Central Information Commission
Samir Sardana vs Innternal Security Division on 1 March, 2021
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi-110067
ि तीय अपील /िशकायतसं या/ Second Appeal/Complaints Nos.
CIC/MHOME/C/2021/603445
CIC/ISDIV/A/2019/600789
CIC/ISDIV/A/2019/600838
CIC/ISDIV/A/2019/600839
CIC/ISDIV/A/2019/600884
CIC/ISDIV/C/2019/600929
CIC/MHOME/C/2019/603943
CIC/ISDIV/C/2019/645075
CIC/ISDIV/C/2019/603950
CIC/ISDIV/C/2019/603967
CIC/ISDIV/C/2020/693973
Shri Samir Sardana िशकायतकता /Complainant
Dehradun
VERSUS/बनाम
PIO ... ितवादीगण /Respondent
Ministry of Home Affairs, IS-I Div
Ministry of Home Affairs, IS-II Div
Ministry of Home Affairs, CIS Div
Ministry of Home Affairs, CTCR Div
Ministry of Home Affairs, Dy Secretary (HR)
Dy IG, NIA
Date of Hearing : 25.02.2021
Date of Decision : 01.03.2021
Chief Information Commissioner : Shri Y. K. Sinha
Page 1 of 22
Relevant facts emerging from Complaints/ Second Appeals:
Note: The present batch of Appeals/Complaints as listed above is
preferred by the same Appellant/ Complainant. Since the issues involved
in the present appeals/complaints aresimilar in nature, the Commission
proposes to club these said matters and adjudicate upon them all
together through the present order for the sake of brevity and avoidance
of multiple decisions.
(1) CIC/ISDIV/C/2020/603445
(2) CIC/MHOME/C/2019/603943
(3) CIC/ISDIV/C/2019/645075
Since all the instant Complaints pertain to the same Respondent i.e.,
CPIO, IS-II, M/o Home Affairs they are clubbed together for disposal by
the Commission.
Case Date of RTI CPIO reply First FAA's Complaint
No. Appeal Order filed/receivedon
dated dated
603445 03.12.2020 07.01.2021 04.02.2021 - 04.02.2021
603943 20.12.2019 22.02.2019 25.02.2019 11.03.2019 26.12.2018
645075 04.06.2019 01.07.2019 09.07.2019 08.08.2019 09.07.2019
CIC/ISDIV/C/2020/603445
Information soughtand background of the case The Complainant filed an RTI application dated 03.12.2020 with IS-II section of MHA seeking clarification on whether IS-II has sent a letter or email or fax to any department or body of GoI or the State Government relating to inquiry into his matter at any time after 31.01.2016 or relating to verification of his antecedents, etc. The CPIO, vide letter dated 07.01.2021 stated that MHA has not initiated or commenced any enquiry in his matter. The CPIO also stated that the copies of correspondence between Legal Cell, IS-II Division, MHA and the concerned Agencies on the matter cannot be provided under provisions of section 8(1)(h) of RTI Act, 2005. It was also mentioned that the Legal Cell, IS-II Division, MHA confirmed receipt of the concerned Writ Petition filed in Bombay High Court at Goa, Panji on 25.02.2020. The Complainant was apprised that a draft reply/affidavit has been sent to Government Counsel on 10.09.2020 and no Page 2 of 22 enquiry or investigation report has been sent to Goa High Court with respect to the above petition.
Dissatisfied with the reply of the CPIO, the Complainant filed a First Appeal dated 04.02.2021 and the same remained unheard.
Feeling aggrieved and dissatisfied, the Complainant approached the Commission with the instant Complaint.
CIC/MHOME/C/2019/603943 Information sought and background of the case The Complainant filed an RTI application dated 20.12.2019 with IS-II section of MHA seeking copy of letter No 25011/147/2016 LC dated 05.09.2016 to Goa Police by JS IS-II; reference number and dates of all letters sent by JS IS-II to Goa Police from 01.02.2016 till date of filing of the RTI application.
The CPIO vide reply dated 22.02.2019 stated that copies of correspondence between the MHA and the investigating agencies cannot be provided under section 8(1) (h) of RTI Act, 2005.
Dissatisfied with the response received from the CPIO, the Complainant filed a First Appeal dated 25.2.2019.
The FAA/Joint Secretary vide Order dated 11.03.2019 observed that the Complainant had filed different RTI applications time and again, with an altered formulation, repeatedly for seeking information on similar subject matters. Till date, the Appellant has filed seven RTI applications 28.8.2018, 15.10.2018, 19.10.2018, 26.10.2018, 29.10.2018, 2.11.2018 and 30.01.2019. All of which have been disposed of by the CPIO vide orders dated 3.10.2018, 13.11.2018, 20.11.2018, 26.11.2018, 29.11.2018, 30.11.2018 and 22.2.2019 respectively. Further, the Complainant has sought personal hearing, but he did not appear for personal hearing on 31.10.2018, 09.11.2018, 26.12.2018, 03.01.2019 and 07.03.2019. He is sending emails often wrongly addressed which has caused duplication of RTI applications and appeals and has clogged the public office. This has hampered the work of the CPIO and the FAA and thus obstructed the free flow of information to the deserving and genuine RTI applicants and has led to significant loss of time of the public authority.
