Central Information Commission
Mr.S K Sahni vs Ministry Of Defence on 15 January, 2013
CENTRAL INFORMATION COMMISSION
Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
File No.CIC/LS/A/2012/002157
File No.CIC/LS/A/2012/002158
File No.CIC/LS/A/2012/002159
Appellant : Shri S. K. Sahni
Respondent : Indian Army
Date of hearing : 18th, 28th & 31th December, 2012, and 7th & 8th January, 2013.
Date of decision : 15th January, 2013 This matter was earlier heard on 18.12.2012. The proceedings of the day are extracted below:-
"Heard today dated 18.12.2012. Appellant present. The public authority is represented by Col Binod Kumar and Ms Usha Sethi, Director.
2. The parties are heard. It is noticed that the issues raised by the appellant in the above cited appeals were discussed in detail in this Commission's order dated 30.08.2012 in File No.CIC/LS/A/2011/001544 and 05 others and an appropriate order passed. It is, however, the principal contention of the appellant that the ground situation has since changed in as much as the punishment inflicted on him has since been confirmed by COAS and, therefore, section 8(1)(h) of the RTI Act is not more applicable. He, therefore, requests that the information sought by him in the above cited matters be disclosed to him.
3. The matter is adjourned to 28.12.2012 at 10.30 hrs. The Army officers are directed to file a written representation before the Commission on the aforesaid date. They will also send a copy of the representation to the appellant two days before the date of hearing.
14. A copy of the representation filed by the appellant before the Commission is taken on record and a copy thereof is also handed over to the Army officers dasti."
2. This is in continuation of this Commission proceedings dated 18.12.2012. As scheduled, the matter is further heard on 28.12.2012. Appellant present. The Army is represented by Col. Binod Kumar; Shri R. S. Meena, Dy. Director and Shri Ratanmoy Dey, Dy. Director. The parties are heard and the records perused.
3. A short background of the matter, as narrated by the appellant, is as follows. The appellant was a Lt. General in the Army. He retired on 30.9.2006. He was working as Director General, Supply and Transport, at the Army Headquarters before his retirement. It is his say that on the basis of certain anonymous complaints, a Court of Inquiry was held in October, 2005, regarding alleged irregularities in the purchase of dal etc from M/s Gujarat Grain Growers Federation Limited (GRAINFED). On the conclusion of CoI, the appellant was ordered to be attached to HQ 2 Corps on 18.7.2006. Thereupon, the appellant moved the Delhi High Court against this order. The Delhi High Court in order dated 11.1.2007, held that the respondent Army authorities had not complied with the provisions of Rule 180 of the Army Rules, 1954, and, therefore, could not take any further proceedings against the appellant on the basis of Court of Inquiry held in furtherance to the order of the competent authority dated 26.9.2005. However, the Army Authorities were given the liberty to give notice to the appellant and continue with the proceedings under Army Rule 180, or, in the alternative, even to take recourse to the provisions of Rule 22 or exercise any other power available to them under the Act in so far as they did not rely on the proceedings of the aforesaid Court of Inquiry. Thereafter, the appellant, again, was attached to HQ 11 Corps in September, 2007. The appellant moved the Delhi High Court again. The High Court ordered the appellant to co-operate with the inquiry. The appellant further submits that the Army Authorities conducted the proceedings under Rule 22 but no new charges were established against him but they ordered recording of Summary of Evidence in regard to 06 charges which were the subject matter of the first Court of Inquiry. The appellant further submits that he moved the High Court but the High Court accepted the plea of the Army Authorities for permitting them to complete the ongoing proceedings and gave liberty to the appellant to come back to it again if he was aggrieved. When the matters so stood, he received an order from the Army Authorities in October, 2008, to proceed to Jalandhar and face General Court Marshal. The appellant submits that he moved the High Court again but the Army Authorities kept on seeking 2 adjournment on one ground or the other. Ultimately, the matter pending before the High Court was transferred to the newly constituted Armed Forces Tribunal in August, 2009.
4. The AFT in order dated 3.9.2009 held that taking recourse to Rule 22 was totally unwarranted and illegal and set aside the order dated 31.8.2007, attachment order dated 27.9.2007 and 26.10.2007. Even so, the AFT permitted the Army Authorities to assemble the Court of Inquiry and give an opportunity of hearing to the appellant under Rule 180 as per High Court order. The CoI proceedings so ordered were completed sometime in November, 2009, and the appellant was, again, attached for hearing of charge in May, 2010. After the recording of Summary of Evidence, GCM proceedings were started again against him on 6.8.2010. These proceedings were concluded in February, 2011. The GCM held him guilty for various acts of omission and commission and inflicted punishment of imprisonment of three years. Thereupon, he moved AFT, Chandigarh Bench, and was granted bail.
