Central Information Commission
Love Gogia vs Ministry Of External Affairs on 10 June, 2020
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/MOEAF/A/2018/157219-BJ
Mr. Love Gogia
(E mail [email protected])
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Dy. Secretary (PB),
Ministry of External Affairs,
Jawaharlal Nehru Bhawan,
23-D, Room No. 4056,
Janpath, New Delhi - 11
... ितवादीगण /Respondent
Date of Hearing : 10.06.2020
Date of Decision : 10.06.2020
Date of RTI application 10.05.2018
CPIO's response 16.05.2018
Date of the First Appeal 17.05.2018
First Appellate Authority's response 08.06.2018
Date of diarised receipt of Appeal by the Commission 18.09.2018
ORDER
FACTS The Appellant vide his RTI application sought information on 03 points regarding in respect of Ms. Tannu Dua, D/o Mr. Ashok Kumar Dua & W/o Mr. Love Gogia, Personal Assistant, MEA including declarations like Income, Assets (Movable or Immovable or both)/Liabilities for the years 2011 till date; declarations like Dowry, Expenditure incurred by her/her family in her marriage and leave record from year 201I to till date. The CPIO vide letter dated 16.05.2018, denied disclosure of information under Section 8(1)(j) of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 08.06.2018, while upholding the CPIO's response referred to the decision of the Apex Court in Girish Ramchandra Deshpande vs. Central Page 1 of 8 Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 and stated that the onus to prove public interest in the matter was on the Appellant.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Love Gogia through TC;
Respondent: Mr. T. D. Bhutia, Deputy Secretary (PB & Pension), M/o External Affairs through TC;
The Appellant reiterated the contents of the RTI application and stated that the desired information was incorrectly denied to him u/s 8 (1)(j) of the RTI Act,. 2005. While stating that he was the legally wedded husband of Ms. Tannu Dua, the Appellant referred to his consolidated written submission and submitted that being a public servant, Ms Dua was required to declare her assets and liabilities to the Public Authority. Furthermore, payment of dowry at the time of marriage may be a private affair of a person but it amounts to misconduct u/s 13A of the Central Civil Services (Conduct) Rules, 1964 and a public servant was required to make declaration about it before her employer. He further stated that he only required the date for which the concerned employee had taken leave and not the reasons for availing the leave. During the hearing, the Appellant also referred to the decision of the Commission in Ms. Asmita Sachin Waman Vs CPIO Ministry of External Affairs, CIC/PASOF/A/2018/155140-BJ dated 15.05.2020 and argued that in the said matter, information regarding the passport details of her husband were allowed to be disclosed to the wife. In its reply, the Respondent re-iterated the response of the CPIO/ FAA as also their written submission and stated that in the garb of public interest, the Appellant was misusing the RTI mechanism by filing multiple RTI applications pertaining to his wife with whom he was having several matrimonial disputes pending before Courts. While stating that responding to the multiple RTI applications filed by the Appellant was causing disproportionate diversion of the meager resources, the Respondent submitted that the leave records of the employee could not be disclosed since it contained the reasons for availing leave which was personal information of the concerned employee. As regards, the information regarding dowry expenditure reported by the employee, the Respondent stated that no such information was available since it was not compiled by the Public Authority. However, with regard to the property returns filed by the employee, the Respondent agreed to disclose the same after obtaining it from the concerned department. The Appellant expressed his discontent regarding the Respondent's submissions and stated that the copy of the written submission filed by the Respondent was not provided to him. The Respondent agreed to forward a copy of the written submission to the Appellant on his email id: [email protected].