Aggrieved and dissatisfied, the Complainant approached the Commission with the instant Complaint.
Page 3 of 22CIC/ISDIV/C/2019/645075 Information sought and background of the case The Complainant filed an RTI application dated 04.06.2019 seeking information with respect to enquiry and investigation initiated or commenced on the recommendation of the Ministry of Home or the Goa State or any other entity against him. He desired to inspect all the letters and Reports in this regard The CPIO/ Legal Cell, IS-II Division, MHA vide letter dated 01.07.2019 denied the information stating that the correspondence between Legal Cell, IS-II Division, MHA and the Investigating Agencies cannot be provided under section 8(1)(h) of RTI Act, 2005.
Dissatisfied with the reply of the CPIO, the Complainant filed a First Appeal dated 09.07.2019. The FAA vide order dated 08.08.2019 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the Complainant filed the instant Complainant.
Facts emerging during the hearing Written submissions have been received from the Complainant dated 14.02.2021 and the CPIO, Legal Cell, IS- II Division, MHA dated Nil which have been taken on record.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties.
The Complainant participated in the hearing through video conference. He stated that reply of the CPIO was void ab initio since in the decision of a Court in Goa it was recorded that IS-II Division is responsible for conducting inquiry against him and that notes/ cables were received by IS- II Division from RAW and Cabinet Secretariat. Furthermore, he stated that information sought in the RTI application was generic in nature and that in case disclosure of some information was exempted as per Section 8 (1) of the RTI Act, 2005, inspection of records should have been allowed to him. He also prayed for conversion of the instant Complaint into a Second Appeal in order to facilitate disclosure of information to him.
Page 4 of 22The Respondent was represented by Shri M.K. Chahar, US, Legal Cell, IS-II Division, MHA; Shri Vijay Kumar, Inspector, Legal Cell, IS- II Division, MHA and Shri B.G. Krishnan, UT Division, MHA through video conference. Shri Chahar stated that the IS-II Division of MHA is only a facilitator of investigation initiated by Goa Police. However, any information received by them or correspondence made by them in the matter with various investigating/ administrative authorities is confidential in nature pertaining to an ongoing matter concerning national security pending before the courts in Goa hence disclosure of such information relating to the inquiry/ investigation against the Appellant is exempted from disclosure u/s 8 (1) (h) of the RTI Act, 2005. He further stated that the opportunity of hearing provided by the FAA was also not availed off by the Complainant.
Decision Keeping in view the facts of the case and the submissions made by both the parties, the Commission observes that the instant matters are complaints filed u/s 18 of the RTI Act, 2005. Hence, the only adjudication required to be made by the Commission is to determine if the information has been denied with a malafide intention or unreasonable cause to the information seeker. Hon'ble Supreme Court in CIC & Anr vs State of Manipur and Anr Civil Appeal No 10787-10788 of 2011 decided on 12.12.2011, has laid down the principles pertaining to the scope of adjudication by the Commission on complaints filed u/s 18 vis a vis'' appeals under Section 19. The relevant extracts of the judgement are as under:
35..............Therefore, the procedure contemplated under Section 18 and Section 19 of the said Act is substantially different. The nature of the power under Section 18 is supervisory in character whereas the procedure under Section 19 is an appellate procedure and a person who is aggrieved by refusal in receiving the information which he has sought for can only seek redress in the manner provided in the statute, namely, by following the procedure under Section 19. This Court is, therefore, of the opinion that Section 7 read with Section 19 provides a complete statutory mechanism to a person who is aggrieved by refusal to receive information.
Such person has to get the information by following the aforesaid statutory provisions. The contention of the appellant that information can be accessed through Section 18 is contrary to the express provision of Section 19 of the Act. It is well known when a procedure is laid down statutorily and there is no challenge to the said statutory procedure the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory provision. ....................
37. We are of the view that Sections 18 and 19 of the Act serve two different purposes and lay down two different procedures and they provide two different remedies. One cannot be a substitute for the other.
Page 5 of 2238. It may be that sometime in statute words are used by way of abundant caution. The same is not the position here. Here a completely different procedure has been enacted under Section 19. If the interpretation advanced by the learned counsel for the respondent is accepted in that case Section 19 will become unworkable and especially Section 19(8) will be rendered a surplusage. Such an interpretation is totally opposed to the fundamental canons of construction. ................
42. Apart from that the procedure under Section 19 of the Act, when compared to Section 18, has several safeguards for protecting the interest of the person who has been refused the information he has sought. Section 19(5), in this connection, may be referred to. Section 19(5) puts the onus to justify the denial of request on the information officer. Therefore, it is for the officer to justify the denial. There is no such safeguard in Section 18. Apart from that the procedure under Section 19 is a time bound one but no limit is prescribed under Section 18. So out of the two procedures, between Section 18 and Section 19, the one under Section 19 is more beneficial to a person who has been denied access to information.
43. There is another aspect also. The procedure under Section 19 is an appellate procedure. A right of appeal is always a creature of statute. A right of appeal is a right of entering a superior forum for invoking its aid and interposition to correct errors of the inferior forum. It is a very valuable right. Therefore, when the statute confers such a right of appeal that must be exercised by a person who is aggrieved by reason of refusal to be furnished with the information."