5. Importantly, the appellant submits that the punishment inflicted on him was confirmed by the Chief of Army Staff in January, 2012, and thereafter promulgated by GOC 11 Corps.
6. He also submits that he had filed RTI application dated 1.12.2010 seeking information regarding the aforesaid proceedings conducted against him at various levels during the period 2005 to 2010. As the CPIO had refused to disclose this information, he had moved this Commission in this connection. The Commission, vide order dated 30.8.2011, had held that the requested information could not be disclosed to him in view of the pendency of confirmation proceedings and that the matter fell in the mischief of section 8 (1)
(h) of the RTI Act and, his appeal was dismissed. According to him, the ground situation has since changed. The proceedings stand concluded and section 8 (1)
(h) is no more attracted.
7. The case wise position is as follows:-
File No. CIC/LS/A/2012/0002157
8. The appellant had filed RTI application dated 29.5.2012 with the CPIO of Army Hqrs seeking the following information:-
"1. Certified copies of all notings, letters, communications / correspondence, orders, office memorandums, internal notings, reports, replies, comments, objections, rejections, approvals, suggestions, recommendations, directions etc, 3 etc, between Headquarter Western Command and AGs Branch Army Headquarters / DV Directorate Army Headquarters / JAG Branch Army Headquarters and all above put up to the COAS including directions by the COAS and all notings, recommendations, comments and decisions on the anonymous complaints based on which the Court of Inquiry was ordered on 26 September 2005 amended to 10October 2005 alongwith reasons/ notings / correspondence for deleting two aspects from the convening order of 26 September 2005 / communication with Headquarters Western Command on the subject. Also give complete Chain, Series, Link Documents in this matter.
2. Certified copies of all kind of letters, communications / correspondence, orders, office memorandums, internal notes, reports, replies, comments, objections, rejections, approvals, suggestions, recommendations, directions etc, etc, between Army Headquarters (AGs branch, DV Directorate, JAG Branch, COAS Secretariat, VCOAs Secretariat) and Head quarters Western Command and Headquarters 11 Corps relating to the Cereal Scam and the two Court of inquiry viz ordered vide Convening Order No. 0337/DA/C of I / CFL Delhi / A4 of 26 Sept 2005 amended to 10 Oct 2005 and 0337/C of I/DV-2 of 22 Sept 2009 by Headquarters Western Command.
3. Certified copies of all notings, letters, communications, recommendations, approvals, directions, and decisions on all matters relating to the Cereal Scam exchanged between Army Headquarters and Ministry of Defence (to include Raksha Mantri and all officers dealing with the case).
4. Certified copies of the Opinion, Findings and Recommendations of the Court of Inquiry convened by Headquarters Western Command on the subject vide convening order of 26 September 2005 amended to 10 October 2005 and the second dated 22 Sept 2009 along with all notings, recommendations, decisions, directions, objections and observations of all who processed / gave directions / approval on it.
5. All above required for the period 01 August 2005 till date of providing the requisite information.
6. Please give details of financial irregularities, and injuries that took place to anyone / by any one and if it was procedural irregularities then whether these procedures were new or in practice for decades / years.
7. Please inform how much revenue loss the Govt has faced on account of it and also how much financial expenditure the Govt. has incurred in the 4 investigations carried out to include expenditure on Court suits so far since August 2005 till date.
8. I may apprise you that the COAS has confirmed the GCM proceedings on 13 Jan 2012 as intimated to me vide HQ 11 Corps letter No. 2016/Discp/SKS/DV-2 dated 10 May 2012 and the same have been promulgated by GOC 11 Corps on 16 May 2012 at 1100 hrs at Jalandhar."
9. The CPIO had transferred the application to the Western Command. The CPIO of the Western Command, however, did not give any response to the appellant. He had filed first appeal with the AA of the Army Headquarters who, vide order dated 24.8.2012, refused to disclose any information u/s 8 (1)
(h).