The Commission was in receipt of a written submission from the Appellant dated Nil inter alia on four grounds that the A. Information sought is not personal information of an individual B Information is sought by the spouse, hence should be provided. C. Disclosure of information is in public interest and D. Denial of information by the CPIO / FAA is on mala fide ground. The Appellant thus prayed for allowing his applications (second appeals / complaints under reference Page 2 of 8 above) in the interest of justice and spirit of RTI, to provide him the copy of the Show cause notices, if any issued by the Commission to the public authority, copy of the written submission made by the public authority in response to the notice issued by the Commission be provided to him too and an opportunity of hearing on every scheduled date of hearing in complaints cases. In support of his contention, the Appellant referred to the following decisions:
A Information sought is not personal information of an individual:
1. R. Rajagopal Vs. State of Tamil Nadu (Supreme Court of India
2. Writ Petition (M/S) No. 2489 of 2016 (High Court of Uttarakhand)
3. Kashinath J Shetye Vs PIO, Electricity Department Goa (High Court of Bombay)
4. P. Rajasekar Vs CPIO RBI (Decision No. CIC/SG/A/2011/002976/17296 dated 10.02.2012) (CIC)
5. CIC/SG/A/2012/000342/17862 (CIC)
6. Kashinath Shetye vs Dinesh Vaghela (High Court of Bombay, 2009) B Information is sought by the spouse, hence should be provided.
7. Smt. Sunita Jain Vs. Pawan Kumar Jain and others W.A. No. 168/2015 and Smt. Sunita Jain Vs. Bharat Sanchar Nigam Limited and others W.A. No. 170/2015 dated 15.05.2018 (High Court of MP, Division Bench)
8. Rajesh Ramachandra Kidile vs. Maharashtra SIC and Ors in W.P. No. 1766 of 2016 dated 22.10.2018 (High Court of Bombay (Nagpur Bench)
9. Ms. Asmita Sachin Waman Vs CPIO Ministry of External Affairs, CIC/PASOF/A/2018/155140-BJ dated 15.05.2020 (CIC)
10. File No. CIC/RM/A/2012/000038/LS (CIC)
11. Kusum Sharma Vs. Mahinder Kumar Sharma (FAO 369/1996 decided on 14th January 2015), (Delhi High Court)
12. Jasleen Singh Vs Gurleen Kaur (CRM-M 36522/2019 (O&M)) decided on 06.01.2020 (Punjab and Haryana High Court)
13. CIC/SA/A/2014/000433 (CIC)
14. Writ Petition No. 10690 of 2017 on dated 06.09.2017 (High Court of Bombay (Aurangabad Bench) Page 3 of 8 C. Disclosure of information is in public interest
15. A.M.Kalra v. PEC University of Technology No. CIC/RM/A/2014/004365-SA (CIC) D. Denial of information by the CPIO / FAA is on mala fide ground
16. Bobby Luthra Sinha Vs CPIO, Ministry of External Affairs CIC/MOEAF/A/2017/160980 dated 22.05.2018 (CIC)
17. Mr. Avishek Goena Vs Union of India. Writ Petition No. 33290 of 2013 (High Court of Calcutta)
18. Sangita Kumari Vs Railway Board CIC/AB/C/2016/000044-AB dated 31.07.2017
19. File No. CIC/MOEAF/A/2019/646057 & CIC/MOEAF/C/2019/646092 (CIC)
20. Ridge Vs. Baldwin [1963] UKHL 2
21. Uma Nath Pandey v. State of U.P. AIR 2009 SC 2375 (Supreme Court of India)
22. Manohar Vs. State of Maharashtra, Civil Appeal No.9095/2012 (Supreme Court of India)
23. CIC/MOEAF/A/2018/127093 titled Sayida Begum Vs CPIO Ministry of External Affairs on dated 21.10.2019 (CIC)
24. CIC/MoEAF/A/2018/133436 titled Kailash Chand Gupta Vs CPIO Ministry of External Affairs on dated 21.10.2019 (CIC) The Commission was also in receipt of a written submission from the Respondent dated 08.06.2020 wherein it was inter alia stated that the information sought could not be provided u/s 8 (1)(j) of the RTI Act, 2005 as it had no relation with the public authority and disclosure of the information so would be unwarranted invasion in the privacy of an individual. In support of their contention, the Respondent referred to the decision of the Hon'ble High Court of Delhi in Allahabad Bank vs. Nitesh Kumar Tripathi [W.P. (C) No. 906/2012-judgement dated 09.07.2013. While referring to the decision of the Commission in Dharmendra Prasad Gairola vs THDC India Ltd, Tehri, Tehri Garhwal (U.K.) (CIC/THDCL/A/2017/157359 dated 12.12.2018), the Respondent stated that the Commission has observed that leave records of other employees cannot be declared unless the applicant shows the involvement of a larger public interest. The Commission observed that such information cannot be provided to the third party in terms of Supreme Court's judgments in Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam, (2018) 11 SCC 426, Girish Ramchandra Deshpande v. Central Information Commissioner, (2013) 1 SCC 212 and R.K. Jain v. Union of India, (2013) 14 SCC 794. It was further stated that the Commission had applied the same test and concluded that no intervention was required by it as the appellant failed to show the involvement of larger public interest in seeking leave records of other employees. [Love