Central Information Commission
Samir Sardana vs Indo-Tibetan Border Police on 26 July, 2021
के न्द्रीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमागग, मुननरका
Baba Gangnath Marg, Munirka
नईदिल्ली, New Delhi-110067
निकायत संख्या/ Complaint Nos. CIC/ITIBP/C/2019/644478
CIC/ITIBP/C/2019/640029
Shri Samir Sardana, ..... निकायतकताग/Complainant
Dehradun
VERSUS/बनाम
PIO, ITBP ...प्रनतवािीगण/Respondent
Through: Dr. Chandan Debnath -Dy. Director,
Medical - CMO(SG) and Shri Mukesh
Dhasmana - Commandant (GD)
Date of Hearing : 26.07.2021
Date of Decision : 26.07.2021
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
Note: The Complaints as listed above have been preferred by the same
Complainant against the same Respondent. Hence the matters are
adjudicated together through the present order for the sake of brevity and
avoidance of multiple proceedings.
Case RTI Filed CPIO reply First appeal FAO Complaints
No. on dated
644478 14.05.2019 27.05.2019 03.07.2019 10.07.2019 03.07.2019
640029 16.04.2019 01.05.2019 07.05.2019 15.05.2019 30.04.2019
Information soughtand background of the case:
(1) CIC/ITIBP/C/2019/644478 The Complainant filed an RTI application dated 14.05.2019 seeking information about ITBP staff against whom actions such as termination, dismissal, removal from service, extortion, disgraceful conduct, miscellaneous offences etc., have been taken with respect to allegations of corruption and or human rights allegations during the last ten years.Page 1 of 5
The CPIO, vide letter dated 27.05.2021 informed the Complainant that in terms of section 24 of the RTI Act, 2005, ITBP as listed in Second Schedule has been given exemption to provide information under the provisions of RTI Act, 2005 except with respect to cases pertaining to corruption and human rights. The Complainant was further informed that his RTI application does not reflect any fact that matter pertains to corruption and human rights violation.
Dissatisfied with the reply of the CPIO, the Complainant filed First Appeal dated 03.07.2019 which was decided vide order dated 10.07.2019 upholding the PIO's reply.
Aggrieved and dissatisfied, the Complainant approached the Commission with the instant Complaint.
Facts arising during the course of hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing through video conference was scheduled after giving prior notice to both the parties. Both parties participated and are duly heard through video conference. They reiterated their respective contentions.
Decision:
Upon hearing the averments of the parties, it is noted that the Respondent had denied information citing Section 24 of the RTI Act. In this regard, reference is placed on the Commission's decision in the case of Rekha Munjal vs. PIO, BSF [CIC/BDRSF/A/2019/153649 and CIC/BDRSF/A/2019/106193] dated 05.05.2020, wherein it was held thus:
".... It is an established factual position that the Respondent public authority is enlisted in Second Schedule of the RTI Act and as such, exempt from provisions of this Act under Section 24 of the Act. The only exception carved out to the exemption is wherein information sought relates to allegations of corruption/human rights violations and approval to disclosure is accorded by this Commission. The terms "allegation of corruption" and "violation of human rights" are not defined in the Act, it is thus open for the Commission to decide the veracity of allegations on both counts on a case to case basis. The allegations of corruption and human rights violation should be construed to mean verifiable allegations, in other words, a mere allegation or perception of an individual about corruption or human rights violation is not sufficient in the absence of any supporting material that proves such a charge in its evidentiary value has strength. It is a well settled proposition that every RTI applicant who utters the word "corruption" or "violation of human rights" does not become entitled to get information from public authorities exempted under Section 24(1) of the RTI Act. The onus of substantiating the allegation of corruption and human rights violation lies on the RTI applicant and Page 2 of 5 'perception' is certainly no ground to agitate for right to information under the proviso to Section 24(1) of the RTI Act. The Commission is convinced that facts of the instant case fail to fulfill either of the exceptions, viz. corruption or human rights violation and hence these appeals are barred by operation of the Section 24 of the RTI Act."
Furthermore, considering the nature of queries, the Commission finds it pertinent to place reliance on the decisions of the Apex Court in the cases of:
i) Girish Ramchandra Deshpande v. Central Information Commissioner & Others, ii) Canara Bank v. C.S. Shyam and Another and the latest decision dated 13.11.2019 in the case of Central Public Information Officer, Supreme Court of India vs. Subhash Chandra Agarwal whereby it was held that:
"...personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive."