Taking into consideration the documents available on record and the submissions made by both the parties, the Commission is of the view that no malafide intent can be attributed on the conduct of the CPIO hence no further intervention of the Commission u/s 18 of the RTI Act, 2005 is warranted.
Subsequent to the hearing, a written submission has been received by the Commission from the Complainant vide email dated 25.02.2021 wherein he has prayed to convert the instant matter into a second appeal inter alia on the grounds that the judgment of the Supreme Court in CIC &Anr vs State of Manipur and Anr was not applicable to the present matter since in the said matter, first appeal was not filed whereas in the instant matter he had filed a first appeal. He further stated that in the said matter, the SC gave an option to the person to still file a first appeal and the appellate authority was directed to consider the same on merits without insisting on period of limitation. In his submission, the Complainant also mentioned that "to save time and ensure that a case was not missed out, a complaint was filed as soon as the 1st appeal was made and was uploaded in the hope that later on the FAA order will also be uploaded".
Page 6 of 22The Commission has considered the submission of the Complainant. However, in the instant matters, it is observed that in Complaint Nos CIC/MHOME/C/2021/603445 and CIC/ISDIV/C/2019/645075, the Complainant filed the instant Complaints and the first appeal on the same date i.e., 04.02.2021 and 09.07.2019 respectively after which the Complainant approached the Commission to convert the instant matter into a second appeal. In Complaint No CIC/MHOME/C/2019/603943, the Complainant filed the instant Complaint on 26.12.2018 and the first appeal was filed subsequently on 25.02.2019. The order was passed against the first appeal on 11.03.2019 subsequent to which the Complainant approached the Commission to convert the instant matter into a second appeal.
As observed by the Commission in CIC/MHOME/C/2019/639233; CIC/MHOME/C/2019/639237 decided on 26.02.2021, the request of the Complainant to convert the instant matter to a Second Appeal was perhaps an afterthought to circumvent the procedural requirements. Moreover, it does not appear that the Complainant is unaware about the procedural requirements since in several cases such as CIC/ISDIV/A/2019/600789, CIC/ISDIV/A/2019/600838, etc, listed on the same day of hearing, the Complainant has satisfied the legal criteria for filing Second Appeals. Nonetheless, it is a settled position that ignorance of law is no excuse. Furthermore, in the judgement of CIC & Anr vs State of Manipur and Anr, the Apex Court while elaborating on the distinction between the procedure under Section 18 vs Section 19, also ruled that it is one of the well known canons of interpretation that no statute should be interpreted in such a manner as to render a part of it redundant or surplusage. Misusing the Section 18 mechanism to file complaints with a request to subsequently convert the same into Second Appeals will indeed render the Section 19 mechanism redundant.
With the above observations, the instant Complaints stand dismissed.
(4) CIC/ISDIV/A/2019/600789 (5) CIC/ISDIV/A/2019/600838 (6) CIC/ISDIV/A/2019/600839 Since all Second Appeals pertain to seeking information pertaining to the enquiry and investigation of NIA regarding arrest of Samir Sardana on 01.02.2016 at Vasco, Goa, they are clubbed together for disposal by the Commission.
Case No. Date of RTI CPIO reply First FAA's Second Appeal
Appeal Order filed/receivedon
dated dated
Page 7 of 22
600789 28.08.2018 03.10.2018 11.10.2018 9.11.2018 26.12.2018
600838 19.10.2018 20.11.2018 26.11.2018 9.11.2018 26.12.2018
600839 10.09.2018 13.11.2018 16.11.2018 - 26.12.2018
CIC/ISDIV/A/2019/600789
Information sought and background of the case
The Appellant filed RTI applications dated 28.08.2018 seeking information with respect to enquiry and investigation of NIA regarding arrest of Samir Sardana on 01.02.2016 at Vasco, Goa, his interrogation by NIA/IB/MI/NI/ATS-Goa/ATS- Mumbai/CID; whether the enquiry has been completed if so, copy of enquiry report; whether any report/letter has been received from Google/Yahoo relating to the enquiry /investigation.
The CPIO/Under Secretary vide reply dated 03.10.2018 denied disclosure of information under section 8(1)(h) of RTI Act, 2005. He also stated that Legal Cell, IS-II Division, MHA has not sent or received any report /letter from Google/Yahoo relating to the enquiry/investigation into Samir Sardana and also transferred the RTI application to Goa Police and NIA.
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 11.10.2018. The FAA vide order dated 09.11.2018 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the Appellant filed the instant Second Appeal CIC/ISDIV/A/2019/600838 Information sought and background of the case The Appellant filed an RTI application dated 19.10.2018 seeking information from IS- II Section with respect to enquiry and investigation of NIA regarding arrest of Samir Sardana on 01.02.2016 at Vasco, Goa, his interrogation by NIA/IB/MI/NI/ATS Mumbai/CID between 01.02.2016 and 11.02.2016., whether any inquiry was conducted regarding the antecedents of Appellant, etc. Page 8 of 22 The CPIO, Under Secretary vide letter dated 20.11.2018 stated that Legal Cell, IS- II Division, MHA has not prepared any enquiry Report or investigation/status/progress report in his case. Furthermore queries 4.4, 4.5, and 4.6 of the application were transferred to NIA and ATS Goa. It was also stated that the proviso to Section 8 (1) was not applicable to the instant case.
