1. 07.02.05 18.02.05 12 --- 02 --- Compassionate
days grounds Wife
serious.
2. 19.02.05 04.03.05 14 --- --- --- Request for Extn
days due to domestic
Extn problems.
3. 11.04.05 22.04.05 12 --- 02 02 Compassionate
days grounds wife
serious.
4. 23.05.05 03.06.05 --- 12 02 --- Compassionate
days grounds niece
marriage.
5. 20.06.05 24.06.05 --- 05 --- --- Compassionate
days grounds land
dispute
settlement.
6. 07.09.05 28.09.05 22 --- --- --- Compassionate
days grounds Father
hospitalized.
7. 21.11.05 02.12.08 12 --- 02 02 Compassionate
days grounds Father
from seriously sick
2006 and admitted in
hospital.
(iii) The leave of personnel is being regulated based on
HQ SWAC directive issued vide SWAC/S
3203/I/CPSO (Adm) dated 07 Jan 2005. A copy of the Stn leave directive is attached as Appx 'A'.
(iv) On 10th December 2005, the SNCO was late in attending briefing for exercise PRASHIKSHAN. For this lapse he was charge sheeted and punished. On perusal of SNCO's documents, the following is observed: -
2(aa) The SNCO was admonished for being AWL for 14 days in 1994.
(ab) Reprimanded for misbehaviour with superior officer in 1995. (ac) Reprimanded for being absent from duty. (ad) Admonished for being late for briefing on 10th December 2005.
(v) The SNCO had applied for interview with SASO on 18th July 2005. The interview was denied by HQ SWAC because he wanted to disclose the matter only to SASO. He had also applied for discharge but withdrew his application after a day.
(vi) The leave record of the air warrior reveals that the SNCO is in the habit of proceeding on short leaves frequently. The number of occasions the NSCO has proceeded on leave and total leave period in the last five years is as follows:-
Year 2000 2001 2002 2003 2004 2005
No of 11 06 05 11 09 06
occasions
A/L 47 48 29 27 52 60+12
(from
2006)
C/L 30 25 21 30 30 17
Px 08 14 10 10 07 08
Sx 06 11 06 09 11 04
Total 91 98 66 76 100 101
(vii) The SNCO has been counseled by the undersigned on numerous occasions. In the opinion of undersigned the SNCO is in the habit of using threat for discharge and interview with senior officers to put pressure on the administration.
(viii) As per AFO 14/2001, the SNCO does not have adequate grounds for discharge. His request for discharge appears to be an overreaction of being punished for indiscipline and because he has been denied leave from 12th December 2005 to 23rd December 2005. However, it would be in service interest to grant him discharge from service.
(ix) In view of his record, his application for discharge from service is strongly recommended."3
In the meantime this was followed by another request of 3.10.06 seeking details of leave entitlement as follows:
"1. Leave Entitlement.
2. Disposal on my personnel application dated 08th November 2005.
3. Remarks of Station commander on my leave application dated 06th January 2006.
4. Trade proficiency during 2004.
5. Remarks of Section Commander on leave application dated 14th September 2006.
6. leave POR 93/05,7/2006.
(ii) 2004, 2005, 2006."
To this he also received a response dated 3.11.06 as below:
"(a) As per DSR (I) LR, leave entitlement is Annual leave for 60 days and Casual leave for 30 days (10 days at a time and 20 days in exceptional cases).
(b) Your personal application dated 08th Nov 2005 is remarked by 'Section Commander as under:-
(i) The SNCO has already availed 60 days A/L, 17 days C/L on 05 occasions with 12Px&Sx. As per Stn Cdr Directive, it is not permissible to grant further leave.
(ii) At present, the leave percentage is also high.
(iii) Forwarded for your perusal.
(c ) Your leave application dated 06th Jan 2006 was remarked by Section Commander as "Not recommended, individual to avail annual leave & abide by leave directive". Further it is not remarked by Stn Cdr.
(c) Trade Proficiency during the year 2004 is "Exceptional".
(d) Your leave application dated 14th September 2006 is remarked by Sec Cdr as "recommended".
