Central Information Commission
V K Khanna vs Ministry Of Personnel, Public ... on 27 December, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के यसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/MOFIN/C/2020/672550/MPERS
V K Khanna ....िशकायतकता /Complainant
VERSUS
बनाम
CPIO,
Department of Personnel &
Training, RTI Cell, ACC, North
Block, New Delhi-110001. ... ितवादीगण /Respondent
Date of Hearing : 08/12/2022
Date of Decision : 08/12/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from complaint:
RTI application filed on : 21/03/2020
CPIO replied on : Not on record
First appeal filed on : Not on record
First Appellate Authority's order : Not on record
2nd Appeal/Complaint dated : NIL
Information sought:
The Complainant filed an RTI application dated 21.03.2020 seeking the following information:1
"......a copy of the Gazette Notification F No. 4/5/2016-BO.I dated 18/02/2020, marked as Annexure 'A'. With reference to Annexure 'A', kindly provide the following information:
1) Inspection of the Complete File of Appointment Committee of Cabinet(ACC) in which the extension of Dr Fareed Ahmad, Executive Director of Punjab & Sind Bank was dealt with.
2) Whether ACC was aware that Dr Fareed Ahmad is guilty of Sexual Harassment, as defined in The Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act, 2013.
3) Whether the ACC was informed that a police complaint is pending against Dr Fareed Ahmad for committing acts of sexual harassment at workplace.
4) Whether Dr Fareed Ahmad has sought any permission from Ministry of Finance/ Govt of India to file any petition before any High Court/ Supreme Court since his taking over the charge as Executive Director of Punjab & Sind Bank to date of providing information? If yes, kindly provide the relevant records.
5) The Reward Scheme, if any, for bank officials guilty of Sexual Harassment of Women at Workplace."
Having not received any response from the CPIO, the complainant filed a complaint to the Commission stating inter alia as under:
"3) The RTI request is based on a Gazette Notification dated 18/02/2020, available in public domain. The said notification was also enclosed for ready reference.
4) It is unambiguously clear that the Appointment Committee of Cabinet had approved the extension of Dr. Fareed Ahmad and allowed him to continue as the Executive Director of Punjab & Sind Bank(PSB), till his superannuation i.e . 31/07/2020.
5) In the interest of transparency, the citizens are rightfully entitled to know every minute details, related to appointments in public offices, specially the public sector banks, being custodian of hard earned public funds and on whom the public reposes complete faith & trust.
6) Dr Fareed Ahmad has been held guilty of causing sexual harassment to a female bank executive by the Local Complaint Committee(LCC), an authority established & empowered under the provisions of POSH Act,2013. A criminal complaint is pending against him in Vijay Nagar Police Station, Indore. The same has been published in NAI DUNIYA dated 28/08/2019. A copy of the News Cutting, 2 freely available in public domain, is enclosed for the kind perusal of the Hon'ble Commission. The contents of NAI DUNIYA are undisputed.
7) It is well settled that information can only be refused if the same is exempted under the provisions of the RTI Act. In the present case, no exemption has been claimed by the CPIO of Cabinet Secretariat or the transferee CPIO of DOPT, yet the information is refused unlawfully.
8) The approach of the CPIO is evasive, misleading & opposed to the laudable object of the Act. The CPIO cannot be permitted to transfer the whole Application with a malafide intention to prevent exposure of corruption in public appointments. On the contrary, the information should have been proactively disclosed, within the prescribed timeframe.
xxx
10) The legislature never intended to allow the CPIOs to toss the information seekers from one table to another or one PA to another PA, with a sole motive to delay, deny & obstruct the free flow of information..."
Relevant Facts emerging during Hearing:
The following were present:-
Complainant: Present through audio conference.
Respondent: Subir Kumar, US & Rep. of CPIO present through intra-video conference.
The Complainant stated that the RTI Application was merely transferred between Cabinet Secretariat, DoPT & Department of Financial Services without providing any material information till date. He further reiterated the grounds of the Complaint as mentioned above and stated that his only grouse in the instant matter is that the concerned CPIOs have failed to provide him with an answer in Yes or No in terms whether the sexual harassment complaint against Dr Fareed Ahmad was considered by ACC while dealing with his extension of service.