Dissatisfied with the reply of the CPIO, the Appellant filed a First Appeal dated 26.11.2018. The FAA vide order dated 09.11.2018 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the Appellant filed the instant Second Appeal.
CIC/ISDIV/A/2019/600839 Information sought and background of the case The Appellant filed an RTI applications dated 10.09.2018 seeking information with respect to enquiry and investigation of NIA regarding arrest of Samir Sardana on 01.02.2016 at Vasco, Goa, his interrogation by NIA/IB/MI/NI/ATS- Goa/ATS-Mumbai/CID; inspection of RTI register of JS-IS-II Division of MHA for 5 years, whether any FIR was filed against the Appellant by the NIA/ MOHA/IB against him and copy of the FIR, etc. The CPIO/Under Secretary vide reply dated 13.11.2018 denied disclosure of information on point no 2 under section 8(1)(h) of RTI Act, 2005. He also stated with regard to point no 3 that Legal Cell, IS-II Division, MHA has not sent or received any report /letter from Google/Yahoo relating to the enquiry/investigation into Samir Sardana and also transferred the RTI application to Goa Police and NIA.
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 11.10.2018 & 16.11.2018. The FAA vide order dated 09.11.2018 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the Appellant filed the instant Second Appeal.
Facts emerging during the hearing Written submissions have been received from the Appellant dated 14.02.2021 and the CPIO, Legal Cell, IS- II Division, MHA dated Nil which have been taken on record.
Page 9 of 22In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties.
The Appellant participated in the hearing through video conference. He stated that the reply provided was incorrect and misleading as statistical/ generic information relating to existence of inquiry/ investigation, date of preparation of inquiry report against him should have been provided by the Respondent. He further stated that in case the information sought was not available with the Respondent Public Authority, the exemption claimed by the CPIO u/s 8 (1) (h) of the RTI Act, 2005 was incorrect and that point wise information should be provided at this stage. Similarly, information pertaining to RTI register for the last 5 years was generic in nature which did not attract exemption u/s 8 (1) (h) of the RTI Act, 2005.
The Respondent was represented by Shri M.K. Chahar, US, Legal Cell, IS-II Division, MHA; Shri Vijay Kumar, Inspector, Legal Cell, IS-II Division, MHA, and Shri B.G. Krishnan, UT Division, MHA through video conference. Shri Chahar stated that the IS-II department of MHA is only a facilitator of investigation initiated by Goa Police. However, any information received by them or correspondence made by them in the matter with various investigating/ administrative authorities is confidential in nature pertaining to an ongoing matter concerning national security pending before the courts in Goa hence disclosure of such information relating to the inquiry/ investigation against the Appellant is exempted from disclosure u/s 8 (1) (h) of the RTI Act, 2005. He further stated the Appellant resorted to filing multiple RTI applications on similar issues by altering formulations and raising interpretative and hypothetical multiple queries requiring analysis of CPIO and causing disproportionate diversion of the resources of the Public Authority. Moreover, opportunity of hearing was also provided by the FAA which was not availed off by the Appellant.
Decision Keeping in view the facts of the case and the submissions made by both the parties, the Commission at the outset observes that as per the provisions of the RTI Act, 2005, the CPIO of a Public Authority is only bound to provide the available information as per available record and that answering hypothetical queries of information seekers, giving opinions/ interpretations to them for redressal of their personal grievances falls outside the scope of the RTI Act, 2005. Taking into consideration, the above observation, the Commission directs Shri M.K. Chahar, US, Legal Cell, IS-II Division, MHA to provide the copies of RTI register of JS-IS-II Division for 2 years (2017-2018) by 31.03.2021 as the information for 5 years will be large and voluminous.
With the above direction, the instant Second Appeals stand disposed off accordingly.
Page 10 of 22
(7) CIC/ISDIV/A/2019/600884
Case Date of RTI CPIO reply First FAA's Second Appeal
No. Appeal Order filed/receivedon
dated dated
600884 27.10.2018 29.11.2018 05.12.2018 08.03.2019 26.12.2018
Information sought and background of the case
The Appellant filed an RTI application dated 27.10.2018 seeking following information/inspection of records relating to the:
(i) number of complaints of corruption, human rights allegations against staff of IS-
II section of Ministry of Home Affairs since 2009.
(ii) Whether FIR register is maintained electronically or is keyed into a computer. If yes, the period for which it is so maintained.
Etc. The CPIO/ Under Secretary vide letter dated 29.11.2018 informed the Appellant that the replies have already been sent to him on 03.10.2018 and 20.11.2018 in reply to an earlier RTI application.
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 05.12.2018. The FAA/Joint Secretary IS-II Division, MHA vide order dated 08.03.2019 observed that the requisite information has been provided to the Appellant. The FAA also observed that the Appellant is in the habit of filing different RTI applications time and again by altering formulations repeatedly seeking information on similar subject matters.
Feeling aggrieved and dissatisfied, the Appellant filed the instant Second Appeal.