(e) Copies of leave POR No. 93/05 and 7.2006 are enclosed."
However, before receiving the response of 3.11.06, appellant Sgt. Indrasen Singh had already moved his first appeal on 2.11.06 referring to both 4 his applications but submitting that, "Station authorities have not provided me any information knowingly and deliberately violating your august instructions."
However, after receiving the responses appellant has then moved two fresh first appeals of 10.11.06 before the SOA, HQ, SWAC in each of which, however, he refers to an application of 10.8.06, whereas in the first of the applications his contention is that of 12.9.06. At any rate both appeals were dealt with together by Air Vice Marshal V.S. Kapani, Sr. Officer In charge Admn. HQ SWAC. In his order of Dec. 1, 2006 he has directed as follows:
"5. WHEREAS, both your appeals dated 10th Nov 2006 were received at this HQ on 14th Nov 2006.
6. AND WHEREAS, I being the Appellate Authority, have considered both the said appeals on merits, in terms of Section 19 of the Right to Information Act, 2005.
7. AND WHEREAS, I find that the information sought by you in your applications for information under RTI Act 2005 dated 12th September 2006, 14th September 2006, 03rd October 2006 and 02nd November 2006 is purely personal information, the disclosure of which has no relationship to any public activity or interest.
8. AND WHEREAS, my finding at Para 7 ibid notwithstanding.
I also find that the information sought by you, in your applications mentioned in Para 7 above was duly provided to you by the CPIO, 77 SU, AF.
9. NOW THEREFORE, I reject both your appeals dated 10th November 2006 as devoid of merit."
This was preceded by a letter of 20.1.06 from Group Captain H. K. Nair, confirming to appellant Sgt. Indrasen Singh that the copy of the proceedings of the Court of Enquiry had already been given to him on 16.11.06, as per the provisions of Rule 1(6)(5) of the Air Force Rules 1969. This was evidently not received by appellant because in his representation of 22.2.07 addressed to SOA, HQ, SWAC he has stated that this appears to be back dated or handed over late deliberately by the Unit Administration. He has then concluded this representation as follows:
"To my surprise the above said application forwarded by PIO 77 SU AF to CPIO has been considered by HQ SWAC where as same application dated 22nd Nov 2006 was returned unactioned from your 5 august office. Your attention is drawn that why this much injustice has been done towards me deliberately.
Please also intimate the next competent appellate authority against your "HQ SWAC letter no. SWAC/3451/14/P1 dated 01st December 2006 and 09th February 2007 for further submission within prescribe time limit as no further appeal procedure has been intimated which is contrary to section 17 (b & c)."
On not receiving a reply appellant Sgt. Indrasen Singh has moved a second appeal before us with the following prayer:
"I request your benign office that order of PIO 77 SU AF and SOA HQ SWAC IAF may please be quashed and punitive action may please be initiated. Both the authority has the defined the RTI Act 2005 as per their convenience and violated the provision of this Act.
The order of SOA HQ SWAC IAF is biased prejudice and against the natural justice in limine as it violates the provision of Section-7 (8) (1, 2, 3) of RTI Act."
This appeal has been moved on grounds of partial and misleading information and denial of information under provisions of RTI Act 2005. Meanwhile appellant seems also to have received a notice from PIO Flt. Lt. M. Sangwan of 3.1.07 accusing him of misusing the RTI Act, as below:
"1. Appended below is an extract of section 8 (1) (j) of RTI Act 2005, which exempts the discloser of the following nature of information "Information which relates to personal information the discloser of which has no relationship to any public activity or interest."
2. It is observed by undersigned that you are misusing RTI Act to settle personal enmities and grievances, which should have been addressed on service grievance channel.
3. You are advised to refrain from all such activities, which are not expected from uniformed personnel."
The second appeal has been moved on 17.5.07, which would ordinarily make this time barred. The reason pleaded for this by appellant in his second appeal is as below:
6"The delay in filing the appeal in your august office is due to non intimation for SOA HQ SWAC IAF for higher appellate authority. The concern authority may please be directed to provide the required information as per the time frame prescribed under RTI Act 2005. Submitted for your sympathetic and favorable action from your benign office, please."