File No. CIC/LS/A/2012/002158
10. The appellant had filed RTI application dated 29.5.2012 with the CPIO of HQ Western Command seeking the following information:-
"1. Please provide certified copies of all notings, letters, communications / correspondence, orders, office memorandums, internal notings, reports, replies, comments, objections, rejections, approvals, suggestions, recommendations, directions etc, etc, between Headquarters Western Commandant AGs Branch Army Headquarters/ DV Directorate Army Headquarters/ JAG Branch Army headquarters and all above put up to the Army Cdr including directions by the Army Cdr and all notings, recommendations, comments and decisions on the anonymous complaints based on which the Court of Inquiry ordered vide Convening Order No.0337/DA/C of I/CFL Delhi/A4 of 26 Sept 2005 recommended to 10 Oct 2005 and 0337/C of I / DV-2 of 22 Sept 2009 convened by Headquarters Western Command along with reasons / notings / correspondence for deleting two aspects from the convening order of 26 September 2005 / communication with Headquarters 11 Corps on the subject. Also please give complete Chain, Series, Link documents in this matter.
2. Please provide certified copies of all kinds of letters, communications / correspondence, orders, office memorandums, internal notes, reports, replies, comments, objections, rejections, approvals, suggestions, recommendations, directions, etc, etc, between Headquarters Western Command and Army Headquarters (AGs Branch, DV Directorate, JAG Branch, COAs Secretariat, VCOAS Secretariat) and Head quarters 11 Corps on the Cereal Scam to include the two Courts of Inquiry and the two Summary of Evidence.5
3. Provide certified copies of all notings, letters, communications, recommendations, approvals, directions and decisions on all matters relating to the Cereal Scam exchanged between Headquarters Western Command and Army Headquarters.
4. Certified copies of the Opinion, Recommendations and Findings of the Court of Inquiry convened by Headquarters Western Command on the subject vide convening order of 26 September 2005 amended to 10 October 2005 and also of the Court of Inquiry reconvened on 22 September 2009 as per directions of Hon'ble AFT Delhi Bench in respect of Lt. Gen S K Sahni (Retd) alongwith all notings, recommendations, decisions, directions, objections and observations of all who processed / gave directions / approval on it. Also Opinion, Findings and Recommendations of both the Court of Inquiry and Summary of Evidence.
5. All above required for the period 01 August 2005 till date of providing the requisite information.
6. Please give details of financial irregularities, and injuries that took place to anyone / by one and if it was procedural irregularities then whether these procedures were new or in practice for decades / years.
7. Please inform how much revenue loss the Govt has faced on account of it and also how much financial expenditure the Govt has incurred in the investigations carried out to include expenditure on Court suits so far since August 2005 till date.
8. I may apprise you that the COAS has confirmed the GCM proceedings on 13 Jan 2012 at intimated to me vide HQ 11 Corps letter No. 2016/Discp/SKS/DV-2 dated 10 May 2012 and the same have been promulgated by GOC 11 Corps on 16 May 2012 at 1100 hrs at Jullandhar."
11. The CPIO, through letter dated 30.6.2012, had communicated to the appellant that the requested information could not be disclosed u/s 8 (1) (h) of the RTI Act. The appellant had filed first appeal with the AA of HQ Western Command but the AA did not pass any formal order. The appellant submits that all that he received was a one page note dated 19.6.2012 through the covering letter dated 30.6.2012 of HQ Western Command.
6File No. CIC/LS/A/2012/002159
12. The appellant had filed another RTI application dated 29.5.2012 with the CPIO of HQ 11 Corps seeking the following information:-
"1. Please provide certified copies of all notings, letters, communications / correspondence, orders, office memorandums, internal notings, reports, replies, comments, objections, rejections, approvals, suggestions, recommendations, directions etc, etc, between Headquarters 11 Corps and Headquarters Western Command and all above put up to the Corps Cdr including directions by the Corps Cdr on both the Summary of Evidence held against Lt Gen S K Sahni. Also please give complete Chain, Series, Link documents in this matter.
2. Please provide certified copies of all kind of letters, communications, / correspondence, orders, office memorandums, internal notes, reports, replies, comments, objections, rejections, approvals, suggestions, recommendations, directions, etc, etc, between Headquarters 11 Corps and Headquarters Western Command on the disciplinary action against Lt. Gen. S K Sahni.
3. Please provide certified copies of all notings, letters, communications, recommendations, approvals, directions, and decisions on all matters relating to the Cereal Scam exchanged between Headquarters 11 Corps and Army Headquarters and Headquarters Western Command.