Facts emerging during the hearing Written submissions have been received from the Appellant dated 14.02.2021 and the CPIO, Legal Cell, IS- II Division, MHA dated Nil which have been taken on record.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties.
Page 11 of 22The Appellant participated in the hearing through video conference. He stated that the reply provided was incorrect and misleading as statistical/ generic information should have been provided by the Respondent. He further stated that the earlier replies referred to by the CPIO in its reply were not relevant in the instant matter.
The Respondent was represented by Shri M.K. Chahar, US, Legal Cell, IS-II Division, MHA; Shri Vijay Kumar, Inspector, Legal Cell, IS-II Division, MHA and Shri B.G. Krishnan, DS, UT Division, MHA through video conference. Shri Chahar stated that information as per available record was already provided to the Appellant and that similar queries have already been responded vide earlier replies dated 03.10.2018 and 20.11.2018. Hence, the Appellant was filing multiple RTI applications on similar issues by altering formulations causing disproportionate diversion of the resources of the Public Authority and that opportunity of hearing was provided by the FAA which was not availed off by the Appellant.
Decision Keeping in view the facts of the case and the submissions made by both the parties, the Commission is of the view that the reply provided vide letters dated 03.10.2018 and 20.11.2018 pertain to different queries from the ones raised in the instant RTI application. In the present matter, the Appellant has sought generic details pertaining to the number of complaints of corruption, human rights allegations against staff of IS-II section of Ministry of Home Affairs since 2009, method of maintaining registers recording such complaints, time limits within which the complaints should be inquired, etc which should have been replied point wise. However, the information is sought for almost 10 years from the year 2009 which may be large and voluminous. Hence, the Commission directs Shri M.K. Chahar, US, Legal Cell, IS-II Division, MHA to re-examine the RTI application and provide point wise information as per available records to the Appellant by 31.03.2021. In its reply for point no 1, the Respondent is directed to provide information for only 2 years from 27 October, 2016 to 27. October, 2018.
With the above direction, the instant Second Appeal stands disposed off accordingly.
(8) CIC/ISDIV/C/2019/600929
Case Date of RTI CPIO reply First FAA's Second Appeal
No. Appeal Order filed/receivedon
dated dated
600929 26.10.2018 26.11.2018 02.12.2018 - 26.12.2018
Page 12 of 22
Information sought and background of the case
The Complainant filed an RTI application dated 26.10.2018 seeking information relating to Shri Anoop Yadav working in Legal Section of IS-II Division, MHA and Shri Vishwanathan, US for Legal Cell, IS- II Division, MHA; their date of appointment, category of appointment etc and desired to inspect and take certified copies of service book and CRs of above mentioned officers.
The CPIO/Under Secretary vide reply dated 26.11.2018 provided a reply to the Complainant wherein it was inter alia stated that the information could not be disclosed to the parliament or state legislature.
Dissatisfied with the reply of the CPIO, the Complainant filed a First Appeal dated 02.12.2018and the same remained unheard.
Feeling aggrieved and dissatisfied, the Complainant approached the Commission with the instant Complaint.
Facts emerging during the hearing Written submissions have been received from the Complainant dated 14.02.2021 and the CPIO, Legal Cell, IS- II Division, MHA dated Nil which have been taken on record.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties.
The Complainant participated in the hearing through video conference. He stated that the information sought was in the larger public interest as it pertained to public servants on whom provisions of CCS Conduct Rules were applicable and that it pertained to activities performed by them in their official capacity.
The Respondent was represented by Shri M.K. Chahar, US, Legal Cell, IS-II Division, MHA, Shri Vijay Kumar, Inspector, Legal Cell, IS-II, MHA and Shri B.G. Krishnan, Dy Secretary, UT Division, MHA, Legal Cell through video conference . The Respondent reiterated the response of the CPIO/ FAA and stated that the being personal information of third parties, the same was denied u/s 8 (1) (j) of the RTI Act, 2005.
Facts emerging in Course of Hearing:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission at the outset observes that an appropriate response is provided by the CPIO in this matter as the information sought is personal in Page 13 of 22 nature. The Hon'ble Supreme Court in R.K. Jain vs. Union of India, SLP(C) No. 22609 of 2012 dated 16.04.2013 has held that disclosure of ACR of a third party is exempted in view of the earlier decision of the Apex Court in Girish Ramachandra Deshpande's matter. The relevant extract of the decision in R.K. Jain vs Union of India matter is as under:
"17. In view of the discussion made above and the decision in this Court in Girish Ramchandra Deshpande(supra), as the appellant sought for inspection of documents relating to the ACR of the Member, CESTAT, inter alia, relating to adverse entries in the ACR and the 'follow up action' taken therein on the question of integrity, we find no reason to interfere with the impugned judgment passed by the Division Bench whe reby the order passed by the learned Single Judge was affirmed."
Furthermore, in a recent judgment dated 13.11.2019 in Civil Appeal No. 10044 OF 2010 with Civil Appeal No. 10045 OF 2010 and Civil Appeal No. 2683 of 2010, the Hon'ble Supreme Court of India, had observed the following with reference to third party information exempted u/s 8 (1) (j) of the RTI Act, 2005:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate 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 Commission also notes that the instant matter is a complaint filed u/s 18 of the RTI Act, 2005. Hence, the only adjudication required to be made by the Commission is to determine if the information has been denied with a malafide intention or unreasonable cause to the information seeker which the Commission finds is not the case in the instant matters. Hence no further intervention is required.
