Central Information Commission
Jitendra Pratap Singh vs Oil & Natural Gas Corporation Limited ... on 11 December, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/ONGCL/A/2019/643247-BJ
Mr. Jitendra Pratap Singh
.अपीलकता/Appellant
VERSUS
बनाम
CPIO & GM (HR)
Oil and Natural Gas Corporation Ltd.
Western Offshore Unit: Deptt. Of Public Information (RTI Cell)
3rd Floor, NBP Green Heights, Quadrant 1
Opp. MCA Complex, Bandra- Kurla-Complex
Bandra (E), Mumbai- 400051
... ितवादीगण /Respondent
Date of Hearing : 05.12.2019
Date of Decision : 11.12.2019
Date of RTI application 06.04.2019
CPIO's response 25.04.2019
Date of the First Appeal 15.05.2019
First Appellate Authority's response 28.05.2019
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide his RTI application sought Xerox copy of the visitor register and booking register of ONGC transit accommodation for period from 15.08.2016 to 31.08.2016.
The CPIO vide its letter dated 25.04.2019, stated that the period of the contract had expired; hence the information was not available. Dissatisfied by the response, the Appellant approached the FAA. The FAA vide its order dated 28.05.2019 upheld the response of the CPIO.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Jitendra Pratap Singh;
Respondent: Mr. K. S. Sonkar, DGM (Legal) & Nodal Officer, New Delhi in person; and Ms. Priti Surekha, DGM (HR), I/c H&W, Bandra and Mr. A. Janardana, Chief Manager, Bandra through VC;Page 1 of 7
The Appellant reiterated the contents of the RTI application and stated that the information sought was not provided, till date. Explaining that larger public interest was involved in the matter, the Appellant stated that the disclosure of information would help to unearth huge corruption and conspiracy with ISI to stop cricket betting investigation through which lakhs of crores of rupees went out of the country every year. He thereafter referred to his written submission dated 05.12.2019 and stated being the Ex-Joint Director, ED, Ahmedabad (IRS- Custom-2000 Batch) he was investigating a Cricket betting Racket in the year 2015 and investigation was heading towards unearthing of Rs One Lakh Crores worth of money laundering. However, in order to derail the investigation bogus complaints were filed against him and the CBI was made to search him and bogus charge sheet was filed against him. Thus, in order to prove his innocence and consequently to unearth cricket betting and allied corrupt activities, the information was sought by him. As regards the instant matter, the Appellant alleged that one Mr. Sonu Jalan (a bookie) was arrested and detained by the CBI in the ONGC Transit Guest House during the period mentioned in the RTI application and the contention of the Respondent that the information was not held and available with them was not correct since the information could be obtained from the contractor and provided to him. Furthermore, no clear and cogent response regarding the record retention policy was provided by the Respondent. In its reply, the Respondent re-iterated the response of the CPIO/ FAA as also their written submission dated 04.12.2019 and stated that the information sought was not held and available with them since the period of contract had expired and the visitor register and booking register were kept in the possession of the contractor/ service provider responsible for operation and maintenance of the transit accommodation. The Respondent also stated that the accommodation was solely used by the employees of their organization and no outsider was allowed to use the facility. On being queried regarding the allegation made by the Appellant about utilization of the accommodation by the CBI and whether the information could be denied to the Parliament or State Legislature, if so requested, as per the proviso contained in Section 8 (1) of the RTI Act, 2005, no satisfactory response was offered by the Respondent. The Respondent however agreed to trace their record and furnish the information, if so available or furnish an affidavit to the Appellant in case of non-availability of information.
The Commission was in receipt of a written submission from the Appellant dated 05.12.2019 wherein while explaining the background of the matter, the Appellant inter alia submitted that he is a Ex- Joint Director, ED, Ahmadabad and was investigating a Cricket betting racket in the year 2015 wherein investigation was heading towards unearthing of One Lakh Crores worth of money laundering. Further involvement of ISI was also found who was controlling the Cricket Betting Racket in India through a few Dubai based Pakistani National. Hence, the Appellant alleged that a conspiracy to stop Cricket betting investigation was hatched by the Cricket Bookies with the help of Shri Karnal Singh, Ex-Director, ED and bogus complaints were made to search him. However, nothing was found in the search and he was transferred to Guwahati out of ED and then Cricket betting Investigation was stopped. He further submitted that the CBI could not find anything against him for one year and his case was heading towards closure. However, the IO, CBI was also compromised by the Cricket Bookies and thereafter a bogus charge sheet was issued against him. There was no allegation of any recovery or DA case against him. The case against him was made out on the basis of oral statements of Cricket Bookies and Hawala Operators who were either arrested by him or were under investigation. While alleging that improbable allegations were made against him and that the IO, CBI misused some of the whatsapp messages related to intelligence gathering with the informer without showing the exact context , the Appellant stated that recently the CVC vide its letter dated 11.04.2019 (a copy of which was submitted to the Commission) had directed the CBI to start investigation against Page 2 of 7 Shri Karnal Singh and IO, CBI for sabotaging cricket betting investigation. The ED under Shri Karnal Singh had attached some properties of informer and other persons under PMLA to threaten him. The attachments had been dropped by the PMLA Adjudicating/ Tribunal Authorities which were issued based on same facts mentioned in the CBI Charge Sheet. Thus, the case was not passed in the "Preponderance of Probability Test" in Civil proceedings and that it was highly unlikely that it will pass the "Beyond Reasonable Doubt Test" in Criminal Proceedings. Explaining the larger public interest involved in the matter, the Appellant stated that the disclosure of information would help to unearth huge corruption and conspiracy with ISI to stop cricket betting investigation through which lakhs of crores of rupees goes outside of India every year.
