Central Information Commission
S C Chauhan vs Central Vigilance Commission on 21 May, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No: CIC/CVCOM/A/2017/175169/SD
S C Chauhan ....अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Central Vigilance Commission,
Satarkta Bhawan, G.P.O. Complex,
Block A, INA, New Delhi- 110023. ... ितवादीगण /Respondent
RTI application filed on : 18/07/2017
CPIO replied on : 27/07/2017
First appeal filed on : 12/09/2017
First Appellate Authority order : 16/10/2017
Second Appeal dated : 31/10/2017
Date of Hearing : 07/05/2019
Date of Decision : 20/05/2019
Information sought:
The Appellant sought copies of all note sheets and letter between various departments of CVC reference OM No.014/W&H/005-312793 dt.25.04.2016.
Grounds for the Second Appeal:
The CPIO has not provided the desired information.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present in person.
Respondent: S.C. Sinha, Director & CPIO and Raj Kumar, Under Secretary, Central Vigilance Commission, Satarkta Bhawan, INA, New Delhi present in person.1
CPIO submitted that the since the case file referred in the RTI Application is based on CBI's investigation, comments of CBI was sought and eventually information was denied to the Appellant as CBI sought exemption under Section 24 of RTI Act.
Appellant stated that the denial of information by the CPIO citing the exempt status of CBI under Section 24 of RTI Act is not appropriate, and even if it were to be accepted, fact remains that his case pertains to allegations of corruption. He further explained that he was posted as Executive Engineer, PWD Division of Govt. of NCT of Delhi and was looking after the work of "Construction of Underpass, Flyover, Surface Level Roads" etc. at Gazipur Crossing on NH-24 Bypass for the Commonwealth Games, 2010. That, there were two agreements of the work; one was with respect to a Rs. 200 Crore construction project and the other was for appointment of consultant for structural design of work for Rs. 1.46 Crore. That, after completion of these projects, they came under the scanner of CBI and a letter was received from CBI seeking all related records for a discreet investigation. That, eventually no observation was made with respect to the Rs. 200 Crore construction project, however, for the second agreement i.e appointment of consultant, a Preliminary Enquiry (P.E) was registered by CBI on 15.02.2012 in which certain procedural lapses was found on his part. That, the final findings/report of the P.E was submitted to CPWD for taking necessary action against him for the procedural lapses and accordingly, disciplinary proceedings under Rule 16 of CCS (CCA) Rules, 1965 was conducted by JS & CVO, CPWD and it was concluded with the observation that- "After elaborate analysis, the CPWD have concluded that both these articles of charge on the CO relates to procedural lapse without any motive and not leading to any loss to the Government". That, inspite of the said conclusion, a minor penalty of lowering to one stage in time scale of pay for one year without cumulative effect has been imposed on him vide letter dated 30.05.2017. In the grounds of Second Appeal, Appellant has also referred to the judgments of Hon'ble Delhi High Court in the matter of CPIO, Intelligence Bureau vs. Sanjiv Chaturvedi as well as in CPIO, CBI vs. C J Karira to argue that both these cases, where disclosure of information on allegations of corruption was upheld by the Court bear semblance to his case, wherein he was investigated by the CBI on allegations of corruption charges.
Appellant further brought on record that another case filed by him vide File No. CIC/CBRUI/A/2017/173035/SD based on the same subject matter is listed for hearing on 13.05.2019 against CBI before this bench, and prayed that if the Commission deems fit, the arguments of CBI may be considered on the said date before taking a decision in this case.
2File No: CIC/CVCOM/A/2017/175169/SD Commission acceded to the prayer of the Appellant and reserved the decision until hearing in File No. CIC/CBRUI/A/2017/173035/SD.
Decision Commission has heard the arguments of CBI in File No. CIC/CBRUI/A/2017/173035/SD on 13.05.2019, represented by K. Babu, SP and H.M. Singh, Sr. Public Prosecutor, O/o Head of Branch, Dy. Inspector General of Police, Central Bureau of Investigation, AC - III, Lodhi Road, New Delhi. The said hearing proceedings and decision in the matter is reproduced hereunder for clarity sans the submission of the Appellant for the sake of brevity:
"Rep. of Respondent No.2 submitted that since the outcome of the PE did not prove the corruption charges as evinced from the self contained note of the disciplinary proceedings referred by the Appellant, the instant case does not attract the proviso to Section 24(1) of RTI Act. He further highlighted the fact that CBI did not register a case but only a PE was held which further substantiates their stand that information sought does not pertain to allegations of corruption, rather it concerns the procedural lapses/irregularities found on the Appellant's part. It was furthermore urged that "corruption" is a wide term but it certainly does not include in its ambit procedural lapses or irregularities emanating from departmental lapses. It was also argued that even if the veil of Section 24 is lifted, the CBI report and correspondences will contain names of officials who dealt with the case, and disclosure of the same will be prejudicial to their life and physical safety as provided for under Section 8(1)(g) of RTI Act.