With the above observations, the instant Complaint stands dismissed accordingly.
(9) CIC/ISDIV/C/2019/603950
Page 14 of 22
Case Date of RTI CPIO reply First FAA's Second Appeal
No. Appeal Order filed/received
dated dated on
603950 18.12.2018 07.2.2019 01.03.2019 18.03.2019 26.12.2018
The Complainant filed an RTI application dated 18.12.2018 seeking information on whether FIR has been filed by MOHA against him regarding enquiry under National Security Act and whether enquiry report has been prepared with respect to his arrest on 01.02.2016 and sent to the Government of India or any organ of the Government NIA/IB/MI/NI/ATS-Goa/ATS-Mumbai/CID The CPIO/Dy. Secretary(S) vide letter dated 07.02.2019 stated that no report/case has been received under the National Security Act, 1980 against Shri Sameer Sardana since 2016 till date from any State Government and that other parts of application pertains to CIS, CTCR and IS-1 sections of MHA. Therefore, the CPIO transferred the RTI application to the concerned CPIOs.
Dissatisfied with the reply of the CPIO, the Complainant filed a First Appeal dated 01.03.2019. The FAA/JS(IS-II) vide order dated 18.03.2019 upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied, the Complainant approached the Commission with the instant Complaint.
Facts emerging during the hearing Written submissions have been received from the Complainant dated 14.02.2021 and the CPIO, Dy Secretary (S) IS- II Division, MHA dated 22.02.2021 which have been taken on record.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties.
The Complainant participated in the hearing through video conference. He stated that the RTI application was addressed to the IS-II Division, MHA since it was the concerned department within the MHA coordinating his investigation/ inquiry. However, the application was incorrectly transferred to the CIS Division, CTCR Division and IS-I Division instead of directly providing the information. He therefore prayed for conversion of the instant Complaint into a Second Appeal and to direct the Respondent (IS-II) to issue an affidavit regarding non- availability of information.
Page 15 of 22The Respondent was represented by Shri Dharmender Kumar, DS and CPIO, IS- II Division; Shri Praveen Kumar Rai, Director, CTCR, MHA and Shri Praveen Kumar Yadav, DS, CIS Division, MHA through video conference. Shri Kumar stated that since the information was not available with them, the application was transferred to the CIS Division, CTCR Division and IS-I Division and that there existed no malafide intent on their part to deny the information to the Complainant. Shri Rai stated that since the information was not available with them, a reply with the remark 'Nil' was provided to the Complainant. Shri Yadav stated that the CIS Division only dealt with cyber crime. Since the Complainant's case did not pertain to cyber crimes the same was not dealt with by their division.
Decision Keeping in view the facts of the case and the submissions made by both the parties, the Commission observes that the instant matters are complaints filed u/s 18 of the RTI Act, 2005. Hence, the only adjudication required to be made by the Commission is to determine if the information has been denied with a malafide intention or unreasonable cause to the information seeker. Hon'ble Supreme Court in CIC & Anr vs State of Manipur and Anr Civil Appeal No 10787-10788 of 2011 decided on 12.12.2011, has laid down the principles pertaining to the scope of adjudication by the Commission on complaints filed u/s 18 vis a vis'' appeals under Section 19. The relevant extracts of the judgement are mentioned in the aforementioned decisions of the Commission in CIC/ISDIV/C/2020/603445; CIC/MHOME/C/2019/603943 and CIC/ISDIV/C/2019/645075.
Taking into consideration the documents available on record and the submissions made by both the parties, the Commission is of the view that no malafide intent can be attributed on the conduct of the CPIO hence no further intervention of the Commission u/s 18 of the RTI Act, 2005 is warranted.
Subsequent to the hearing, a written submission has been received by the Commission from the Complainant vide email dated 25.02.2021 wherein he has prayed to convert the instant matter into a second appeal inter alia on the grounds that the judgment of the Supreme Court in CIC & Anr vs State of Manipur and Anr was not applicable to the present matter since in the said matter, first appeal was not filed whereas in the instant matter he had filed a first appeal. He further stated that in the said matter, the SC gave an option to the person to still file a first appeal and the appellate authority was directed to consider the same on merits without insisting on period of limitation. In his submission, the Complainant also mentioned that "to save time and ensure that a case was not missed out, a complaint was filed as soon as the 1st appeal was made and was uploaded in the hope that later on the FAA order will also be uploaded".
Page 16 of 22The Commission has considered the submission of the Complainant. However, in the instant matter, it is observed that the Complainant filed the instant Complaint on 26.12.2018 while the first appeal was filed on a subsequent date i.e., 01.03.2019 which was decided by the FAA on 18.03.2019. Subsequently, the Complainant approached the Commission to convert the instant matter into a second appeal. In this context, the Commission refers to its observation in CIC/ISDIV/C/2020/603445; CIC/MHOME/C/2019/603943 and CIC/ISDIV/C/2019/645075 and observes that in the instant matter, filing of the first appeal was an afterthought perhaps to circumvent the procedural requirements.