4. Certified copies of the Opinion, Recommendations and Findings of the Court of Inquiry convened by Headquarters Western Command on the subject vide convening order of 26 September 2005 amended to 10 October 2005 and second of 22 Sept 2009 along with all notings, recommendations, decisions, directions objections and observations of who processed /gave directions /approval on it.
5. All above required for the period 01 August 2005 till date of providing the requisite information.
6. Please give details of financial irregularities, and injuries that took place to anyone / by anyone and if it was procedural irregularities then whether these procedures were new or in practice for decades / years.7
7. Please inform how much revenue loss the Govt has faced on account of it and also how much financial expenditure the Govt has incurred in the investigation carried out to include expenditure on Court suits so far since August 2005 till date.
8. I may apprise you that the COAS has confirmed the GCM proceedings on 13.1.2012 as intimated to me vide HQ 11 Corps letter No. 2016/Discp/SKS/DV-2 dated 10 May 2012 and the same have been promulgated by GOC 11 Corps on 16 May 2012 at 1100 hrs at Jullandhar."
13. The CPIO had responded to it vide letter dated 16.6.2012 refusing to disclose any information u/s 8 (1) (e) of the RTI Act. On appeal, the AA, vide order dated 29.5.2007, had upheld the decision of the CPIO u/s 8 (1) (h) and not under 8 (1) (e).
14. Aggrieved with the above decisions of the CPIOs and AAs, the appellant has filed the above mentioned 03 appeals before this Commission.
15. It may be recalled that on the last hearing held on 18.12.2012, the parties were directed to file their written representations. The AG's Branch has filed a written representation dated 24.12.2012 before this Commission. Paras 2 & 3 thereof are extracted below:-
"2. It may please be appreciated that the findings of the Courts of Inquiry into the 'Cereal Scam' had resulted in disciplinary action being directed against many officers. While the General Court Martial (GCM) proceedings in respect of Lt. Gen. (Retd) S K Sahani have been concluded to the extent of hearing and confirmation, promulgation of sentence is not complete during the subsistence of bail granted by AFT. As such the said GCM proceedings have not attained finality and are subjudice.
3. It is further added that action against other blameworthy officers who are facing similar charges is still in progress. Disclosure of any information pertaining to the case is barred under section 8 (1) (h) of RTI Act 2005 till the process of prosecution or related litigation gets concluded and the case attains finality in entirety."
16. The above named officers present before the Commission submit that as AFT has granted bail to the appellant, the execution of sentence cannot be carried out, and, therefore, the CGM proceedings cannot be said to have obtained finality and the matter falls u/s 8 (1) (h) of the RTI Act.
817. The matter is further heard on 31st December, 2012. Appellant present. The Army is represented by Col. Binod Kumar, Shri Rajnish Aluwalia, Director and Adv. Ankur Chibber. The parties are briefly heard. The matter is adjourned to 4th January, 2013 at 1600 hrs. Adv. Chhiber is directed to file a written representation, inter alia, on the following points:-
(a) Similarity or otherwise between the charges served to the appellant on the one hand and Col. Pramod Kumar and Col. V. K. Pant on the other hand;
(b) Promulgation or otherwise of the proceedings in question; and
(c) How disclosure of requested information would impede the conduct of proceedings pending against Col. Pramod Kumar and Col V. K. Pant.
19. Adv. Chibber is directed to serve a copy of his representation on the appellant on 3rd January, 2013 (F.N.).
20. This matter could not be heard on 04.01.2013 due to unavoidable circumstances. It was further heard on 7th & 8th of January, 2013. The appellant was present on both the dates. Respondent Army was represented by Col. Binod Kumar on 7th January. Rajnish Ahluwalia represented the Army on 8th January, 2013.