Gogia v. Central Public Information Officer, BSNL, Appeal No. Page 4 of 8 CIC/BSNLD/A/2018/613653, order dated 26-06-2018]. Further, the third party in the instant case, vide her note dated 18.07.2018 & 21.12.2018, had intimated the Ministry that she is engaged in a serious matrimonial dispute with her husband, Mr. Love Gogia and that she has filed petitions against Mr. Gogia for divorce and domestic violence in the Hon'ble Court, Faridabad. Also, through her note dated 01.02.2019, the third party had informed the Ministry that matter regarding matrimonial dispute between her and Mr. Gogia is sub-judice and any information pertaining to her may not be divulged to Mr. Gogia through RTI, who only intends to threaten and pressurize her to withdraw cases against him. In addition to the RTI Application in question, the Appellant, had been filing innumerous RTI Applications with the Ministry of External Affairs seeking information about his estranged wife, Ms. Tannu Dua, which neither had any relation to public authority nor public interest, rather, these are all arising out of bitter matrimonial dispute going on between the two. Keeping in view the facts above, the CPIO wishes to submit that the RTI Act, 2005 aims to promote transparency and accountability in the working of the public authority; however, in the instant case, RTI Applications filed by the appellant do not have any relation to public authority or interest, rather these are purely motivated by personal vengeance, which indeed reflects sheer misuse of RTI Act. Besides, examination of such RTI Applications & complaints filed by Mr. Gogia, preparation of replies to RTI queries divert the limited resources available to the Ministry disproportionately from doing normal public activity towards a matrimonial dispute.
Having heard both the parties and on perusal of the available records, the Commission observed that as per the provisions of the RTI Act., 2005 only such information that was held and available with the Public Authority can be disclosed. During the hearing, the Respondent conveyed that information relating to the declaration made by the employee pertaining to the dowry expenditures was not held in a compiled form by them. 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."Page 5 of 8
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:
"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."
Moreover, the Commission observed that he Hon'ble Supreme Court of India in the matter of Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam, Civil Appeal No. 22 of 2009 dated 31.08.2017 had held as under:
"5) The information was sought on 15 parameters with regard to various aspects of transfers of clerical staff and staff of the Bank with regard to individual employees. This information was in relation to the personal details of individual employee such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders etc. etc
11) Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order and dismiss the application submitted by the 1st respondent under Section 6 of the Act.
12) In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794, 5 it may not be necessary to re-examine any legal issue urged in this appeal.Page 6 of 8
14) In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by respondent No.1 of individual employees working in the Bank was personal in nature;
secondly, it was exempted from being disclosed under Section 8(j) of the Act and lastly, neither respondent No.1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee and nor any finding was recorded by the Central Information Commission and the High Court as to the involvement of any larger public interest in supplying such information to respondent No.1."
A reference can also be made to the judgment of the Hon'ble Supreme Court of India in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 wherein it was held as under:
"13......The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right."
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 as under:
"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."Page 7 of 8
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above, the Commission instructs the Respondent to disclose the property returns submitted by the employee as held by them, whose information was sought in the RTI application for the period mentioned therein to the Appellant within a period of 30 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email, as agreed.
The Appeal stands disposed accordingly.
(The Order will be posted on the website of the Commission).
Bimal Julka (िबमल जु का)
Chief Information Commissioner (मु य सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26186535/ [email protected]
दनांक / Date: 10.06.2020
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