With the above observations, the instant Complaint stands dismissed.
(10) CIC/ISDIV/C/2019/603967
Case Date of RTI CPIO reply First FAA's Second Appeal
No. Appeal Order filed/received
dated dated on
603967 18.12.2018 20.2.2019 26.02.2019 23.03.2019 26.12.2018
The Complainant filed an RTI application dated 18.12.2018 regarding his arrest on 01.02.2016 at Vasco, Goa and subsequently his interrogation by NIA including matters relating to National Security Act and whether enquiry report has been prepared with respect to arrest of Samir Sardana on 01.02.2016 and sent to the Government of India or any organ of the Government NIA/IB/MI/NI/ATS-Goa/ATS-Mumbai/CID; inspection of the RTI register of IS- II for the last five years w.r.t NSA, whether an FIR has been filed against him, if so date of FIR.
The CPIO and DS (HR), IS-II Division vide letter dated 20.02.2019 stated that no information is available with them.
Dissatisfied with the reply of the CPIO, the Appellant filed a First Appeal dated 26.02.2019. The FAA/JS(IS-I) vide order dated 23.03.2019 upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied,Complainant approached the Commission with the instant Complaint.
Facts emerging during the hearing Written submissions have been received from the CPIO, Dy Secretary (HR) IS- II Division, MHA dated 22.02.2021 which have been taken on record.
Page 17 of 22In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties.
The Complainant participated in the hearing through video conference. He stated that the RTI application was addressed to the IS-II Division, MHA since it was the concerned department within the MHA coordinating his investigation/ inquiry. However, the application was incorrectly transferred to several departments instead of directly providing the information. He therefore prayed for conversion of the instant Complaint into a Second Appeal and to direct the Respondent (IS-II) to provide the information.
The Respondent was represented by Shri Dharmender Kumar, DS and CPIO, IS- II Division and Smt Nishtha Tiwari, Dir (L&O), IS-I Division through video conference. Shri Kumar stated that since the information sought was not available with them, vide letter dated 20.02.2019, Dy Secretary (HR) and CPIO, replied with the remark Nil and that there existed no malafide intent on their part to deny the information to the Complainant. Smt Tiwari also stated that the issues raised in the RTI application did not pertain to their department hence a reply with the remark 'Nil' was provided to the Complainant.
Decision Keeping in view the facts of the case and the submissions made by both the parties, the Commission observes that the instant matters are complaints filed u/s 18 of the RTI Act, 2005. Hence, the only adjudication required to be made by the Commission is to determine if the information has been denied with a malafide intention or unreasonable cause to the information seeker. Hon'ble Supreme Court in CIC & Anr vs State of Manipur and Anr Civil Appeal No 10787-10788 of 2011 decided on 12.12.2011, has laid down the principles pertaining to the scope of adjudication by the Commission on complaints filed u/s 18 vis a vis'' appeals under Section 19. The relevant extracts of the judgement are mentioned in the aforementioned decision of the Commission in CIC/ISDIV/C/2020/603445; CIC/MHOME/C/2019/603943 and CIC/ISDIV/C/2019/645075.
Taking into consideration the documents available on record and the submissions made by both the parties, the Commission is of the view that no malafide intent can be attributed on the conduct of the CPIO hence no further intervention of the Commission u/s 18 of the RTI Act, 2005 is warranted.
Subsequent to the hearing, a written submission has been received by the Commission from the Complainant vide email dated 25.02.2021 wherein he has prayed to convert the instant matter into a second appeal inter alia on the grounds that the judgment of the Supreme Court in CIC & Anr vs State of Manipur and Anr was not applicable to the present matter since in the said matter, first appeal was not filed whereas in the instant matter he had filed a Page 18 of 22 first appeal. He further stated that in the said matter, the SC gave an option to the person to still file a first appeal and the appellate authority was directed to consider the same on merits without insisting on period of limitation. In his submission, the Complainant also mentioned that "to save time and ensure that a case was not missed out, a complaint was filed as soon as the 1st appeal was made and was uploaded in the hope that later on the FAA order will also be uploaded".
The Commission has considered the submission of the Complainant. However, in the instant matter, it is observed that the Complainant filed the instant Complaint on 26.12.2018 while the First Appeal was filed on a subsequent date i.e., 26.02.2019 which was adjudicated on 23.03.2019 i.e., within the stipulated time period. Subsequently, the Complainant approached the Commission to convert the instant matter into a second appeal. In this context, the Commission refers to its observation in CIC/ISDIV/C/2020/603445; CIC/MHOME/C/2019/603943 and CIC/ISDIV/C/2019/645075 and observes that in the instant matter, filing of the first appeal was an afterthought perhaps to circumvent the procedural requirements.
With the above observations, the instant Complaint stands dismissed.
