Central Information Commission
Prabodh Saxena vs Central Vigilance Commission on 21 December, 2021
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CVCOM/A/2020/679219
PRABODH SAXENA ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Central Vigilance Commission,
RTI Cell, Satarkta Bhawan,
G.P.O Complex, Block-A, INA,
New Delhi-110023. .... ितवादीगण /Respondent
Date of Hearing : 13/10/2021
Date of Decision : 17/12/2021
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 16/01/2020
CPIO replied on : 10/02/2020
First appeal filed on : 16/03/2020
First Appellate Authority's order : 28/05/2020
2nd Appeal/Complaint dated : 23/07/2020
1
Information sought:
The Appellant filed an online RTI application dated 16.01.2020 seeking information as follows:
1. Copy of complete file noting /comments/advice made on issue of my prosecution sanction in the case of INX Media.
2. Copy of complete life correspondence/noting/advice made on issue of my prosecution sanction in the case of INX Media.
The CPIO denied information to the appellant on 10.02.2020 under Section 8(1)(h) of the RTI Act, 2005 while stating that "since the entire case has not reached to its logical conclusion, the case is to be considered as "under investigation" as upheld by Central Information Commission in the case of Shri Shankar Sharma & Other Vs. Income Tax Department in case no. CIC/AT/A/2007/00007/10/11 in which CIC stated that 'investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on. Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken.' In such cases, where the investigation is not complete, that is the cases have not taken to their logical conclusion, the disclosure of information/documents is exempted under Section 8(1)(h) of the RTI Act as upheld by the CIC in case no. CIC/AT/A/2008/01500 in the case of Shri N Saini Vs. LIC of India in which CIC stated that 'there is also public interest in keeping the proceedings of an enquiry against the public servant confidential as any premature disclosure of the contents of such enquiry can compromise its objectivity as well as integrity. In fact, confidentiality is a key element of the enquiry.'...." In addition to this, the CPIO also invoked Section 8(1)(j) of the RTI Act on the grounds that the information pertains to personal information and cannot be parted with in the absence of any larger public interest.
Being dissatisfied, the appellant filed a First Appeal dated 16.03.2020. FAA's order dated 28.05.2020 upheld the reply of CPIO and also observed that the records contain information related to other officers also who are involved in the case and therefore Section 8(1)(j) is also applicable.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-2
Appellant: Represented by Rajeev Kumar Mishra along with Yashna Ahuja in person.
Respondent: Mahendar Singh Yadav, Director & CPIO present through audio conference.
The Rep. of the Appellant stated that the denial of the information under Section 8(1)(h) of the RTI Act is erroneous as the Chargesheet has been already filed in the matter on 29.10.2019 and therefore now the matter cannot be deemed under investigation, at best, it can considered sub judice, yet sub judice is not a ground for denial of information under Section 8(1)(h) of the RTI Act. He further relied on the grounds of the Second Appeal wherein the following has been stated:
"(iii) That regarding Section 8(1)(h) of the RTI Act, 2005, under the matter of BS Mathur vs PIO in WP(C) 295 of 2011 it is held that the scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-
disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8(1)(h)RTI Act, which is the only provision invoked by the Respondent to deny the Appellant the information sought by him, it will have to be shown by the public authority that the information sought 'would impede the process of investigation.' The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8 (1)(h) RTI Act. The burden is on the public authority to show that in what manner the disclosure of such information would impede the investigation.
(iv) That it is further submitted that when the "investigation" has already been finalised and after the finalisation of " investigation", the matter is already in Court, considering the matter as "under investigation", is unfounded, illegal and pre-judiced. It is to be noted that the matter is not " under investigation" but "sub- judice". And it is categorically held by the CIC in its decision in Mr. Ashu vs CPIO/Sr. Pupdt of Post, Department of Posts in CIC/BS/A/2015/00001578/11769 dated 28.11.2016 has held as under: 'At the outset it is clarified that the RTI Act provides no exemption from disclosure requirement of sub-judice matter. The only exemption for subjudice matters is regarding what has been expressly forbidden disclosure by a court or a tribunal and what may constitute contempt of court.' In this regard, the Hon'ble Delhi High Court also overruled number of decisions passed by the departments.
3(v) That as per the Order passed by CIC on 22.03.2017 in Appeal No. CIC/MP/A/2014/001006-BJ and CIC/MP/A/2015/ 001322-BJ in Arun Kumar Agrawal vs CPIO, SEBI. In this case, the Appellant had sought information on 13 points regarding the entire file noting and investigation report. In this case, CIC has directed the PIO to provide information under RTI.
(vi) Similarly, in the matter of Adesh Kumar Vs UoI, W.P. ( C) No. 3543 of 2014, the Petitioner in addition to various other information asked the CPIO to provide the noting on file note sheet / copy of letter/ comments/ advice etc. where it is held that exemption cannot be claimed under Section 8(1) (h) without any reasons that how it will affect and finally directed to provide the information sought and petition allowed. Merely, citing that the information is exempted under Section 8(1)(h) of the Act would not absolve the public authority from discharging its onus as required to claim such exemption.
(vii) That it is wrongly relied and mentioned by the CPIO that information sought may cause unwarranted invasion of privacy of other public servants. In view of judgment passed Hon'ble Supreme Court of India and the Delhi High Court, the exemption cannot be claimed in plain manner and information be provided.
(viii) In the case of Kashinath Shetye vs Dinesh Vaghela, the Bombay High Court ruled that "nothing remains personal as far as the discharging of duty,"
when it comes to public servants. "A public servant continues to be a public servant for all 24 hours," the court held. "Any conduct/ misconduct of a public servant even in private, ceases to be private. When, therefore, a member of a public demands information as to how many leaves were availed by the public servant, such information though personal, has to be supplied."