Rep. of Respondent No.2 lastly sought for another opportunity of hearing to plead their case with additional arguments.
Commission allowed the Respondent to tender their additional arguments via written submission to be sent though email by 16.05.2019.
Decision Commission received written submission of Respondent No.2 via email on 15.05.2019 wherein it has been reiterated that CBI only registered a PE against the irregularities in awarding of contract and appointment of consultants in connection with construction of 3-Level Grade Separator at crossing on NH-24 at Ghazipur, Delhi. That, said PE was however closed with a 3 recommendation to CPWD to take action as may be deemed for the irregularities. That, as admitted by the Appellant, a minor penalty was imposed on him after the disciplinary proceedings and in this context, it is clear that Appellant wishes to challenge the penalty imposed on him before CAT, which is of no concern to CBI as the same is between the Appellant and his employer. Further, as regards the question of whether exemptions of Section 8 of RTI Act will be applicable to information pertaining to allegations of corruption and human rights violation in the context of Section 8(1)(g) claimed during hearing, reliance has been placed on the judgment of Hon'ble Delhi High Court in the matter of Ehtesham Qutubuddin Siddique vs. CPIO, Intelligence Bureau decided on 16.01.2019. Respondent No.2 has thus urged that Section 8(1)(g) and (j) of RTI Act is applicable in the matter in view of the express embargo provided in Section 124 of Indian Evidence Act on disclosure of official communications by a public officer and has sought harmonious construction of the non-obstante clause contained in Section 18(4) of RTI Act with Section 124 of Indian Evidence Act. Respondent No.2 has argued that there is no larger public interest in the disclosure of the information but that it is purely concerned with Appellant's personal interest with respect to the penalty imposed on him.
Based on the submission of both parties, the moot questions that arise for adjudication are whether the information sought in the RTI Application concerns allegations of corruption or not; and if so, whether the exemption of Section 8(1)(g) of RTI Act claimed by Respondent No.2 during hearing will be applicable or not.
As regards the question of applicability of the proviso to Section 24(1) of RTI Act, Commission observes that the Appellant has adequately established the allegation of corruption subsisting in the matter. Respondent No.2's contention that a preliminary enquiry was held and only departmental lapses on the part of the Appellant was found, does not negate the fact that there were allegations of corruption which were investigated into. Besides, the fact that Appellant was eventually charged with a penalty resulting from disciplinary action, further evinces the allegation of corruption. Moreover, it is only reasonable to accept the allegations of corruption in the matter given the fact that it pertained to malfeasance committed in projects worth crores of rupees of the public exchequer. Further, the contention of Respondent No.2 that the information is sought to advance personal interest of the Appellant and does not concern any larger public interest is immaterial to the facts of the case. The aspect of larger public interest or the conclusiveness of the preliminary enquiry does not have any bearing on the applicability of the proviso to Section 24(1) of RTI Act as no such contingencies are inserted in the said provision. Similarly, Respondent No.2's argument that Appellant has 4 File No: CIC/CVCOM/A/2017/175169/SD sought the information to challenge the penalty imposed on him before CAT is also irrelevant and unwarranted as Section 6(2) of RTI Act clearly stipulates as under:
'6. Request for obtaining information.--
(2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.' Thus, Commission holds beyond any reasonable doubt that the information sought in the RTI Application pertains to allegations of corruption.
At this juncture, Commission finds this pressing need to highlight the paradox evident in claiming the exemption of Section 24(1) of RTI Act by the anti- corruption branch of CBI. In other words, given the fact that the cases referred to/investigated/enquired by the anti-corruption branch of CBI invariably pertain to allegations of corruption only; CBI and the Commission cannot be oblivious to the imperativeness of applying a judicious rationale while assessing the applicability of the proviso to Section 24(1) of RTI Act is such cases pertaining to the anti-corruption branch.