(11) CIC/ISDIV/C/2020/693973
Case Date of RTI CPIO reply First FAA's Second Appeal
No. Appeal Order filed/received
dated dated on
693973 10.10.2020 - 27.11.2020 - 27.11.2020
The Complainant filed an RTI application dated 10.10.2020 seeking information on whether IS-II Division, MHA had initiated or conducted any enquiry/investigation against him from 01.01.2016 till date. If so, whether enquiry or investigation report was prepared and RC number generated in this regard and the same has been completed, inspection of the enquiry/investigation report, etc. Having not received reply of the CPIO, the Complainant filed First Appeal dated 27.11.2020 which remained unheard.
Feeling aggrieved over non receipt of the information, the Complainant approached the Commission with the instant Complaint.
Facts emerging in Course of Hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties.Page 19 of 22
The Complainant participated in the hearing through video conference. He stated that the RTI application was addressed to the IS-II Division, MHA since it was the concerned department within the MHA coordinating his investigation/ inquiry. However, the application was incorrectly transferred by the IS-II Division instead of directly providing the information. He therefore prayed for conversion of the instant Complaint into a Second Appeal and to direct the Respondent (IS-II) to issue an affidavit regarding non-availability of information.
The Respondent was represented by Shri Dharmender Kumar, DS and Shri Praveen Kumar Yadav, DS, CIS Division, MHA through video conference. Shri Kumar stated that vide reply dated 13.11.2020, the Complainant was informed by the CPIO and Director (S), IS-II Division, CDN- Section that the information sought was not available with them. In its reply, the CPIO also made a reference to the reply of Director CT, CTCR Division dated 21.10.2020 where a reply with the remark 'Nil' was provided. Shri Kumar further stated that in the instant matter, no First Appeal was received by them.
Decision:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission observes that the instant matters are complaints filed u/s 18 of the RTI Act, 2005. Hence, the only adjudication required to be made by the Commission is to determine if the information has been denied with a malafide intention or unreasonable cause to the information seeker. Hon'ble Supreme Court in CIC & Anr vs State of Manipur and Anr Civil Appeal No 10787-10788 of 2011 decided on 12.12.2011, has laid down the principles pertaining to the scope of adjudication by the Commission on complaints filed u/s 18 vis a vis'' appeals under Section 19. The relevant extracts of the judgement are mentioned in the aforementioned decision of the Commission in CIC/ISDIV/C/2020/603445; CIC/MHOME/C/2019/603943 and CIC/ISDIV/C/2019/645075.
Taking into consideration the documents available on record and the submissions made by both the parties, the Commission is of the view that no malafide intent can be attributed on the conduct of the CPIO hence no further intervention of the Commission u/s 18 of the RTI Act, 2005 is warranted.
With the above observations, the instant Complaint stands dismissed.
Before parting with these Second Appeals/Complaints, the Commission observes that the Complainant/ Appellant has resorted to filing multiple RTI applications on issues which essentially pertain to his personal grievance. Even if the Commission were to reluctantly acknowledge that this is an attempt on the Appellant's part to fight corruption, the means adopted by him stifles and defeats the very purpose of the RTI Act. As much as a CPIO has a statutory responsibility of complying with the provisions of the RTI Act, it is also expected Page 20 of 22 of the RTI Applicant/s to not undermine the spirit of the RTI Act by clogging the system with such a barrage of RTI applications, merely claiming that these are aimed at combatting corruption.
The Supreme Court in Advocate General, Bihar vs. M.P. Khair Industries (AIR 1980 SC 946) has termed "....filing of frivolous and vexatious petitions as abuse of the RTI process. Some of such abuses specifically mentioned by the Apex Court include initiating or carrying on proceedings which are wanting in bona- fides or which are frivolous, vexatious or oppressive. The Apex Court also observed that in such cases the Court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting taking up further proceedings. ...."
The Commission also observes that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and not to venture into the merits of a case or redressal of grievance. The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."Page 21 of 22
Thus, based on the above mentioned observation, the Commission advises the Appellant to abstain from filing multiple RTI applications on similar issues essentially related to redressal of his grievances.
The Commission also notes that the Applicants filing a request under RTI Act should keep in mind that they should not transgress the letter and spirit of the RTI Act by filing multipleRTI Applications, which are cumbersome, protracted and circumlocutory in nature. The Commission admonishes the Appellant for going beyond the stipulated word limit, which has not only caused problems to the Respondent to ascertain what information has been sought but also to which Department the said application/ queries pertain. In this context, Rule 3 of the RTI Rules, 2012 is pertinent which says:
3. Application Fee.- An application under sub-section (1) of section 6 of the Act shall be accompanied by a fee of rupees ten and shall ordinarily not contain more than five hundred words, excluding annexures, containing address of the Central Public Information Officer and that of the applicant:
Provided that no application shall be rejected only on the ground that it contains more than five hundred words.
The Commission is, therefore, of the opinion that the Complainant/ Appellant being a citizen who claims that the Respondent public authority is not functioning properly must know his limitations while filing an RTI query before any Respondent public authority. The Commission cautions him that in future, he must adhere to the relevant provisions of the RTI Rules, 2012 while filing RTI Applications before any public authority.
Y. K. Sinha (वाई. के .िस हा) Chief Information Commissioner(मु य सूचना आयु ) Authenticated true copy (अिभ मािणतस यािपत ित) S. K. Chitkara (एस. के . िचटकारा) Dy. Registrar (उप-पंजीयक) 011-26180514 Page 22 of 22