(ix) In judgement of the Ld. Single Judge of the Hon'ble High Court of Delhi in R.K. Jain v. Union of India, W.P. 6756 of 2010 dated 08.12.2011 which was affirmed by the Hon'ble Supreme Court of India vide its aforementioned decision it was held as under: "10. Therefore, except in cases involving overriding public interest, the ACR record of an officer cannot be disclosed to any person other than the officer himself/herself." In view of this also Section 8(1)(j) of RTI Act is not applicable in present matter.
(x) That the notings made in the files by government servants in discharge of their official functions is definitely a public activity and concerns the larger 4 public interest. In the present case, Section 8(1)(j) of RTI Act, was wrongly invoked by the CPIO and by the Appellate Authority to deny information to the Appellant."
The CPIO submitted that upon submission of investigation report by CBI, the concerned administrative agency, which in this case is DoPT sought for the CVC advice for prosecution sanction against the Appellant and 5 other officers. The said advice was issued on 13.05.2019, subsequently, prosecution sanction was granted on 26.08.2019, intimation of which was received in CVC on 02.09.2019 and post that no update has been received as to whether a Chargesheet has been filed in the matter or not. He further submitted that as an advisory body CVC's role is limited to tendering the advice, the final outcome in the matter is informed to CVC by the concerned administrative agency in order to complete the records of the relevant file opened at the end of CVC. Since the Appellant sought for correspondences/file noting(s) etc. which included the investigation report of the CBI, CVC relied on the exemption of Section 8(1)(h) of the RTI Act in keeping with the various decisions of CIC as quoted in his reply of 10.02.2020 as the case had not reached its logical conclusion, parting with the investigation report, which in any case was a record of CBI which is an exempted organisation under Section 24 of the RTI Act, could have impeded the process leading upto the final outcome.
Decision:
The Commission upon a detailed scrutiny of the facts on record and after considering the submissions of the parties during the hearing observes that the CPIO has suitably discharged the onus of justifying the denial of the information under Section 8(1)(h) of the RTI Act as disclosure of the correspondences/file noting(s) which includes the investigation report of CBI during the pendency of the case with the Court will attract the element of pending trial as espoused under the said exemption clause.
In this regard, the Commission places reliance on a division bench decision vide File No. CIC/AT/A/2006/00039 dated 01.01.2006 wherein the following was held:
"8. In examining this case, the critical point is whether the plea of continuing investigation taken by the appellate authority and the CPIO is a valid plea, which would have the support of the exemption under Section 8(1) (h) of the RTI Act. It is to be considered whether an investigation can be said to be over just because the officer entrusted with such investigation has completed his task and submitted the report to the competent authority. This will also mean that an 5 investigation and a decision in that investigation are two separate stages and cannot be said to constitute a continuum.
9. While in criminal law, an investigation can be said to be completed with the filing of the charge sheet in an appropriate court by an investigating agency, in cases of vigilance related enquiries, misconduct and disciplinary matters, the investigation can be said to be over only when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against. In that sense, the word investigation used in Section 8(1)(h) of the Act should be construed rather broadly and should include all enquiries, verification of records, assessments and so on which may be ordered in specific cases. In all such matters, the enquiry or the investigation should be taken as completed only after the competent authority makes a prima-facie determination about presence or absence of guilt on receipt of the investigation/enquiry report, from the investigation/enquiry officer. (Emphasis Supplied)
10. There is another aspect to this matter. If for the sake of argument, it is agreed that the report of investigation in any matter can be disclosed immediately after the officer investigating the cases concludes his investigation and prepares the report which, let us assume, impeaches the conduct of a given officer. In case the competent disciplinary authority agrees with the findings of the investigating officer, disclosure of the report even before a final decision by the competent authority, would be inconsequential. There shall be problem, however, if the disciplinary/appointing authority chooses to disagree with the findings of the investigating officer. Early disclosure of the investigation report in such a case, besides being against the norms of equity, would have caused irretrievable injury to the officer/person's (who would have been the subject of investigation) standing and reputation. His demoralisation would be thorough.
13. There is one other factor that also needs some reflection. Disclosure of an investigation/enquiry report (as demanded in this case by the appellant) even before its acceptance/rejection by a given competent authority will expose that authority to competing pressures which may hamper cool reflection on the report and compromise objectivity of decision-making. (Emphasis Supplied)
14. In our considered view, therefore, in investigations in vigilance related cases by CVOs or by departmental officers, as well as in all cases of misconduct, misdemeanour, etc., there should be an assumption of continuing investigation 6 till, based on the findings of the report, a decision about the presence of a prima- facie case, is reached by a competent authority. This will, thus, bar any premature disclosure, including disclosure of the report prepared by the investigating officer, as in this case."
The aforesaid rationale has been reiterated by the Commission in a catena of decisions, most recently relied upon by a coordinate bench of the Commission vide File No: CIC/OFBKO/A/2018/150933 decided on 03.03.2020 and the same is squarely applicable to the merits of the instant case as the Appellant's primary argument is that upon filing of the Chargesheet, the exemption of Section 8(1)(h) is not applicable.
However, the exemption of Section 8(1)(j) of the RTI Act invoked by the CPIO appears to be rather extraneous in as much as during the operation of Section 8(1)(h) of the RTI Act, the applicability of Section 8(1)(j) of the Act is inconsequential. Moreover, for the sake of argument, even if Section 8(1)(j) of the Act were to be invoked, the same would be applicable to the extent that the disclosure will entail information related to the other 5 charged officers said to be involved in the case and not with respect to the Appellant.
Having observed as above, the Commission upholds the denial of the information under Section 8(1)(h) of the RTI Act.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 7