The CPIO submitted that the RTI Application under reference was dealt with by this bench in File No. CIC/DOP&T/A/2020/683718 decided on 16.05.2022 wherein their below mentioned reply of 05.06.2020 has been already placed on record and considered:
"Point No. 1:- In so far as EO ACC Section, DOPT is concerned, the noting of files submitted for approval of the Appointments Committee of the Cabinet form part of "Cabinet papers including of deliberations of the Council of Ministers, Secretaries and other officers", which are exempted from 3 disclosure under Section 8(1)(i) of the RTI Act. In this regard, it is stated that in the LPA No. 347/2010 i.e. Uol v/s P.D. Khandelwal filed in the High Court of Delhi, the Hon'ble High Court, vide order dated 12.07.2010, has stayed the order passed by the Single Bench in WP No. 8396/2009 dated 30.11.2009 in which the High Court had upheld the CIC decision that ACC file notings could also be disclosed. In other words, the decision of the CIC in Shri P.D. Khandelwal's case which was upheld by the single Judge of the Delhi High Court has been stayed by the Division Bench. The stay is still in force. Moreover, the High Court has also stayed the operation of the orders of the CIC in case of Shri H.C. Sharatchandra, Shri Rakesh Mehrotra, Shri P.K. Jain and Shri R.K. Tyagi in LPA Nos. 435/201,4, 568/2014 & 569/2014 & 570/2014 respectively. Further, the CIC has also held in several cases while disposing off the appeals against non-disclosure of ACC Notings that as the matter relates to disclosure of ACC Note and is sub-judice in the High Court of Delhi, it would be judicious to await the final outcome of the pending matter in the High Court of Delhi."
Point Nos. 2, 3, 4 & 5:- In so far as EO(ACC) section is concerned , the information sought by the applicant is not available."
Decision The Commission based on a perusal of the facts on record observes that the facts of the instant case and the relief sought for by the Complainant has been already threadbare analyzed and decided by this bench in File No. CIC/DOP&T/A/2020/683718 on 16.05.2022. Taking into consideration the fact that even in the instant case, the Complainant was insisting on relief to be provided to him in terms of a "Yes" or "No" reply leaves no scope of intervention in the matter as the merits of the information sought for as well as the scope of relief stands already determined in the earlier decision as under:
"Having heard the Appellant at length and considering the facts on record, the Commission at the outset observes that the information sought for in the RTI Application is squarely exempt under Section 8(1)(j) of the RTI Act. In this regard, the Commission relies on a judgment of the Hon'ble Supreme Court in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal 4 information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; 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. The following was thus held:
"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..." Emphasis Supplied.
Now, even if by farthest stretch of imagination, the Commission accorded a sense of larger public interest in the matter considering the gravity of the allegations levelled by the Appellant, the fact remains that vide the stay order dated 12.07.2010 of the Hon'ble Delhi High Court in LPA No. 347/2010 the issue of amenability of the deliberations of the ACC to the provisions of the RTI Act is sub judice. However at the same time, the claim of Section 8(1)(i) of the RTI Act is inappropriate when the decision of the averred extension was complete.
The Commission has adequately adjudicated on the subject of disclosure of ACC records in the matter of Nutan Thakur vs. DoPT in a number of Appeal(s) heard on 19.03.2019 and 26.03.2019, specific reference may be had of File No: CIC/DOP&T/A/2017/160659/SD, wherein the following was held:
'As regards the stay of Hon'ble Delhi High Court vide LPA No. 347/2010 is concerned, Commission notes that the applicability of Section 8(1)(i) of RTI Act is not what is pending adjudication but the moot question is based on a decision of First Appellate Authority as extracted in para 53 of the judgment in W.P (C) No. 8396/2009 which states as under:5
'.......This rule-making power (for conduct of the Government business) of the President of India is his supreme power, in his capacity as the supreme executive of India. This power is unencumbered even by the Acts of Parliament, as this rule-making power flows from the direct constitutional mandate and they are not product of any legislative authorization. In view of the fact that the ―separation of powers‖ is one of the fundamental feature of the our Constitution, these rules, promulgated by the President of India, for regulation of conduct of Government's business (Transaction of business and allocation of business) cannot be fettered by any act or by any Judicial decision of any Court, Commission, Tribunal, etc. Since ACC is a product of the rules framed under Article 77(3) of the Constitution of India, its business (deliberations including the decision whether they are to be made public) are not the subject-matter of the decisions of any other authority other than the President of India himself.