21. As noted above, it is the principal contention of the appellant that sentence of imprisonment of three years awarded to him by GCM has been confirmed by the Chief of Army Staff and, therefore, the proceedings stand concluded and nothing remains pending therein. In this view of the matter, section 8(1)(h) is not applicable in the present case. He has relied on this Commission's decision dated 15.6.2011 in Col. V.K. Shad -Vs- Indian Army(File No.CIC/LS/A/2011/000617). Paras 06 & 07 of the said order are extracted below :-
"6. On the other hand, the appellant submits that the matter in hand cannot be said to be under investigation as non-recordable warning has already been given to him and no proceedings are pending at present. He also contests the claim of Lt. Col. Uniyal that the officers concerned made notings in fiduciary capacity. According to him, the notings were made in a routine course and as per several decisions of this Commission, the file notings are disclosable to the information seeker.9
7. It is incontrovertible that no proceedings are pending against the appellant at present. Hence, the matter is not covered under section 8(1)(h) of the RTI Act. It would also not be correct to say that the officers made notings in the files in fiduciary capacity. The notings were made in ordinary course and constitute official records of the units/formations concerned. In this view of the matter, the file notings are disclosable to the appellant. Even so, in view of the special attributes of the Armed Forces and their Command structure, it would not be expedient to disclose the identity and designations of the officers who made notings in the files as it may adversely affect the espirit de corps of the officer cadre. Considering the totality of the circumstances, I hereby order that the entire information requested for by the appellant, as extracted above, may be supplied to him subject to the proviso that the names and designations of the officers who made notings in the files would be obliterated in terms of section 10(1) of the RTI Act."
22. The appellant has also relied on other three decisions of this Commission viz. P.P. Singh case, Brig. S. Sabharwal case and Om Prakash Soni case which follow the ratio of this Commission's decision in Col. V.K. Shad case.
23. The appellant has also relied on judgment dated 9.11.2012 of the Delhi High Court in WP© 449/2012 and CM 1059/2012(UOI -Vs- Col. V.K. Shad); WP(C) 1138/2012 and CM 2462/2012 (UOI -Vs- Col. P.P. Singh) and WP(C) 1144/2012 and CM 2486/2012 (UOI -Vs- Brig. S. Sabharwal) wherein the High Court has upheld the decisions of this Commission in the above cited matters. The focus of the aforesaid decision of the High Court is on the issue of as to whether the legal opinion rendered by the JAG Branch of the Army can be said to have been rendered in fiduciary capacity and whether it is barred from disclosure under section 8(1)(e) of the RTI Act. The High Court has noticed the decisions of the Hon'ble Supreme Court of India in CBSE -Vs- Aditya Bandhopadhyay case wherein it was held that no fiduciary relationship exists between the examining body and the examiner with reference to the evaluated answer scripts. In ICAI -Vs- Shaunak S. Sathya, the Supreme Court held that "Instructions and solutions to questions communicated by the examining body to the examiners/Head Examiners and moderators are information available to such persons in their fiducial relationship and, therefore, exempted from disclosure under section 8(1)(d) of the RTI Act." The High Court has also noticed the findings of the Hon'ble Supreme Court in Secretary General, Supreme Court of India -Vs- Subhash Chand Aggarwal regarding the true meaning of fiducial relationship. Keeping in view the ratios of the above 10 mentioned judgments rendered by the Supreme Court, the High Court came to the conclusion that legal opinion rendered by JAG Branch does not satisfy the test of fiducial relationship and is not covered under section 8(1)(e) of the RTI Act. Paras 20.2, 20.3 & 20.4 of the judgment are extracted below :-
"20.2 The above would show that there are two kinds of relationships. One, where a fiducial relationship exists, which is applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, executors and beneficiaries of a testamentary succession; while the other springs from a confidential relationship which is pivoted on confidence. In other words, confidence is reposed and exercised. Thus, the term fiduciary applies, it appears, to a person who enjoys peculiar confidence qua other persons. The relationship mandates fair dealing and good faith, not necessarily borne out of a legal obligation. It also permeates to transactions, which are informal in nature. [See words and phrases Permanent Edn. (Vol. 16-A, p. 41) and para 38.3 of the CBSE vs Aditya Bandopadhyay]. As indicated above, the Supreme Court in the very same judgment in paragraph 39 has summed up as to what the term fiduciary would mean.
20.3 In the instant case, what is sought to be argued in sum and substance is that it is a fiducial relation of the latter kind, where the persons generating the note or opinion expects the fiduciary, i.e., the institution, which is the Army, to hold their trust and confidence and not disclose the information to the respondents herein, i.e., Messers V.K. Shad and Ors. If this argument were to be accepted, then the persons, who generate the notes in the file or the opinions, would have to be, in one sense, the beneficiaries of the said information. In an institutional set up, it can hardly be argued that notes on file qua a personnel or an employee of an institution, such as the Army, whether vis-a-vis his performance or his conduct, in any manner, can benefit the person, who generates the note or renders an opinion. As a matter of fact, the person who generates the note or renders an opinion is presumed to be a person who is objective and not conflicted by virtue of his interest in the matter, on which, he is called upon to deliberate. If that position holds, then it can neither be argued nor can it be conceived that notes on file or opinions rendered in an institutional setup by one officer qua the working or conduct of another officer brings forth a fiduciary relationship. It is also not a relationship of the 11 kind where both parties required the other to act in a fiduciary capacity by treating the other as a beneficiary. The examples of such situations are found say in a partnership firm where, each partner acts in fiduciary capacity qua the other partner(s).