On the substance of his appeal also, appellant has stated as below:
"Regarding next appellate authority I have approached to SOA HQ SWAC IAF (Through PIO 77 SU AF) vide my personnel application dated 22nd February 2007 for intimating the next higher appellate authority for filing further appeal against the order of SOA HQ SWAC IAF Dated 1st December 2006.
With regret I would like to mention that till date I have not received any reply from SOA HQ SWAC IAF."
The appeal was heard by videoconference on 19.7.2008. The following are present:
Appellant at NIC Studio, Mumbai Sgt. Indrasen Singh Respondents at NIC Studio, Gandhi Nagar Wg. Cdr. Makadam Flt. Lt. (Ms.) Rupa Respondent Wg. Cdr. Makadam submitted that in a decision of 19.7.07 this Commission on File No. CIC/MA/A/2007/00246 has decided as follows:
"An information sought should be furnished in the form in which it is asked for or it exists. Accordingly, the identified information, as above, should be provided, if available, to the appellant within 15 working days from the date of issue of this decision.
The information sought in this case was as below:
"Copy of existing policy for book in/out while proceeding on leave/TD of SNCO's.
Copy of rules under which he was not allowed to have carbon copy of his own statement made before COI by presiding officer (Flt Lt A.S. Thakur) in presence of both members of COI."7
Upon this a review application was moved, which was heard on 26.1.'08, but no decision received.
Appellant Sgt. Indrasen Singh on the other hand has sought to dispute the information provided on each issue. On the request for remarks on his Discharge Application of 12.12.05, he stated that although he has received the remarks of the Station Commander those of the Section Commander have not been provided. He has submitted copies of letters received by him from W.O. M.M. Nair of 24th May, 2006 titled "Discharge: Airmen 687808-F Sgt IS Singh ADSO", of 30.6.06 from MWO AC Bishnoi, MWO IC RW (Dis) titled "Discharge From Service: Airmen 687808-F Sgt IS Singh ADSO", of 11.7.06 from JWO S.K. Sharma, WO IC P3 for SOA titled "Discharge: Airmen 687808-F Sgt IS Singh ADSO", of 15.1.07 from Flt. Lt. S. Rajkumar, PIO 77 SU AF Pin 936077 c/o 56 APO titled "Information under RTI Act, 2005" and of 23.1.06 from Gp. Capt. A.S. Yadav, Officer Incharge P-1 HQ SWAC, IAF Sec. 9, Gandhinagar-09 titled "Discipline Airmen 687808 Sgt IS Singh ADSO" where-under in response to his RTI application the copy of charge sheet issued on 18.7.06 trialed at 33 Wing Air Force was provided with the promise that "rest of the information will be provided very shortly on receipt from the concerned authorities". These are cited by appellant as indicating the effort of Hqrs. SWAC to evade providing information. These copies have been received by Email. Sgt. Indrasen Singh had requested that he might be allowed to send further documents by FAX, which has not been received. Wg. Cdr. Makadam on the other hand has submitted that there were no comments of the Section Cdr. on the Discharge Application, which could be provided. The only comments were those of Station Cdr., which in fact have already been provided. He did not, however, raise the issue of any time bar on the appeals submitted before us by Sgt. Indra Sen Singh.
DECISION NOTICE We have examined the decision of this Commission in File No. CIC/MA/A/2007/00246 of 19.7.2007. This is as follows:
8"During the hearing, information sought was discussed in detail. The appellant desired that he should be provided copies of the following documents:
• Copy of existing policy for book in/out while proceeding on leave/TD of SNCO's.
• Copy of rules under which he was not allowed to have carbon copy of his own statement made before COI by presiding officer (Flt Lt A.S. Thakur) in presence of both members of COI. "
Decision:
An information sought should be furnished in the form in which it is asked for or it exists. Accordingly, the identified information, as above, should be provided, if available, to the appellant within 15 working days from the date of issue of this decision.