The information sought by the Complainant is held by the Respondent in the capacity of an employer, in fiduciary capacity. The information so shared between employer-employee cannot be disseminated in public domain, infringing the privacy of the employees concerned. Such information has been held as personal in nature, by the Apex Court in terms of the above decision. The Complainant has not been able to demonstrate any larger public interest which will be served by the disclosure of the information sought by him. Thus apart from the exemption claimed by the Respondent under Section 24 of the RTI Act, the information is exempt even under Section 8(1)(j) and 8(1)(e) of the RTI Act.
As such the Commission finds no lacunae in the response of the Respondent. Considering the fact no malafide is found in denial of information by the Respondent, no merit is found in the Complaint at hand.
(2) CIC/ITIBP/C/2019/640029 The Complainant filed an RTI application dated 16.04.2019 seeking information regarding
(i) audit/investigation/diligence coordinates pertaining to recruitment, promotions, medical procedures for ITBP staff, canteen purchases and stocks, food and construction contracts, PWD contracts, fuel and logistics, munitions purchases and stocks, scrap disposal etc. Page 3 of 5
(ii) audit/investigation/diligence coordinates pertaining to ITBP processes and policies related to drugs smuggling/trafficking arms and ammunition, counterfeit currency etc.
(iii) Inspection of vigilance records of the ITBP w.r.t the allegations of corruption for the last 8 years and reports submitted to Ministry of Home Affairs and related parliament questions etc. The CPIO, vide letter dated 01.05.2019 informed the Appellant that he is seeking personnel management of ITBP and in terms of Section 24 of the RTI Act, 2005, ITBP is listed in the Second Schedule of the RTI Act as an organisation which falls outside the purview of the provisions of RTI Act, 2005.
Dissatisfied with the reply of the CPIO, the Complainant filed First Appeal dated 07.05.2019. The FAA vide order dated 15.05.2019 upheld the reply of the CPIO.
Aggrieved and dissatisfied, the Complainant approached the Commission with the instant Complaint.
Facts arising during the course of hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing through video conference was scheduled after giving prior notice to both the parties. Both parties participated and are duly heard through video conference. They reiterated their respective contentions.
Decision:
Upon hearing the averments of the parties, it is noted that the Respondent had denied information citing Section 24 of the RTI Act. In this regard, reference is placed on the Commission's decision in the case of Rekha Munjal vs. PIO, BSF [CIC/BDRSF/A/2019/153649 and CIC/BDRSF/A/2019/106193] dated 05.05.2020, wherein it was held thus:
".... It is an established factual position that the Respondent public authority is enlisted in Second Schedule of the RTI Act and as such, exempt from provisions of this Act under Section 24 of the Act. The only exception carved out to the exemption is wherein information sought relates to allegations of corruption/human rights violations and approval to disclosure is accorded by this Commission. The terms "allegation of corruption" and "violation of human rights" are not defined in the Act, it is thus open for the Commission to decide the veracity of allegations on both counts on a case to case basis. The allegations of corruption and human rights violation should be construed to mean verifiable allegations, in other words, a mere allegation or perception of an individual about corruption or human rights violation is not sufficient in the absence of any supporting material that proves such a charge in its evidentiary value has strength. It is a well settled proposition that every RTI applicant who utters the word "corruption" or "violation of human rights" does not become entitled to get information from public authorities exempted Page 4 of 5 under Section 24(1) of the RTI Act. The onus of substantiating the allegation of corruption and human rights violation lies on the RTI applicant and 'perception' is certainly no ground to agitate for right to information under the proviso to Section 24(1) of the RTI Act. The Commission is convinced that facts of the instant case fail to fulfill either of the exceptions, viz. corruption or human rights violation and hence these appeals are barred by operation of the Section 24 of the RTI Act."
In the light of the abovementioned facts, the Commission is not inclined to entertain such fishing and roving queries, particularly since no verifiable case of human rights violation or corruption has been established by the Complainant. The Commission does not find any ground for further adjudication since no malafide is found in denial of information by the Respondent.
The above cases are disposed off as such.
Y. K. Sinha(वाई. के .नसन्द्हा) Chief Information Commissioner(मुख्य सूचना आयुक्त) Authenticated true copy (अभिप्रमाभितसत्याभितप्रभत) S. K. Chitkara (एस. के . नचटकारा) Dy. Registrar (उप-पंजीयक) 011-26180514 Page 5 of 5