20.4 If at all, a fiduciary relationship springs up in such like situation, it would be when a third party seeks information qua the performance or conduct of an employee. The institution, in such a case, which holds the information, would then have to determine as to whether such information ought to be revealed keeping in mind the competing public interest. If public interest so demands, information, even in such a situation, would have to be disclosed, though after taking into account the rights of the individual concerned to whom the information pertains. A denial of access to such information to the information seekers, i.e., the respondents herein, (Messers V.K. Shad & Co.) especially in the circumstances that the said information is used admittedly in coming to the conclusion that the delinquent officers were guilty, and in determining the punishment to be accorded to them, would involve a serious breach of principles of natural justice, as non- communication would entail civil consequences and would render such a decision vulnerable to challenge under Article 14 of the Constitution of India provided information is sought and was not given."
24. It is, thus, the appellant's case that the requested information is not barred from disclosure either under section 8(1)(e) or section 8(1)(h) of the RTI Act.
25. At this juncture, it may be pertinent to reiterate that the appellant had filed three RTI applications dated 29.5.2012 - one with the CPIO of the Army Headquarters; another with the CPIO of HQ Western Command and third one with CPIO of HQ 11 Corps in which he had sought almost identical information regarding the proceedings conducted at these headquarters. On a suggestion from the Commission, he has consolidated his requirement for information as follows :-
(A) Court of Inquiry • Opinion, findings and recommendations;
• JAG opinion in COI;
• Notings made by the officers of the Western Command;
• Opinion of GOC-in-C, Western Command;
12
• Notings made in the Army Headquarters; &
• Directions issued by Chief of Army Staff.
(B) Re-convening CoI
• Opinion/findings/recommendations;
• Opinion of JAG, Western Command;
• Opinion of GOC-in-C, Western Command;
• Notings of the Army Headquarters; &
• Directions issued by the Chief of Army Staff.
(C) Summary of Evidence.
• Opinion, findings and recommendations;
• Opinion of JAG, Western Command;
• Opinion of Corps Commander, 11 Corps;
• Opinion of GOC-in-C, Western Command;
• File notings made in Army Headquarters; &
• Directions of the Chief of Army Staff.
(D) Appellant submits that there were two proceedings of Summary of Evidence. He seeks information as in (C) above in regard to both Summary of Evidence proceedings.
26. On the other hand, the following arguments have been advanced on behalf of the Respondent Army to deny the above mentioned information to the appellant :-
(i) The first and foremost submission is that even though COAS has confirmed the GCM proceedings against the appellant yet the proceedings cannot be said to have attained finality as the AFT have given bail to the appellant.
(ii) Secondly, the proceedings are in progress against Col. (Retd.) Pramod Kumar and the proceedings against Col.(Retd.) V.K. Pant are held up due to intervention of AFT, Lucknow. It has been contended that the proceedings against the above named officers are pending in the same matter and, therefore, disclosure of requested information would impede the pending proceedings.
(iii) The last contention of the respondent Army authorities is that opinion rendered by the JAG Branch of the Army cannot be disclosed to the appellant in 13 terms of section 8(1)(e) of the RTI Act as JAG has rendered opinion in fiduciary capacity and it is, therefore, not disclosable to the appellant.
27. The appellant in his written representation dated 28.12.2012 has tried to meet the above contentions of the Army authorities by arguing that he was DGST at the relevant time. His role, functions and responsibilities were totally different from that of the two Colonels named above. It is also his say that his Court of Inquiry, Summary of Evidence and GCM was independent of all others and there was no joint trial. His further contention is that he is not a defence witness or a prosecution witness in any of the CoI, SOE or GCM of other officers and that his case has to be treated on 'stand alone' basis. The relevant portion of his representation is extracted below :-
"(a) The role, functions, and responsibilities of the so called blame worthy officers was totally different to that of DGST. I was DGST. How could there be any compatibility of my role and functions vis-à-vis with that of a Col/Lt. Col. who was CO/21C of a unit and I was not in their reporting channel of ACR.