This decision was given on the decision in his first appeal, which was before SOA, HQ, SWAC IAF on 22.2.2007. In this appellant Sgt. Indrasen Singh has pleaded as follows:
"1. Reference is made to PIO 77SU letter no.
77SU/7000/10/1P1dated 03rd January 2007, which was handed over to me on 15th February 2007.
2. Para 1 of ibid letter PIO has mentioned incomplete information about section 8 (1) J of RTI Act 2005. Section 8 (1) J of above Act conspicuously envisage that information which relates to personal information the discloser of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the CPIO or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the discloser of such information. Provided that the information, which cannot be denied to the parliament, are state legislature shall not be denied to any person. The PIO has not referred the rest of section 8 (1) 2&3, of the RTI Act."
In this case the appeal was against the order of PIO Flt. Lt. Nav Chetan of 14.11.06 in which the PIO had informed appellant that some of the information that he had sought and could be provided had been asked from the concerned authorities. Some of the information, however, covering four questions of his original application were in the view of Flt. Lt. Nav Chetan not covered under the definition of information and, therefore, refused. However, first Appellate 9 Authority Air Vice Marshal M. John, had in his order of 8.2.2007, provided answers to each of these questions "in the larger interest of justice". However, this had not satisfied Sgt. Indrasen Singh who in his prayer in second appeal before us in that case had termed the order of Sr. Officer In charge Admn. Air Vice Marshal M. John as "biased, prejudiced and against natural justice in limine as it violates the provisions of Sec. 7(8)(1 to 3) of R.T.I. Act."
It was in this context that we must read the decision of CIC quoted above. On that decision, however, there was a review petition filed by Air Vice Marshal M. John on 13.8.2007 in which the Air Vice Marshal submitted as follows:
"There is no provision under Air Force Law to provide any carbon copy of the statements to the witnesses while the Col is in process. As per Rule 156 (7) of AF Rules, 1969, a copy of the proceedings of the Col is to be provided to an individual who has been blamed by Col or in whose case a Court Martial has assembled subject to the other provisions of Rule 156. Sgt IS Singh was provided with the copy of the proceedings of the Col in his case on 16th November 2006. Sgt IS Singh with the copy of the proceedings of the Col in his case on 16th November 2006. Sgt IS Singh hid this fact from the Hon'ble Commission on 17th July 2007.
The information sought by appellant as contained in Para 3 of the order of CIC dated 19th July 2007 was never sought by him in his applications under RTI Act 2005 addressed to PIO, 77 SU, AF. Moreover, both the information's as directed to be provided to the appellant were already provided to him on 30th November 2006 and 16th November 2006 respectively. No new issues can be raised/ information can be sought under RTI Act, 2005 in any of the appeals against the decision of PIO.
PRAYER: It is humbly prayed that the Hon'ble CIC may review the order dated 19th July 2007 and dismiss the appeals filed by Sgt IS Singh dated 17th May 2007 and 19th May 2007."
In this case, however, hearing was indeed held on 26.11.07 on which a decision stands taken on file as follows:
"The decision has been complied with, the case is thus closed."10
This would indicate that much of the information that appellant Sgt. Indrasen Singh has sought in the present appeal before us has in fact been provided to him. In addition, the present applications, as can be seen from the discussions above, have been responded to pointwise. Under the circumstances we cannot see any merit in appellant's prayer before us in either case. Appellant Sgt. Indrasen Singh has cited violation of Sec. 7(8)(1 to 3) of the RTI Act. However, since in responding to the two applications there has in fact been no refusal, the citing of this section of the RTI Act is altogether misplaced.
The only issue remaining is that of delay in response to the application of 12.9.06 to which a response became due on 12.10.06, but has been provided only on 3.11.06. This renders the PIO Flt. Lt. Nav Chetan liable for penalty @ Rs. 250/- per day amounting to Rs. 5500/-. He will, therefore, show cause in writing by 13.10.2008 as to why this penalty should not be recovered from him.
Reserved in the hearing, this decision is announced in open chamber on 30.9.2008.
Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 30.9.2008 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 30.9.2008 11