Now, the second question is whether Section 8(1)(g) of RTI Act is applicable for exempting the information or not. In this regard, Commission summarily rejects the contention of Respondent No.2 vis-à-vis the doctrine of harmonious construction applied between Section 124 of Evidence Act and Section 18(2) of RTI Act. Commission is at a loss to comprehend the relevance of citing Section 18(2) of RTI Act in the instant Appeal which has been filed under Section 19 of the RTI Act. It may be noted that the Hon'ble Supreme Court in the matter of Chief Information Commr.& Anr vs State of Manipur & Anr.[Civil Appeal Nos.10787-10788 of 2011] dated 12.12.2011 has categorically held as under:
'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.' Even by inference, if Commission is to consider the reliance placed on Section 124 of Evidence Act independent of its harmonious construction sought 5 with Section 18(2) of RTI Act, Respondent No.2 shall note the overriding effect of RTI Act envisaged under Section 22. It provides as under:
'22. Act to have overriding effect.--The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.' The aforesaid discussion leaves us with the only argument tendered by the Rep. of Respondent No.2 during hearing for invoking Section 8(1)(g) of RTI Act, which is that disclosure of the CBI report and correspondences will be prejudicial to the life and physical safety of the officers whose names figure therein.
Commission is of the considered opinion that the aforesaid argument is far stretched and rather labored given the fact that neither the material on record nor the disposition of the Appellant during hearing suggest any perceivable threat that he can pose to the officers who dealt with the CBI investigation and/or disciplinary action. In this regard, Commission finds that an observation of Hon'ble Delhi High Court in the matter of Union Of India vs. R.S.Khan [W.P.(C) 9355/2009 & CM No. 7144/2009] dated 07.10.2010 lends a perspective to the case at hand, as the Court observed:
'15. It may be further added that the Respondent has already retired on 31st October 2009. Further, even the censure awarded to the Petitioner has been quashed by this Court by an order dated 9th August 2010 in Writ Petition (Civil) No. 12462 of 2009. The Respondent has also placed on record a copy of the order passed by the CGDA treating the suspension period as duty period, and directing the release of full pay and allowances to the Respondent for the said period.
16. In light of the above developments, this Court finds no merits in any of the apprehensions expressed by the CPIO in the order rejecting the Respondent‟s application with reference to either Section 8(1)(g) of the RTI Act 2005.The disclosure of information sought by the Petitioner can hardly endanger the life or physical safety of any person. There must be some basis to invoke these provisions. It cannot be a mere apprehension.
17. As regards Section 8(1)(j), there is no question that notings made in the files by government servants in discharge of their official functions is definitely a public activity and concerns the larger public interest. In the present 6 File No: CIC/CVCOM/A/2017/175169/SD case, Section 8(1)(j) was wrongly invoked by the CPIO and by the Appellate Authority to deny information to the Respondent.' Although, the basis for rejection of Section 8(1)(g) of RTI Act in the aforementioned judgment is distinguishable by facts of the instant case as Respondent No.2 would argue that Appellant seeks this information to challenge the penalty order in CAT but the essence of the observation offers a piquant similarity to the Appellant's case. In other words, Commission is far from being convinced of the proposition that Appellant can cause any threat of life and physical safety to the officers whose name figure in the relevant records. Moreover, as held by the Court in Union of India vs. R.S Khan (supra), there ought to be 'some basis for invoking Section 8(1)(g) of RTI Act, it cannot be a mere apprehension'.
In view of the aforesaid discussion, Commission rejects the exclusion claimed by Respondent No.2 under Section 24 of RTI Act as well as the subsequent claim of Section 8(1)(g) of RTI Act for the denial of information.
Respondent No.2 is hereby directed to provide available and relevant information sought at Para II of the RTI Application to the Appellant free of cost within 15 days from the date of receipt of this order and a compliance report to this effect be duly sent to the Commission."
Since, from the aforesaid decision it is evident that Commission has held that the case of the Appellant certainly pertains to allegation of corruption; the proviso to Section 24(1) of RTI Act is applicable in the instant case as well where CPIO has denied the information citing the exempt status of CBI.
In view of the foregoing, Commission directs the CPIO to provide available and relevant information sought in the RTI Application to the Appellant free of cost within 15 days from the date of receipt of this order. A compliance report to this effect be duly sent to the Commission by the CPIO.
The appeal is disposed of accordingly.
Divya Prakash Sinha ( द काश िस हा )
Information Commissioner ( सूचना आयु )
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Authenticated true copy
(अ भ मा णत स या पत त)
Haro Prasad Sen
Dy. Registrar
011-26106140 / [email protected]
हरो साद सेन, उप-पंजीयक
दनांक / Date
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