(b) The situation stated by the Army was existing earlier too, but their case was all along based on confirmation of the proceedings only which is nonexistent now.
(c) My C of I, S of E and GCM was independent of all others.
There was no joint trial.
(d) I have not been either a Defence Witness or a Prosecution Witness in any of the C of I, S of E or GCM of the other officer's. This alone should be adequate to show the bogus plea of the Army."
Decisions and reasons
28. In view of the above discussion, it would be pertinent to extract clauses
(e) & (h) of section 8(1) :-
"(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
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14(h) information which would impede the process of investigation or apprehension or prosecution of offenders; "
29. I will now take up the arguments advanced on behalf of the respondent Army one by one. The first question is whether the matter can be said to be under investigation or trial against the appellant herein. It is incontrovertible that the punishment inflicted on the appellant has been confirmed by a COAS who is the competent authority. The argument advanced by the Army authorities is that the proceedings cannot be said to have attained finality as AFT has given bail to the appellant. In my opinion, in view of the confirmation of GCM proceedings by COAS, the proceedings can be said to have attained finality. Grant of bail by AFT is of no consequence in as much as it is not a part of the departmental proceedings. It is a court process and stands on a different footing and cannot be construed as part of departmental proceedings. These proceedings are of a different class. Hence, the ratio of Col. V.K. Shad case fully applies in the present case. I, therefore, hold that the proceedings have been completed against the appellant in all respects and, therefore, section 8(1)(h) is not attracted.
(ii) The second question for consideration is whether disclosure of information as requested for hereinabove above would cause any impediment to the proceedings pending against Col.(Retd.) Pramod Kumar and Col.(Retd.) V.K. Pant. I have carefully perused the chargesheets served on appellant on the one hand and Col. Pramod Kumar and Col. Pant on the other hand. Suffice to say that the appellant was Director General, S&T at the relevant time. He was at the policy making level; whereas Col. Pramod Kumar and Col. Pant were at the field level. The nature of charges served on the appellant, on the one hand, and on the above named two Colonels, on the other hand, are totally different. Further, the submission of the appellant extracted above that his CoI, SOE and GCM was independent of all others has weight and cannot be ignored. Similarly, his contention that there was no joint trial involving him and the two Colonels also cannot be disregarded. In view of the above, I am of the opinion that disclosure of requested information to the appellant is not going to impede the pending proceedings against Col. Pramod Kumar and Col. Pant and I hold accordingly.
(iii) Now I come to the last submission made on behalf of the Army authorities and it is whether disclosure of requested information is covered under section 8(1)(e) of the RTI Act. Suffice to say that Delhi High Court in its order dated 9.11.2012 has held that section 8(1)(e) is not attracted in Col. V.K. Shad case and other cases. The relevant paras of the said order have been extracted herein above. Following the judgment of the Delhi High Court, I hold 15 that section 8(1)(e) is not attracted in the present case and the arguments advanced on behalf of the Army authorities need to be rejected.
30. To sum up, I hold that the proceedings against the appellant have been completed in all respects and that disclosure of requested information will not cause any prejudice to the proceedings pending against Col. Pramod Kumar and Col. Pant. I also hold that requested information, including JAG opinion, is not barred from disclosure under section 8(1)(e) of the RTI Act. In view of the above, I hereby direct the CPIO of the Army Headquarters to requisition the information requested for by the appellant in para 25 above from the concerned HQs viz. 11 Corps, Western Command and the Army HQs. and supply it to the appellant in a consolidated form on payment of requisite fee. Even so, in view of the special attributes of the Armed Forces and their Command structure, it would not be expedient to disclose identity and designation of officers who made notings in the files as it may adversely affect spirit de corps of the officer cadre. Hence, the CPIO will be at liberty to obliterate the names and designations of such officers in terms of section 10(1) of the RTI Act.
31. This order may be complied with in 05 weeks time.
Order reserved and pronounced on 15th January, 2013.
Sd/-
( M.L. Sharma ) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
( K.L. Das ) Deputy Registrar Address of parties :-
1. The CPIO, RTI Cell, ADG AE, G-6, D-1 Wing, Sena Bhawan, Gate No. 4, Integrated IHQ of MoD(Army), New Delhi-110011.
2. Shri S.K. Sahni, J-1191, Palam Vihar, Gurgaon-122017.16