The Commission was in receipt of a written submission from the Respondent dated 04.12.2019 wherein it was stated that the ONGC did not have a Guest House but a transit accommodation for its employees travelling to and fro far seas to overseas offshore Oil and Gas Fields for a very brief halt. The deemed PIO in his reply had indicated that the information was not held despite taking up the issue with the service provider. Therefore since the information was not held, it was prayed to dismiss the Appeal.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:Page 3 of 7
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
Similarly, the High Court of Bombay in Dr. Celsa Pinto, Ex-Officio Joint Secretary (School Education) vs The Goa State Information Commission on 3 April, 2008 (2008 (110) Bom L R 1238) had held as under:
"Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information."
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." The Commission also took note of the proviso to Section 8 of the RTI Act, 2005 wherein it has been stated that "..the information, which cannot be denied to the Parliament or a State legislature shall not be denied to any person..." In this context, the Commission drew reference to The Hon'ble Punjab and Haryana High Court decision in Civil Writ Petition No.1338 of 2011 ( M/s Hindustan Petroleum Corporation Ltd. V. The Central Information Commission and others) (Date of Decision: 24.01.2011) wherein it was held as under:
Page 4 of 718. "In the same sequence, proviso to Section 8 of the Act envisaged that the information, which cannot be denied to the Parliament or the State Legislature, shall not be denied to any person.
19. A co-joint reading of the aforesaid provisions will leave no manner of doubt that every information is not exempted. Only those informations, pertaining to commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, the information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information and the disclosure 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 authorities are satisfied that the larger public interest justifies the disclosure of such information, are exempted and not otherwise.
20.... Moreover, the CIC was satisfied that larger public interest justifies the disclosure of such information. Since the information sought cannot be denied to the Parliament or the State Legislature, so, the same cannot also be denied to respondent No.2, as contemplated in the proviso to section 8 of the Act."
A reference can also be made to the decision of the Hon'ble High Court of Delhi in the matter of Kamal Bhasin v. Radha Krishna Mathur and Ors., W.P.(C) 7218/2016 dated 01.11.2017 wherein it was held as under:
9. The proviso of Section 8 (1) of the Act is also important and reads as under: "Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."
10. By virtue of the aforesaid proviso to Section 8(1) of the Act, it is enacted that information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. In the present case, it was doubtful whether information as to the fate of the complaints can be considered as personal information that has no relationship with public interest or public activity. The activity of the Central Vigilance Department includes investigation and taking action in cases of corruption. Secondly, the complaint related to the allegations of misconduct and how these complaints were treated were clearly matter of public interest.
In the context of issuance of affidavit, if the information sought was not available with the Respondent, the Commission referred to the decision of the Hon'ble High Court of Delhi in Ajay Kumar Gulati v/s Pushpender Nath Pandey and anr. W.P.(C)3381/2011 dated 30/10/2013 wherein it was inter-alia observed as under: -
"9. When the writ petition came for hearing on 28.01.2013, the following direction was issued to respondent No. 2:
"In view of the above, respondent no. 2 shall file an affidavit stating therein clearly as to whether relevant record has been destroyed and if that is so, whether information with regard to the same has been entered in the Records Destroyed Register. If such a register is maintained, the relevant extract from the said Registrar will accompany the affidavit."Page 5 of 7
10. In order to bring the whole controversy to an end, the respondent, vide order dated 01.07.2013 was directed to file affidavit of the concerned General Manager responding to the information sought by the petitioner vide application dated 30.10.2008 in respect of items No.2 to 16. In compliance of the aforesaid order, the respondent bank has filed an affidavit of its General Manager stating therein that the information sought by the petitioner filed vide application dated 30.10.2008 could not be provided to him as the same was not traceable and is still not traceable in the bank, despite best efforts to trace the said information. In view of the categorical affidavit filed by none other than the General Manager of the Bank, it is quite clear that the information to the extent it is not supplied to the petitioner is not available with the bank in any form. Since the information is not available with the bank, there can be no question of granting any direction to the bank to provide the same to the petitioner.
11. In the facts and circumstances of the case, no further relief can be granted to the petitioner."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Respondent to re-examine the matter and furnish the information sought, failing which an affidavit to the effect of non-availability of information be provided to the Appellant within a period of 15 days from the date of receipt of this order, as agreed.
With regard to the written submission made by the Appellant making startling revelations about the cricket bookies and the role of the investigating authority officials, the Home Secretary, Government of India is advised to take cognizance of the matter for further necessary action.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का) (Information Commissioner) (सूचना आयु ) Authenticated true copy (अ भ मा णत स या पत त) (S. S. Rohilla) (एस.एस. रो ह ला) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 11.12.2019 Page 6 of 7 Copy to:-
1. The Home Secretary, Government of India, Ministry of Home Affairs, North Block, Cabinet Secretariat, Raisina Hill, New Delhi
2. The Secretary, Department of Revenue, M/o Finance, North Block, New Delhi - 110001
3. The CMD, Oil and Natural Gas Corporation Limited, Plot No. 5A- 5B Nelson Mandela Road, Vasant Kunj, New Delhi, 110070 Page 7 of 7