Therefore, unless these rules, framed under Article 77(3) themselves provide for disclosure of information pertaining to the working of the cabinet and its committees, no disclosure can be made pertaining to them, under the RTI Act. Therefore, the RTI Act has rightly provided for non-disclosure of the informaOon pertaining to ―Cabinet Papers.' In other words, the issue pending adjudication in LPA No. 347/2010 is whether records of ACC being Cabinet papers are yet distinct from the records of deliberations of Council of Ministers or not.
It is pertinent to note that Section 8(1)(i) of RTI Act provides for exemption of cabinet papers including deliberations of Council of Ministers, where decision has not been taken, the matter is not complete, or over. In the instant case, information sought pertains to appointments already made, in other words, where process of appointment is in itself over. Adverting to the genesis of LPA No. 347/2010, it is not appropriate for the CPIO to cite Section 8(1)(i) of RTI Act but should only restrict to the factum of the stay order operative on the subject of disclosure of records of ACC.' In the instant case as well, the information sought for pertains to an extension order which was already issued, in other words, the decision of extension was not pending therefore it could not have attracted the exemption of 6 Section 8(1)(i) of RTI Act. The CPIO was required to only intimate the factum of stay of the Hon'ble Delhi High Court on the subject of disclosure of ACC records under the RTI Act.
Having due regard to these earlier orders of the Commission issued in the year 2019 and onwards of year 2020 emphasising on the import of Section 8(1)(i) of the RTI Act vis-à-vis the P.D Khandelwal case, the CPIOs of DoPT ought to avoid repeating the same erroneous interpretation of the averred stay order as well as that of Section 8(1)(i) of the Act even to this date.
As regards, the contentions of the Appellant with respect to points 2-5 of the RTI Application, the Commission is unable to appreciate the same considering the fact that the said queries do not conform to Section 2(f) of the RTI Act. The Appellant has sought to confirm certain speculative statements and has required for the interpretation and deduction of records by the CPIO which is not the mandate of the RTI Act. The Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act.
In this regard, his attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
'35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. 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.' (Emphasis Supplied) 7 Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
'7....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....' (Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
'..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information.' (Emphasis Supplied) 8 Upon a conjoint consideration of the foregoing discussion, no scope of relief is pertinent in the matter."
Further, the Complainant shall also appreciate that Section 18 of the RTI Act does not provide for disclosure of information. In this regard, the Commission places reliance on a judgment of the Hon'ble Supreme Court dated 12.12.2011 in the matter of Central Information Commissioner vs. State of Manipur wherein it was held as under:
"...28. The question which falls for decision in this case is the jurisdiction, if any, of the Information Commissioner under Section 18 in directing disclosure of information. In the impugned judgment of the Division Bench, the High Court held that the Chief Information Commissioner acted beyond his jurisdiction by passing the impugned decision dated 30th May, 2007 and 14th August, 2007. The Division Bench also held that under Section 18 of the Act the State Information Commissioner is not empowered to pass a direction to the State Information Officer for furnishing the information sought for by the complainant."
xxx "30. It has been contended before us by the Respondent that under Section 18 of the Act the Central Information Commission or the State Information Commission has no power to provide access to the information which has been requested for by any person but which has been denied to him. The only order which can be passed by the Central Information Commission or the State Information Commission, as the case may be, under Section 18 is an order of penalty provided under Section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide."
31. We uphold the said contention and do not find any error in the impugned judgment of the High court whereby it has been held that the Commissioner while entertaining a complaint under Section 18 of the said Act has no jurisdiction to pass an order providing for access to the information."
xxx 9 "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...."
With the above observations, the Complaint is disposed of.
Saroj Punhani(सरोज पुनहािन) Information Commissioner (सू सूचना आयु ) Authenticated true copy (अिभ मािणतस यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ,उप-पंजीयक दनांक / Date 10